                                                                           FILED
                           NOT FOR PUBLICATION                              JAN 06 2015

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 13-30142

              Plaintiff - Appellee,              D.C. No. 3:12-cr-05039-RBL-1

  v.
                                                 MEMORANDUM*
KENNETH WAYNE LEAMING,

              Defendant - Appellant.



UNITED STATES OF AMERICA,                        No. 13-30148

              Plaintiff - Appellee,              D.C. No. 3:12-cr-05039-RBL-2

  v.

DAVID CARROLL STEPHENSON,

              Defendant - Appellant.


                   Appeal from the United States District Court
                     for the Western District of Washington
                   Ronald B. Leighton, District Judge, Presiding

                     Argued and Submitted December 8, 2014
                              Seattle, Washington

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: HAWKINS, McKEOWN, and TALLMAN, Circuit Judges.

      Kenneth Leaming appeals his convictions and sentence for filing false liens

against government officials, harboring fugitives, and being a felon in possession

of a firearm. David Stephenson appeals his sentence for filing false liens. We

affirm Leaming’s convictions, but vacate his sentence and remand for

resentencing. We affirm Stephenson’s sentence.

I.    Leaming’s Convictions

      Leaming’s contention that his convictions for filing false liens must be

overturned because the documents he filed were not actually liens is not supported

by the record. Not only were the documents titled “liens,” Leaming repeatedly

indicated in phone calls and letters his belief that the documents would enable him

to seize property from the named victims. Based on this evidence, a rational juror

could have found beyond a reasonable doubt that Leaming filed or attempted to file

a “lien” or “encumbrance” under 18 U.S.C. § 1521. See Jackson v. Virginia, 443

U.S. 307, 319 (1979). We also reject Leaming’s argument that the act of filing a

false lien is constitutionally protected speech.

      We need not address Leaming’s claim that § 1521 does not protect former

government officials. One of the victims named in Count III was a current



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government official, and the jury unanimously agreed that Leaming filed a false

lien against him. If there was any error in naming a retired official as a victim,

which we do not decide, it was harmless.

      Sufficient evidence also supports Leaming’s conviction for harboring

fugitives in violation of 18 U.S.C. § 1071. Trial testimony and documents

recovered from Leaming’s home reflected that Leaming knew his houseguests

were fugitives, and that he was actively working to help them “avoid[] detection

and apprehension.” United States v. Hill, 279 F.3d 731, 738 (9th Cir. 2002)

(quoting United States v. Yarbrough, 852 F.2d 1522, 1543 (9th Cir. 1988)).

      Leaming contends that his conviction for firearms possession violates the

Commerce Clause and the Second Amendment. The requirements of the

Commerce Clause were satisfied because undisputed evidence established that the

guns found in Leaming’s home moved in interstate commerce. See United States

v. Henry, 688 F.3d 637, 641-642 & n.5 (9th Cir. 2012). We reject Leaming’s

Second Amendment claim because convicted felons do not have a constitutional

right to bear arms. United States v. Vongxay, 594 F.3d 1111, 1117-18 (9th Cir.

2010).

II.   Leaming’s Sentence




                                           3
      Leaming argues that the district court improperly calculated his Sentencing

Guidelines range when it applied a six-point enhancement for “conduct evidencing

an intent to carry out such threat.” U.S.S.G. § 2A6.1(b)(1). As the government

acknowledges, Leaming objected to this enhancement before his sentencing. We

conclude that the district court’s decision to apply this enhancement was a

“significant procedural error.” United States v. Carty, 520 F.3d 984, 993 (9th Cir.

2008) (en banc).

      Both the presentence report and the district court at sentencing referred to

Guidelines Section 2A6.1(b)(1) as an enhancement for conduct evidencing an

intent to carry out “the offense.” However, the enhancement only applies to

defendants who engage in conduct evidencing an intent to carry out “such threat.”

Although Leaming did carry out the offense of filing a false lien, nothing in the

record supports the conclusion that Leaming made a “threat” within the meaning of

Section 2A6.1(b)(1).

      This error was not harmless. The district court rejected the government’s

request for an extraordinary sentence and gave Leaming a sentence within the

Guidelines range. We vacate and remand for resentencing without application of

the six-point enhancement under Section 2A6.1(b)(1).




                                          4
       We reject Leaming’s other claims of sentencing error. The record is clear

that Leaming filed “more than two false liens,” warranting an enhancement under

U.S.S.G. § 2A6.1(b)(2)(B). It was not impermissible double-counting for the

district court to apply an enhancement under Section 3A1.2 based on the

government official status of the victim. United States v. Williams, 14 F.3d 30, 31-

32 (9th Cir. 1994) (per curiam).

III.   Stephenson’s Sentence

       Stephenson claims that the district court erred in calculating his Guidelines

range and that his sentence is substantively unreasonable. Because Stephenson did

not object to the Guidelines calculation before sentencing, we review for plain

error, which is “(1) error, (2) that is plain, and (3) that affects substantial rights.”

United States v. Hammons, 558 F.3d 1100, 1103 (9th Cir. 2009) (quotation marks

and citations omitted).

       Any claimed error in the calculation of Stephenson’s Guidelines range did

not affect his substantial rights. There is not a “reasonable probability” that the

district court would impose a different sentence on remand. United States v.

Joseph, 716 F.3d 1273, 1280 (9th Cir. 2013). The sentencing judge, who had

previously sentenced Stephenson in 2006, thoroughly explained why the

Sentencing Guidelines did not reflect Stephenson’s relentless efforts to harass


                                             5
federal officials. Stephenson has multiple felony convictions, and he plotted the

current offense from prison. He showed no remorse for his actions and continues

to challenge the legitimacy of federal authority.

      For the same reasons, we also hold that the judge’s decision to impose the

statutory maximum sentence was not substantively unreasonable.1

      AFFIRMED in part, VACATED in part, and REMANDED for resentencing

as to Leaming. We AFFIRM Stephenson’s sentence.




      1
        Because they are both represented by counsel, we decline to entertain the
multiple pro se Circuit Court filings by Leaming and Stephenson. See United
States v. Bergman, 813 F.2d 1027, 1030 (9th Cir. 1987).

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