                                                                            FILED
                           NOT FOR PUBLICATION                              OCT 18 2010

                                                                       MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 09-30419

              Plaintiff - Appellee,              D.C. No. 3:08-cr-00506-HA-1

  v.
                                                 MEMORANDUM *
KARUNA MANOTHAM,

              Defendant - Appellant.



                  Appeal from the United States District Court
                            for the District of Oregon
                Ancer L. Haggerty, Senior District Judge, Presiding

                      Argued and Submitted October 4, 2010
                                Portland, Oregon

Before: TASHIMA, PAEZ and CLIFTON, Circuit Judges.

       Karuna Manotham appeals his 37-month sentence imposed after his

conviction for Felon in Possession of a Firearm in violation of 18 U.S.C.

§ 922(g)(1). We have jurisdiction under 28 U.S.C. § 1291, and we affirm.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      Manotham argues that the district court erred when it applied a four-level

sentencing enhancement under U.S.S.G. § 2K2.1(b)(6) for the use of a firearm in

connection with another felony. Although Oregon dismissed the state charges

against Manotham, the district court properly found that his conduct constituted the

Oregon felony offense of unlawful use of a weapon, in violation of Or. Rev. Stat. §

166.220, when he pointed a gun at another person during a road rage incident.

Manotham contends, however, that unlawful use of a weapon is not “another

felony offense” under § 2K2.1(b)(6) because it is a firearms possession offense that

is expressly exempted by § 2K2.1, Application Note 14(C).

      Focusing on the second part of the three-part test adopted by this court in

United States v. Valenzuela, 495 F.3d 1127, 1134 (9th Cir. 2007), Manotham

argues that unlawful use of a weapon is categorically a firearms possession offense

because it contains as an element the possession of a firearm. We disagree.

Although possession of a weapon is implicit where a person uses a weapon

unlawfully, possession of a weapon is not an element of the offense. See Oregon

Criminal Jury Instruction No. 2403 (stating that elements of unlawful use of a

weapon are [1] that the act occurred in the proper jurisdiction, [2] that the act

occurred on or about a particular date, and [3] that the defendant intentionally

attempted to use unlawfully against the victim any dangerous or deadly weapon).


                                           2
Unlawful use of a weapon under Oregon law criminalizes unlawful use of a

weapon, not mere possession. Accordingly, unlawful use of a weapon is not a

firearms possession offense under the second prong of the Valenzuela test, and the

district court’s application of the § 2K2.1(b)(6) four-level enhancement was

proper.

      AFFIRMED.




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