                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        AUG 23 2018
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.    17-30193

                Plaintiff-Appellee,             D.C. No. 1:16-cr-00112-SPW

 v.
                                                MEMORANDUM*
ALLEN EARL WITHERALL,

                Defendant-Appellant.

                   Appeal from the United States District Court
                           for the District of Montana
                    Susan P. Watters, District Judge, Presiding

                           Submitted August 15, 2018**

Before:      FARRIS, BYBEE, and N.R. SMITH, Circuit Judges.

      Allen Earl Witherall appeals from the district court’s judgment and

challenges his jury-trial conviction and 36-month sentence for being a 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 Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2). Witherall’s request for oral
argument is, therefore, denied.
      Witherall first contends that the evidence presented at trial was insufficient

to support his conviction. Viewing the evidence in the light most favorable to the

prosecution, there was sufficient evidence for a rational trier of fact to find beyond

a reasonable doubt that Witherall knowingly possessed a firearm. See United

States v. Nevils, 598 F.3d 1158, 1163-64 (9th Cir. 2010) (en banc). Officer

Nienhuis’s testimony, particularly when taken together with the WatchGuard video

and the testimony of Mitch Hoff, was enough for a rational juror to infer that

Witherall picked a pistol up off the ground and ran with it for a short distance, and

that he knew it was a gun when he picked it up.

      Witherall next argues that his sentence is substantively unreasonable. The

district court did not abuse its discretion. See United States v. Carty, 520 F.3d 984,

993 (9th Cir. 2008) (en banc). The above-Guidelines, 36-month sentence is

substantively reasonable in light of the 18 U.S.C. § 3553(a) sentencing factors and

the totality of the circumstances, including the dangerous nature of the offense

conduct, Witherall’s criminal history and repeated failure to comply with the terms

of supervised release, and the need to protect the public. See Gall v. United States,

552 U.S. 38, 59-60 (2007).

      AFFIRMED.




                                          2                                    17-30193
