United States v. Lonnie Parlor, 2 F.4th 807

Background

In April 2018 Parlor (a convicted felon and parolee) sold two firearms in a controlled buy; in July 2018 searches of his residence and storage unit uncovered three additional firearms, marijuana (~21.63 g), $5,000, scales, and numerous small baggies. One recovered 9mm had been reported stolen.
Parlor pleaded guilty to one count of unlawful possession of a firearm by a convicted felon (18 U.S.C. § 922(g)(1)) without a plea agreement.
The PSR applied three sentencing enhancements under the Guidelines: +2 for 3–7 firearms (U.S.S.G. § 2K2.1(b)(1)(A)) (five firearms total), +2 for possession of a stolen firearm (U.S.S.G. § 2K2.1(b)(4)(A)), and +4 for possessing a firearm in connection with another felony (drug trafficking) (U.S.S.G. § 2K2.1(b)(6)(B)).
With acceptance-of-responsibility credit, Parlor’s offense level rose to 29 and, with criminal-history category IV, yielded a Guidelines range above the statutory maximum; the district court sentenced Parlor to the statutory maximum 120 months.
Parlor appealed, challenging the three enhancements and arguing (inter alia) that the uncharged firearms were not relevant conduct, that the stolen-gun finding lacked sufficient proof, that the drug-trafficking enhancement rested on unreliable hearsay (CI), and that a heightened proof standard should apply.

Issues

Issue	Parlor's Argument	Government's Argument	Held
Whether three firearms found 11 weeks after the charged sale qualify as "involved" (U.S.S.G. § 2K2.1(b)(1)(A)) via relevant conduct	The later firearms are not sufficiently connected to the April offense because of the 11-week gap	Relevant-conduct principles (U.S.S.G. § 1B1.3) permit grouping repeated, substantially identical unlawful possessions by a prohibited person over time	Affirmed: the additional firearms were relevant conduct; 11-week interval does not defeat relatedness
Whether a two-level stolen-gun enhancement (U.S.S.G. § 2K2.1(b)(4)(A)) was supported	Insufficient evidence to show the 9mm was stolen	NCIC records showed the gun was reported stolen and Parlor offered no rebuttal	Affirmed: NCIC listing sufficed absent contrary evidence
Whether a four-level enhancement for possessing a firearm in connection with another felony (drug trafficking) (U.S.S.G. § 2K2.1(b)(6)(B)) was warranted	Amount of drugs was small; CI is unreliable hearsay and unrelated to the charged conduct	Firearm was found in close proximity to drugs, cash, scales, baggies; CI’s corroborated information may be considered at sentencing	Affirmed: proximity and paraphernalia support drug-trafficking nexus; CI’s statement was admissible and corroborative; Parlor declined offered CI testimony
Whether a heightened (clear-and-convincing) standard of proof was required for the disputed enhancements	Aggregated enhancements more than doubled Guidelines range so higher standard should apply	Parlor never requested the higher standard; Ninth Circuit precedent generally requires only preponderance absent clear factors mandating higher standard	No plain error: preponderance standard applied; Parlor failed to show prejudice even if error occurred

Key Cases Cited

United States v. Nichols, 464 F.3d 1117 (9th Cir.) (uncharged firearms may be relevant conduct when part of same scheme)
United States v. Vargem, 747 F.3d 724 (9th Cir. 2014) (relevant-conduct grouping appropriate where prohibited person repeatedly possesses firearms)
United States v. Brummett, 355 F.3d 343 (5th Cir. 2003) (uncharged firearms possessed on multiple occasions held relevant conduct)
United States v. Powell, 50 F.3d 94 (1st Cir. 1995) (contemporaneous or nearly contemporaneous uncharged firearms can be relevant conduct)
United States v. Chadwell, 798 F.3d 910 (9th Cir. 2015) (firearm found in close proximity to drugs supports §2K2.1(b)(6)(B) enhancement)
United States v. Jordan, 256 F.3d 922 (9th Cir. 2001) (factors for when clear-and-convincing standard may be required)
United States v. Valle, 940 F.3d 473 (9th Cir. 2019) (discussing evidentiary standard for sentencing factfinding)
Stinson v. United States, 508 U.S. 36 (1993) (Guidelines commentary is authoritative absent conflict)
United States v. Kerr, 876 F.2d 1440 (9th Cir. 1989) (anonymous informant hearsay generally unreliable at sentencing)