Dale Edward White challenges the 47-month sentence imposed by the district court
On January 2, 2016, White and his father, K.W., were discussing a problem White was having with the sights on one of his .22 caliber rifles while the two were driving to their Nashua, Iowa, residence. K.W. owned the residence and lived there with White and White's fiancee. When the two arrived at their residence, White retrieved the problem rifle, a Magtech .22LR, and brought it to K.W., who was seated in a chair in the living room. The rifle did not contain a magazine, but White did not check to see if it was loaded. The rifle slipped from White's hand and accidentally discharged as he handed it to K.W. The bullet struck K.W. in the head, causing his death.
Officers executed a search warrant at the residence later that day as part of their investigation into K.W.'s death. They recovered from the living room the Magtech rifle and spent shell casing, as well as an additional four rifles and two revolvers. Officers recovered from White's upstairs bedroom an extended-capacity, 25-round.22 caliber magazine, a second .22 caliber magazine, and .22 caliber ammunition. They recovered another .22 caliber magazine from a gun cabinet located at the top of the stairs to the second floor. A second search warrant was executed at the residence on January 5, 2016, resulting in the recovery of an additional 42 firearms from various locations throughout the house. Officers seized three rifles and three shotguns from the top of the stairs to the second floor; one rifle and five shotguns from the living room; one shotgun from the kitchen; four rifles and seven shotguns from a downstairs bedroom; four handguns, six rifles, and two shotguns from K.W.'s bedroom; and two handguns, two rifles, and two shotguns from White's bedroom. All told, officers recovered 49 firearms from the residence, eight handguns, 21 rifles, and 20 shotguns, none of which was secured in a safe, lock box, or gun cabinet. After officers found marijuana and methamphetamine paraphernalia in White's bedroom, he admitted to "being a user" of both drugs, having last "smoked" on the morning of January 5, 2016. White submitted a urine sample on January 6, 2016, which tested positive for the presence of amphetamine and methamphetamine.
White's presentence report (PSR) calculated a base offense level of 20 under § 2K2.1(a)(4)(B) of the U.S. Sentencing Guidelines Manual (U.S.S.G. or Guidelines) because the offense involved a semiautomatic firearm that was capable of accepting a large-capacity magazine. It also recommended a 6-level enhancement under Guidelines § 2K2.1(b)(1)(C) because the offense involved between 25 and 99 firearms. After a 3-level reduction for acceptance of responsibility, the PSR calculated a total offense level of 23, which, coupled with a criminal history category of I, resulted in an advisory sentencing range of 46 to 57 months' imprisonment.
White objected to the 6-level enhancement under § 2K2.1(b)(1)(C), arguing that only two of the firearms recovered from the residence "belonged" to him and that he did not have dominion over the residence owned by his father. In the alternative, he argued that he should be assessed a 2-level enhancement under § 2K2.1(b)(1)(A) because he was responsible for only seven firearms: the Magtech rifle and the six firearms recovered from his bedroom. The district court overruled White's objection and found that he was responsible for at least 25 firearms. The court reasoned that it was "immaterial who owned the firearms," but nevertheless took a "more conservative approach," concluding that White actually or constructively possessed the 26 "firearms found in his bedroom and in the common area" of the residence. After considering the 18 U.S.C. § 3553(a) factors, the court imposed the sentence set forth above.
White first argues that the district court improperly calculated his base offense level under § 2K2.1(a)(4)(B). Because White did not raise this claim of procedural error before the district court, we review only for plain error.
Section 2K2.1(a)(4)(B) applies if the defendant was a "prohibited person" at the time of the offense and the "offense involved a . . . semiautomatic firearm that is capable of accepting a large capacity magazine," which is defined in relevant part to mean:
U.S.S.G. § 2K2.1 cmt. n.2. The parties agree that, as a self-admitted drug user, White was a "prohibited person" within the meaning of 18 U.S.C. § 922(g)(3); that he possessed a large-capacity magazine for the Magtech rifle; and that there was no magazine attached to the Magtech rifle at the time of the incident. White argues, however, that the large-capacity magazine was not in "close proximity" to the Magtech rifle as required under § 2K2.1(a)(4)(B), because the rifle was recovered from the living room, while the large-capacity magazine was recovered from his upstairs bedroom.
White cannot carry his burden to show that the district court committed an error that was "clear or obvious" under the law at the time of the court's ruling.
White also argues that the district court erred in applying the 6-level enhancement under § 2K2.1(b)(1)(C) based on the number of firearms involved in the offense. He concedes that he possessed the Magtech rifle and the 6 firearms recovered from his bedroom, but he renews his contention that he did not possess the 19 additional firearms recovered from the common areas of the residence. The court's determination of the number of firearms involved in the offense for purposes of § 2K2.1(b)(1)(C) is a factual finding that we review for clear error.
"A defendant's possession of firearms may be actual or constructive, sole or joint."
The judgment is affirmed.