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United States v. Bellamy

United States Court of Appeals, Tenth Circuit

June 3, 2019

UNITED STATES OF AMERICA, Plaintiff - Appellee,
v.
STORM MICHAEL BELLAMY, Defendant-Appellant.

          Appeal from the United States District Court for the District of Kansas (D.C. No. 2:17-CR-20020-CM-1)

          Michael L. Belancio of Foland, Wickens, Roper, Hofer & Crawford, P.C., Kansas City, Missouri, for the Defendant - Appellant.

          Jared S. Maag, Assistant United States Attorney (Stephen R. McAllister, United States Attorney and Carrie N. Capwell, Assistant United States Attorney, District of Kansas, on the brief), Kansas City, Kansas, for the Plaintiff - Appellee.

          Before MATHESON, EBEL, and PHILLIPS, Circuit Judges.

          MATHESON, CIRCUIT JUDGE.

         In fall 2016, agents with the Bureau of Alcohol, Tobacco, Firearms and Explosives ("ATF") began investigating Storm Michael Bellamy, a convicted felon, for suspected methamphetamine distribution. On the morning of October 5, 2016, Mr. Bellamy's housemate ordered him to vacate the home. Twelve hours later, ATF agents executed a warrant to search the premises. In Mr. Bellamy's former bedroom, they discovered his personal effects, a rifle with a loaded large-capacity magazine attached, and a second large-capacity magazine nearby.

         Mr. Bellamy pled guilty to being a felon in possession of a firearm. The district court found that he possessed the rifle and the large-capacity magazines. It applied United States Sentencing Guidelines ("Guidelines" or "U.S.S.G.") § 2K2.1(a)(4)(B), which establishes a base offense level of 20 when a convicted felon possesses a semiautomatic firearm with a large-capacity magazine that is either attached or in close proximity to the firearm. U.S.S.G. § 2K2.1(a)(4)(B); see id. cmt. n.2. The court sentenced Mr. Bellamy to 40 months in prison.

         Mr. Bellamy challenges the procedural reasonableness of his sentence. Because he was ejected from the house, he argues he did not possess the rifle when agents seized it on the evening of October 5. He also claims there was insufficient evidence to show that the rifle he possessed earlier that morning had a large-capacity magazine attached or in close proximity to it. Mr. Bellamy thus argues the district court erred in assigning him a base offense level of 20 under § 2K2.1(a)(4)(B).

         The record contains ample support for the district court's finding that Mr. Bellamy possessed the rifle and the large-capacity magazines. Accordingly, the court did not abuse its discretion in sentencing him. Exercising jurisdiction under 28 U.S.C § 1291 and 18 U.S.C. § 3742(a), we affirm.

         I. BACKGROUND

         A. U.S.S.G. § 2K2.1(a)(4)(B)

         U.S.S.G. § 2K2.1(a) lists base offense levels for offenses involving the unlawful receipt, possession, or transportation of firearms or ammunition. The minimum base offense level for a felon in possession of a firearm is 14. U.S.S.G. § 2K2.1(a)(1)(6). But under § 2K2.1(a)(4)(B), the base offense level is 20 if:

the (i) offense involved a . . . semiautomatic firearm that is capable of accepting a large capacity magazine; . . . and (ii) defendant . . . was a prohibited person at the time the defendant committed the instant offense . . . .

         The commentary to this Guidelines provision specifies that a "'prohibited person' means any person described in 18 U.S.C. § 922(g)," which includes all convicted felons. U.S.S.G. § 2K2.1 cmt. n.3.[1] The commentary also explains:

[A] "semiautomatic firearm that is capable of accepting a large capacity magazine" means a semiautomatic firearm that has the ability to fire many rounds without reloading because at the time of the offense (A) the firearm had attached to it a magazine or similar device that could accept more than 15 rounds of ammunition; or (B) a magazine or similar device that could accept more than 15 rounds of ammunition was in close proximity to the firearm.

Id. cmt. n.2.

         B. Factual History[2]

         Mr. Bellamy had been convicted of several felonies before the events leading to this case. In September 2016, he moved into a home occupied by Robert Spalding, Jr. Soon after, the ATF began investigating Mr. Bellamy for suspected distribution of methamphetamine. As part of this investigation, ATF agents searched trash bins at the house and discovered drug paraphernalia, mail with Mr. Bellamy's name on it, and an empty box of Wolf .223 ammunition, which can be used in a 5.56-caliber rifle.[3]

         On the morning of October 5, 2016, Mr. Spalding "physically ejected" Mr. Bellamy from the house.[4] ROA, Vol. 2 at 49-50. Approximately 12 hours later, ATF agents executed a search warrant at the residence.[5] Mr. Bellamy was not present during the search. When the agents arrived at the house, they discovered Mr. Spalding hiding in the attic. Mr. Spalding informed them he had ejected Mr. Bellamy, who previously occupied two bedrooms on the first floor. He stated Mr. Bellamy had given him a Sig Sauer .380 handgun but had later taken it back. He said Mr. Bellamy used methamphetamine regularly and stored ...


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