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 -
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.
MATHESON, EBEL, and PHILLIPS, Circuit Judges.
MATHESON, CIRCUIT JUDGE.
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
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
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
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.
U.S.S.G. § 2K2.1(a)(4)(B)
§ 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 . . . .
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.
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.
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
morning of October 5, 2016, Mr. Spalding "physically
ejected" Mr. Bellamy from the house. ROA, Vol. 2 at
49-50. Approximately 12 hours later, ATF agents executed a
search warrant at the residence. 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 ...