NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,

Plaintiff

- Appellee,

v. THOMAS MARTIN ROBERTS,

Defendant

- Appellant. No. 19

- 30119
D.C. No. 2:16

- cr - 00070

- RMP

- 1

MEMORANDUM *

UNITED STATES OF AMERICA,

Plaintiff

- Appellee,

v. THOMAS MARTIN ROBERTS,

Defendant

- Appellant. No. 19

- 30120
D.C. No. 2:18

- cr - 00047

- RMP

- 1

Appeal from the United States District Court for the Eastern District of Washington Rosanna Malouf Peterson, District Judge, Presiding

Submitted July 10, 2020 * * Seattle, Washington

* 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). 

# FILED

JUL 14 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS2 19

- 30119

Before: CLIFTON, D.M. FISHER, ** * and M. SMITH, Circuit Judges. Thomas Roberts pled guilty to being a felon in possession of a firearm and ammunition, 1 possession of an unregistered firearm, 2 and cyberstalking

. 3 He appeals his sentence. We affirm.
The d istrict c ourt did not impermissibl y double count when it relied on the same weapon as the basis for both the base offense level, U.S.S.G. § 2K2.1(a)(4)(B), and an enhancement, U.S.S.G. § 2K2.1(b)(3)(B). “[ I ] mpermissible double counting occurs

. . . where one part of the Guidelines is applied to increase a defendant’s punishment on account of a kind of harm that has already been fully accounted for by the application of another part of the
Guidelines.” United States v. Reese , 2 F.3d 870, 895 (9th Cir . 1993). “If, on the other hand, it is possible to be sentenced under a particular offense guideline without having engaged in a certain sort of behavior, such behavior may be used
to enhance the offense level.” Id. Here, it was possible for Roberts to be assigned the base offense level without possess ing a destructive device

. A ll that was necessary was that he possess a “ firearm, ” U.S.S.G. § 2K2.1(a)(4) , a term that

*** The Honorable D. Michael Fisher, United States Circuit Judge for the U.S. Court of Appeals for the Third Circuit, sitting by designation. 1 18 U.S.C. §§ 922(g)(1), 924(a)(2)

. 2 26 U.S.C. §§ 5845(a), (f), and 5861(d)

. 3 18 U.S.C. §§ 2261A(2)(B), 2261(b)(5), (6).3 19

- 30119

has eight different statutory defin itions

— only one of which is “destructive
device , ” 26 U.S .C. § 5845(a). Therefore, Roberts’ possession of the destructive
device could be used to enhance his offense level. Reese , 2 F.3d at 895. 4
Nor did the Government need to present evidence establishing the length and bore diameter of the shotgun. Roberts ar gues that he did not waive this issue because he “broadly objected to the destructive device enhancement as double counting.” However, objecting to double counting (a legal issue) did not put the
Government or the d istrict c ourt on notice that evidence was needed about the gun’s measurements (a decidedly factual issue). Roberts’ failure to object to this aspect of his presentence report has two consequences : the d istrict c ourt was
entitled to “ accept[] as accurate” the report’s statement of the shotgun’s

measurements , and we “review[] only for plain error

. ” United States v. Scrivner , 114 F.3d 964, 967 (9th Cir. 1997). There was no plain error. The d istrict c ourt concluded that the firearm was

4 Although Reese is sufficient, by itself, to support affirmance, we also note that the d istrict c ourt applied the Guideline in accordance with the Application Note. See U.S.S.G. § 2K2.1 n.7 ( “ A defendant whose offen se involves a destructive device receives both the base offense level from the subsection applicable to a firearm listed in 26 U.S.C. § 5845(a) . . . and the applicable enhancement under subsection (b)(3).” ). “[A]n Application Note ‘that interprets or expl ains a guideline is authoritative unless it violates the Constitution or a federal statute, or is inconsistent with, or a plainly erroneous reading of, that guideline.’ ” United States v. Prien

- Pinto , 917 F.3d 1155, 1157 (9th Cir. 2019) (quoting Stinson v. United States , 508 U.S. 36, 38 (199 3 )).4 19

- 30119

both ( i ) a “shotgun having a barrel or barrels of less than 18 inches in length” and ( ii ) a “destructive device , ” specifically a “ weapon
. . . which will

. . . expel a projectile by the action of an explosive

. . . , the barrel or barrels of which have a
bore of more than one

- half inch in di ameter .” 26 U.S.C. § 5845(a)(1), (8) , (f)(2)

. Either conclusion was sufficient to apply U.S.S.G. § 2K2.1(a)(4) , so no barrel

length finding was necessary. As for the bore, we take judicial notice that a 12

- gauge shotgun has a bore
diameter of more than a half inch. W. Radio Servs. Co. v. Qwest Corp. , 530 F.3d 1186, 1192 n.4 (9th Cir. 2008) (court may “take judicial notice of” fact that is “capable of accurate and ready determination by resort to sources whose
accuracy cannot reason ably be questioned” (quoting Fed. R. Evid. 201(b)) ) ; United States v. Henry , 417 F.3d 493, 494 (5th Cir. 2005) (taking judicial notice
that a 12

- gauge shotgun has a bore diameter of more than a half inch); Migratory Bird Hunting Regulations for Restriction of Shotshell Length, Shot Size, and Shot Coatings, 58 Fed. Reg. 35,332 (June 30, 1993) (“ [T] he nominal bore diameter of a 12 gauge shotgun barrel is 0.730 inches

. ”).
T he d istrict c ourt did not err in applying U.S.S.G. § 2K2.1(b)(4), which provides for a t

wo - level enhancement “[i]f any firearm .

. . was stolen

. ” Roberts
contends there is no evidence he knew his weapons were stolen , but w e have held repeatedly that “the strict

- liability enhancement of § 2K2.1(b)(4) .

. . is5 19

- 30119

constitutional.” Prien

- Pinto , 917 F.3d at 1156.
Roberts’ sentence is not substantively unreasonable. The d istrict c ourt held a lengthy sentencing hearing and then provided “rational and meaningful” explanations (oral and written) for its decision to impose a within

- Guidelines

sentence. Uni ted States v. Ruiz

- Apolonio , 657 F.3d 907, 911 (9th Cir. 2011) (quoting United States v. Tomko , 562 F.3d 558, 568 (3d Cir. 2009)). Under the totality of the circumstances, there was no abuse of discretion. See United States v. Carty , 520 F.3d 984, 993 (9th Cir. 2008) (en banc)

. In addition, it was within
the d istrict c ourt’s discretion to direct that Roberts’ federal sentence run consecutively to his state sentence. Setser v. United States , 566 U.S. 231, 244 (2012).
AFFIRMED
.