NOT FOR PUBLICATION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 APPEALS
2 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,2and cyberstalking.

3 He 

appeals his sentence. We affirm.

The district court did not impermissibly 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 possessing a destructive device. All 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 definitions—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 argues 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 district court 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 district court 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 district court concluded that the firearm was 

4 Although Reese is sufficient, by itself, to support affirmance, we also note that 

the district court applied the Guideline in accordance with the Application Note. 

See U.S.S.G. § 2K2.1 n.7 (“A defendant whose offense 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 explains 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 (1993)).
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 diameter.” 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 barrellength 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 reasonably 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.”).

The district court did not err in applying U.S.S.G. § 2K2.1(b)(4), which 

provides for a two-level enhancement “[i]f any firearm . . . was stolen.” Roberts 

contends there is no evidence he knew his weapons were stolen, but we have 

held repeatedly that “the strict-liability enhancement of § 2K2.1(b)(4) . . . is 
5 19-30119 

constitutional.” Prien-Pinto, 917 F.3d at 1156.

Roberts’ sentence is not substantively unreasonable. The district court held 

a lengthy sentencing hearing and then provided “rational and meaningful” 

explanations (oral and written) for its decision to impose a within-Guidelines 

sentence. United 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 district court’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.