- NOT FOR PUBLICATION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

Plaintiff

- Appellee,

v. LANE KELLY WHITTENBERG,

Defendant

- Appellant. No. 22

- 10086
D.C. No. 1:20

- cr - 00207

- JLT

- SKO

- 1

MEMORANDUM *

Appeal from the United States District Court for the Eastern District of California Jennifer L. Thurston, District Judge, Presiding Submitted August 25, 2023 * * San Francisco, California Before: BUMATAY, KOH, and DESAI, Circuit Judges. Lane Whittenberg pleaded guilty to one count of violating 18 U.S.C. § 922(g)(1), Felon in Possession of a Firearm. Whittenberg was sentenced to 70 months of imprisonment. He appeals the district court’s enhancemen t of his sentence under the United States Sentencing Guidelines ( U.S.S.G. )

* 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

AUG 29 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS- 2

§ 2K2.1(b)(6)(B). He also claims that his Fifth and Sixth Amendment rights were violated by the government’s introduction of new evidence at sentencing and its late disclosure of di scovery. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
1. The district court did not abuse its discretion in enhancing Whittenberg’s sentence under U.S.S.G. § 2K2.1(b)(6)(B). Whittenberg raises three challenges relating to the enhancement: (A) whether the district court applied the appropriate burden of proof; (B) whether the district court should have held an evidentiary hearing; and (C) whether the evidence showed that he committed the alleged crimes.
A. T he district court applied the correct burden of proof. Before the district court, Whittenberg conceded t hat the proper burden of proof was preponderance of the evidence. However, he now asserts that a heightened burden applies. We review for plain error. U nited States v. Depue , 912 F.3d 1227, 1234 (9th Cir. 2019). “ As ‘a general rule,’ factual findings underlying a sentencing enhancement need only be found by a preponderance of the evidence.” United States v. Lonich , 23 F.4th 881, 910 (9th Cir. 2022) (citat ion omitted). However, in some circumstances, w e have applied a heightened burden when “ the enhanced sentence is four or more offense levels higher ” and the enhanced sentence is “ more than double the initial sentencing range. ” Id. at 91 1

– 1 2 (outlining the factors to be- 3

considered but noting that the determination turns on these two factors) . In this case, the enhancement increased the offence level by four, not more. Further, the length of the sentence was not doubled. With the enhancement, the sentencing guideline range increased to 63

– 78 months from 41

– 51 months

. Thus, there was no plain error in applying the preponderance of the evidence standard.
B. Regardless of whether plain error or abuse of discretion applies, s ee United States v. Ber ry , 258 F.3d 971, 976 (9th Cir. 2001) (standard of review), the district court was not required to conduct an evidentiary hearing to resolve any alleged factual disputes. The district court recognized that there were some discrepanc ies in the victim s ’ stat ements but concluded that the video evidence confirmed the witnesses’ narratives about the alleged felony offenses of criminal threats and discharging a firearm with gross negligence

. Therefore, an evidentiary hearing would not have altered the district co urt’s findings. Accordingly, the district court did not abuse its discretion or commit plain error in not holding an evidentiary hearing.
C. T he district court did not clearly err in finding that Whittenberg committed the felony offense s of discharging a firearm with gross negligence and criminal threats . Even though both of these offenses are “wobblers” under California law, “a ‘wobbler’ is presumptively a felony and ‘remains a felony except when the discretion is actually exercised’ to make the crime a misdemeanor.- 4

Ewing v. California , 538 U.S. 11, 16 (2003) (quoting People v. Williams , 163 P.2d 692, 696 (Cal. 1945)). Thus, the district court properly considered the conduct to be felony offenses. 1
The video s and the police report s support the district court’s conclusion that Whittenberg d ischarg ed a f irearm with g ross n egligence . California Penal Code section 246.3(a) provides: any person who willfully discharges a firearm in a grossly negligent manner which could result in injury or death to a person is guilty of a public offense

. To be subjected to a four

- level sentencing enhancement under U.S.S.G. § 2K2.1(b)(6)(B), a defendant must have “ used or possessed any firearm or ammunition in connection with another felony offense .” Thus, the distric t court must find that the defendant committed another felony offense using the firearm in a manner that “facilitated or had the potential of facilitating” the defendant’s
felonious conduct. See United States v. Routon , 25 F.3d 815, 81 7 n.1 (9th Cir. 1994)

. Alternatively, a defendant can be subjected to the enhancement if he or she

“ possessed or transferred any firearm or ammunition with knowledge, intent, or reason to believe that it would be used or possessed in connection with another

1 Because only one felony is required for the four

- level enhancement to apply, we need not address the findings for both felony offenses. See U.S.S.G. § 2K2.1(b)(6)(B). Therefore , we only address discharging a firearm with gross negligence.- 5

felony offense .” U. S.S.G. § 2K2.1(b)(6)(B). In other words, a defendant need not have actually committed another felony, if there is “evidence to show that he had a ‘firm intent’ to use the [firearm] in connection with another felony .” United States
v. Noster , 590 F.3d 624, 634 (9th Cir. 2009). Whittenberg challenges the district court ’s findings that he committed this felony offense. Whittenberg relies upon Noster and United States v. Jimison , 493 F.3d 1148 (9th Cir. 2007), to assert that, because an element of the crime is gross negligence, which cannot be committed purposefully, there was no evidence of intent to use the gun to commit the felony. This argument lacks merit. I ntent is not relevant when a defendant actually committed the felony offense. Both Noster and
Jimison involved defendants who had not actually commit ted a nother felony offense but were alleged to have had the intent to commit another felony. See
Noster , 590 F.3d at 635 (noting that Noster “ planned to use the incendiary devices to bomb companies or commodi ties in a scheme to make money ” (emphasis added) ) ; Jimison , 493 F.3d at 1151 (explaining that there was insufficient evidence that the defendant had “formed a firm intent” to commit a felony offense). Here,
the district court found that Whittenberg’s disch arge of the firearm was willful, and, in discharging the firearm , he placed other people at risk because it was a “populated area.” Thus, Whittenberg actually committed this felony, therefore his
intent to commit a felony was not relevant. See Noster , 590 F.3d at 634

.- 6

Accordingly, the district court did not clearly err in finding Whittenberg committed this felony offense and did not abuse its discretion in enhancing Whittenberg’s sentence.
2. The government did not violate Whittenberg ’ s Fifth Amendment rig ht to due process or his Sixth Amendment right to notice. The government argued at sentencing that Whittenberg’s actions of firing a gun towards an unknown individual was not accounted for in the Presentence Report (PSR). The government also submitted evid ence that a bullet had gone through a window on the night of the incident. Even assuming that government ’s speculative comments amounted to improper conduct, the district court did not accept the government’s assertions when it imposed its sentence. Thus, there was no harm to Whittenberg. See 28 U.S.C. § 2111 (outlining that “ the court shall give judgment after an examination of the record without regard to errors or defects which do not affect the substantial rights of the parties ”). To the extent that Whittenberg asserts that the government’s late disclosure of evidence violated his rights, any error was harmless. Whittenberg obtained the discovery prior to his guilty plea, yet he did not make any objections and proceeded to change hi s plea. At sentencing, Whittenberg noted that the government turned over the discovery late , but admitted that an earlier disclosure would not have “changed anything in light of the underlying offense.” Thus,- 7

Whittenberg has failed to establish any prejudi ce. See United States v. Dupuy , 760 F.2d 1492, 1497 (9th Cir. 1985).
AFFIRMED.