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NOT FOR PUBLICATION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 enhancement 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
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§ 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 discovery. 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. The district court applied the correct burden of proof. Before the 

district court, Whittenberg conceded that the proper burden of proof was 

preponderance of the evidence. However, he now asserts that a heightened burden 

applies. We review for plain error. United 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) (citation omitted). However, in 

some circumstances, we 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 911–12 (outlining the factors to be 
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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, see 

United States v. Berry, 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 

discrepancies in the victims’ statements 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 court’s findings. Accordingly, the 

district court did not abuse its discretion or commit plain error in not holding an 

evidentiary hearing. 

C. The district court did not clearly err in finding that Whittenberg 

committed the felony offenses 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. 
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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 videos and the police reports support the district court’s conclusion that 

Whittenberg discharged a firearm with gross negligence. 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 district 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, 817 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.
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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. Intent is not 

relevant when a defendant actually committed the felony offense. Both Noster and 

Jimison involved defendants who had not actually committed another 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 commodities 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 discharge 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. 
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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 right 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 evidence 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 his 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, 
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Whittenberg has failed to establish any prejudice. See United States v. Dupuy, 760 

F.2d 1492, 1497 (9th Cir. 1985).

AFFIRMED.