NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

 v. 

JAMES EDWARD DEMPSTER,

Defendant-Appellant.

No. 23-30008

D.C. No.1:22-cr-00003-SPW-1

MEMORANDUM*

Appeal from the United States District Court

for District of Montana

Susan P. Watters, District Judge, Presiding

Submitted October 16, 2023**

Portland, Oregon 

Before: KOH and SUNG, Circuit Judges, and EZRA,*** District Judge.

* 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).

*** The Honorable David A. Ezra, United States District Judge for the 

District of Hawaii, sitting by designation.

FILED

OCT 26 2023

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 

James Edward Dempster (“Defendant”) appeals the district court’s decision 

not to apply a downward departure to his sentence for a conviction under 

§ 922(g)(1). We have jurisdiction to review under 28 U.S.C. § 1291. We affirm.

On January 20, 2022, a grand jury indicted Defendant for violating 

§ 922(g)(1), which prohibits individuals previously convicted of a crime 

punishable by imprisonment for a term exceeding one year from possessing 

firearms.1 Defendant pled guilty without the benefit of a plea agreement and did 

not sign an appeal waiver. At his sentencing hearing on January 11, 2023, 

Defendant agreed that his base offense level was 20 and that the resulting guideline 

range was 46 to 58 months imprisonment, but argued that his conduct mirrored a 

scenario envisioned by U.S. Sentencing Guidelines (“U.S.S.G.”) § 2K2.1(b)(2)

where a “person [who] possessed all ammunition and firearms solely for lawful 

sporting purposes” receives an offense level reduced to 6. Although Defendant 

acknowledged that he was ineligible for the “sporting exception” based on his 

previous drug offense, 2 Defendant contended that the fact that his conduct mirrors 

1 Defendant was first charged with possession with intent to distribute 

methamphetamine on August 27, 2014. His § 922(g)(1) violation occurred on 

November 23, 2021, when he was pulled over for traffic violations on his way 

home from a hunting trip and officers discovered three firearms in his vehicle. 

2 U.S.S.G. § 2K2.1(b)(2) reduces a defendant’s offense level down to six if the 

court finds that the defendant possessed ammunition and firearms “solely for 

lawful sporting purposes or collection.” However, the provision is clear that this 

reduction is inapplicable to defendants subject to “subsection (a)(1), (a)(2), (a)(3), 
3 

that contemplated in the sporting exception demonstrates his diminished 

culpability and entitles him to a downward departure. 

In response to Defendant’s argument, the district court remarked that 

Defendant was “well aware of the fact that [he] can’t possess firearms,” as he has 

been on supervised release since 2016 and “it’s pretty clear that the – not only the 

Sentencing Commission but Congress have concluded that people who have 

criminal histories such as yours are not – don’t get breaks when it comes to defying 

the conditions of your supervised release or the federal law in possessing 

firearms.” The district court found no excuse for Defendant’s actions, noting that 

it “looks to the Court . . . that you do what you want to do . . . and you’re not 

willing to comply with the conditions of supervision, not to mention state and 

federal law.” Finally, the district court discussed Defendant’s criminal history 

dating back to 2003 and raised a concern that “I don’t know exactly what it is 

that’s going to get your attention for you to understand that you have to respect the 

law and that those laws do apply to you.” For these reasons, the district court 

concluded that a sentence of 46 months imprisonment, the bottom of his guideline 

range, was appropriate pursuant to 18 U.S.C. § 3553(a).

(a)(4), or (a)(5).” Defendant concedes that his prior conviction triggered the 

application of (a)(4)(A), making him ineligible for the exemption.
4 

Defendant appeals his 46-month sentence, arguing that the district court 

abused its discretion in failing to apply a downward departure. When a judge 

decides to impose a sentence within the guideline range, she need not give a 

“lengthy explanation.” Rita v. United States, 551 U.S. 338, 356 (2007). The 

district court adequately considered Defendant’s legal argument as well as the 

particular circumstances of his hunting trip and criminal history. The sporting 

exception in §2K2.1(b)(1) expressly excludes individuals with criminal histories 

such as Defendant’s, and the district court’s well-reasoned decision took into 

account each factor relevant to imposing a sentence “sufficient, but not greater than 

necessary.” 18 U.S.C. § 3553(a). Accordingly, the district court did not abuse its 

discretion. 

AFFIRMED.