FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

 v. 

ELIGIO MUNOZ, AKA Eligio Nunez, 

AKA Elisio Munoz,

Defendant-Appellant.

No. 21-10360 

D.C. No. 

2:20-cr-00176-

WBS-1 

OPINION

Appeal from the United States District Court

for the Eastern District of California

William B. Shubb, District Judge, Presiding

Argued and Submitted December 8, 2022

San Francisco, California

Filed January 11, 2023

Before: Susan P. Graber and Paul J. Watford, Circuit 

Judges, and Joseph F. Bataillon,* District Judge.

Opinion by Judge Watford

* The Honorable Joseph F. Bataillon, United States District Judge for the 

District of Nebraska, sitting by designation.
2 UNITED STATES V. MUNOZ

SUMMARY**

Criminal Law

The panel affirmed the sentence imposed on Eligio 

Nunez (aka Eligio Munoz), who was convicted of being a 

felon in possession of a firearm in violation of 18 U.S.C. § 

922(g)(1), in a case in which the district court imposed a 

two-level sentencing enhancement under U.S.S.G. § 

2K2.1(b)(1)(A) on the ground that the offense involved three 

firearms.

One of the firearms that formed the basis of the 

enhancement was a Polymer80, which is typically sold 

online as a kit of component parts and need not be 

serialized. Nunez argued that the Polymer80 could not be 

counted because it did not qualify as a “firearm” as that term 

is defined within the meaning of § 2K2.1(b)(1). 

Under Application Note 5, for a firearm to be counted, 

the defendant must have “unlawfully possessed” 

it. Rejecting Nunez’s argument that a firearm is “unlawfully 

possessed” under Application Note 5 only if the defendant 

possessed the gun in violation of federal law, the panel held 

that a firearm may be counted under § 2K2.1(b)(1) when the 

defendant’s possession of it violates a specific prohibition 

under state or federal law.

The panel disagreed, for two reasons, with the district 

court’s finding that Nunez’s possession of the Polymer80 

violated California Penal Code § 29180(c). First, 

** This summary constitutes no part of the opinion of the court. It has 

been prepared by court staff for the convenience of the reader.
UNITED STATES V. MUNOZ 3

§ 29180(c)’s requirement that the owner of an unserialized 

firearm apply for a serial number or other identifying mark 

does not render the owner’s possession of the gun 

unlawful. Second, the government presented no evidence 

that Nunez was in fact the owner of the Polymer80, much 

less that he owned the gun "as of July 1, 2018," as the statute 

then required.

The panel nevertheless agreed that the enhancement was 

proper under § 2K2.1(b)(1)(A) because Nunez unlawfully 

possessed the Polymer80 in violation of a different 

California statute, Penal Code § 29800. That statute, which 

is California’s analogue to § 922(g)(1), prohibits any 

“person who has been convicted of a felony” from having 

“any firearm” in his possession or under his custody or 

control. The panel noted that the district court necessarily 

found that the Polymer80 qualified as a firearm under the 

definition set forth in California Penal Code § 16520(a), 

which governs both § 29180(c) and § 29800, because it 

found that Nunez’s possession of the firearm violated 

§ 29180(c). In August 2020, § 16520(a) defined the term 

“firearm” to mean “a device, designed to be used as a 

weapon, from which is expelled through a barrel, a projectile 

by force of an explosion or other form of combustion.” The 

panel held that the district court did not err in finding that the 

Polymer80 qualified as a firearm under California law, as the 

facts establish by a preponderance of the evidence that the 

Polymer80 was capable of expelling “a projectile by the 

force of an explosion or other form of combustion.”
4 UNITED STATES V. MUNOZ

COUNSEL

Timothy Zindel (argued), Assistant Federal Public 

Defender, Sacramento, California, for Defendant-Appellant. 

Justin L. Lee (argued) and Jason Hitt, Assistant United 

States Attorneys; Camil A. Skipper, Assistant United States 

Attorney, Appellate Chief; Phillip A. Talbert, United States 

Attorney, Office of the United States Attorney, Sacramento, 

California, for Plaintiff-Appellee.

OPINION

WATFORD, Circuit Judge: 

The defendant in this case, Eligio Nunez (also known as 

Eligio Munoz), was convicted of being a felon in possession 

of a firearm in violation of 18 U.S.C. § 922(g)(1). On 

appeal, he argues that the district court abused its discretion 

by imposing a two-level sentencing enhancement under 

United States Sentencing Guidelines § 2K2.1(b)(1)(A). We 

conclude that the court properly imposed the enhancement. 

In August 2020, Nunez was arrested after officers 

attempted to pull him over for traffic violations. He led 

officers on a high-speed chase before abandoning the car at 

the end of a dirt road and fleeing on foot. Dry grass beneath 

the car soon caught fire, engulfing the vehicle in flames. The 

next day, officers searched the burned-out car and found two 

9-millimeter handguns inside a backpack near the front 

passenger seat. Nunez’s possession of those firearms 

formed the basis of his § 922(g)(1) conviction.
UNITED STATES V. MUNOZ 5

On the front passenger seat of the car, officers also found 

the partially destroyed remains of a third gun, known as a 

“Polymer80.” The lower portion of the gun was made of 

polymer, or plastic, and had melted in the blaze. The gun 

lacked a serial number. An officer testified at trial that

Polymer80s are typically sold online as kits of their

component parts. As a result, they need not be serialized and 

are colloquially known as “ghost guns.”

At sentencing, the parties disputed whether Nunez’s 

offense level should be increased under Sentencing 

Guidelines § 2K2.1(b)(1). That provision directs sentencing 

courts to increase the defendant’s offense level “[i]f the 

offense involved three or more firearms.” Id. The 

government argued that Nunez’s felon-in-possession offense 

involved three firearms—the two 9-millimeter handguns 

found in the backpack and the Polymer80 found on the 

passenger seat. Nunez argued that the Polymer80 could not 

be counted because it did not qualify as a “firearm” as that 

term is defined within the meaning of § 2K2.1(b)(1). The 

district court agreed with the government and found that 

Nunez’s offense involved three firearms. The court

therefore imposed a two-level enhancement under 

§ 2K2.1(b)(1)(A), which applies when the offense involves 

between three and seven firearms. That enhancement 

increased Nunez’s sentencing range from 84–105 months to 

100–120 months. The court ultimately sentenced Nunez to 

108 months in prison. 

On appeal, Nunez renews his contention that the 

Polymer80 does not constitute a “firearm” under 

§ 2K2.1(b)(1) and that his offense therefore involved only 

two firearms, not three. To resolve that contention, we must 

turn to the application notes to § 2K2.1. See United States 

v. Lambert, 498 F.3d 963, 966 (9th Cir. 2007). Application 
6 UNITED STATES V. MUNOZ

Note 1 states that, for purposes of this guideline, “firearm” 

“has the meaning given that term in 18 U.S.C. § 921(a)(3).” 

U.S.S.G. § 2K2.1 cmt. n.1. Section 921(a)(3), as relevant 

here, defines “firearm” to mean “any weapon (including a 

starter gun) which will or is designed to or may readily be 

converted to expel a projectile by the action of an explosive.” 

18 U.S.C. § 921(a)(3)(A). Nunez did not contest below, and 

does not contest on appeal, that the Polymer80 found in his 

possession qualifies as a firearm under that definition.

Application Note 5 further narrows the category of 

firearms that may be counted when applying the 

enhancement under § 2K2.1(b)(1). It provides: “For 

purposes of calculating the number of firearms under 

subsection (b)(1), count only those firearms that were 

unlawfully sought to be obtained, unlawfully possessed, or 

unlawfully distributed, including any firearm that a 

defendant obtained or attempted to obtain by making a false 

statement to a licensed dealer.” U.S.S.G. § 2K2.1 cmt. n.5

(emphasis added). The issue here is whether Nunez 

“unlawfully possessed” the Polymer80.

Nunez first contends that a firearm is “unlawfully 

possessed” under Application Note 5 only if the defendant

possessed the gun in violation of federal law. The 

government conceded that it could not prove Nunez 

possessed the Polymer80 in violation of federal law because 

it could not show that the gun had traveled in interstate 

commerce, an element of the felon-in-possession offense 

under 18 U.S.C. § 922(g). Nunez cites no authority 

supporting the proposition that Application Note 5’s 

reference to unlawful possession refers only to possession 

that is unlawful under federal law, and nothing in the text of 

Application Note 5 supports such a narrow reading. We 

therefore hold that a firearm may be counted under 
UNITED STATES V. MUNOZ 7

§ 2K2.1(b)(1) when the defendant’s possession of it violates 

a specific legal prohibition under federal or state law. See 

United States v. Gill, 864 F.3d 1279, 1280 (11th Cir. 2017) 

(per curiam) (so holding); see also United States v. Jones, 

635 F.3d 909, 919–20 (7th Cir. 2011) (same).

The government argued below, and the district court 

found, that Nunez unlawfully possessed the Polymer80 in 

violation of California law. We agree with the district 

court’s finding but for slightly different reasons. We are free 

to affirm the imposition of a sentencing enhancement “on 

any ground supported by the record even if it differs from 

the rationale of the district court.” United States v. CortezArias, 403 F.3d 1111, 1114 n.7 (9th Cir. 2005); see Gill, 864 

F.3d at 1280.

The district court found that Nunez’s possession of the 

Polymer80 violated California Penal Code § 29180(c). At 

the time Nunez possessed the Polymer80 in August 2020, 

that statute provided in relevant part:

By January 1, 2019, any person who, as of 

July 1, 2018, owns a firearm that does not 

bear a serial number assigned to it pursuant 

to either Section 23910 or Chapter 44 

(commencing with Section 921) of Part 1 of 

Title 18 of the United States Code and the 

regulations issued pursuant thereto, shall do 

all of the following: (1) Apply to the 

Department of Justice for a unique serial 

number or other mark of identification 

pursuant to Section 29182.

Cal. Penal Code § 29180(c) (2019). Section 29180(g) made

the failure to obtain a serial number for a handgun 
8 UNITED STATES V. MUNOZ

punishable by up to one year in jail and a fine not to exceed 

$1,000.

Section 29180(c) does not support finding that Nunez 

“unlawfully possessed” the Polymer80 under § 2K2.1(b)(1) 

for two reasons. First, § 29180(c) does not prohibit the 

possession of any class of firearms by anyone. Instead, it

requires the owner of an unserialized firearm to apply for a 

serial number or other identifying mark. Failing to comply 

with that requirement in no way renders the owner’s

possession of the gun unlawful under § 29180(c). Second, 

the government presented no evidence that Nunez was in 

fact the owner of the Polymer80, much less that he owned 

the gun “as of July 1, 2018,” as the statute then required.

Nevertheless, we agree with the government that the 

two-level enhancement was proper under § 2K2.1(b)(1)(A)

because Nunez unlawfully possessed the Polymer80 in 

violation of a different California statute, Penal Code 

§ 29800. That statute is California’s analogue to 18 U.S.C. 

§ 922(g)(1). It prohibits any “person who has been 

convicted of a felony” from having “any firearm” in his 

possession or under his custody or control. Cal. Penal Code 

§ 29800(a)(1).

Nunez does not dispute that at the time he possessed the 

Polymer80 he had been convicted of a felony. Nunez instead 

argues that the Polymer80 does not qualify as a “firearm” 

under California law. In August 2020, California law 

defined the term “firearm” as used in Penal Code § 29800 to 

mean “a device, designed to be used as a weapon, from 

which is expelled through a barrel, a projectile by the force 

of an explosion or other form of combustion.” Cal. Penal 

Code § 16520(a). The district court necessarily found that 

the Polymer80 qualified as a firearm under this definition 
UNITED STATES V. MUNOZ 9

because it found that Nunez’s possession of the Polymer80 

violated Penal Code § 29180(c). As noted earlier, that 

provision applies to anyone who owns a “firearm” without a 

serial number, and the same definition governs under both 

Penal Code § 29180(c) and Penal Code § 29800.

The district court did not err in finding that the 

Polymer80 qualifies as a firearm under California law. 

Officers found the Polymer80 on the front passenger seat of 

the car Nunez was driving, near the backpack containing the 

two 9-millimeter handguns. Inside the backpack, officers 

found a loaded magazine that fit the Polymer80 but did not 

fit either of the other two 9-millimeter handguns. These 

facts establish by a preponderance of the evidence that the 

Polymer80 was capable of expelling “a projectile by the 

force of an explosion or other form of combustion.” Cal. 

Penal Code § 16520(a); see United States v. Charlesworth, 

217 F.3d 1155, 1157–58 (9th Cir. 2000) (stating the 

applicable standard of proof). The Polymer80 therefore 

qualifies as a firearm under California Penal Code 

§ 29800(a), and Nunez’s possession of it was unlawful under 

that statute. The district court properly imposed a two-level 

enhancement under Sentencing Guidelines

§ 2K2.1(b)(1)(A).

AFFIRMED.