NOT FOR PUBLICATION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

Plaintiff

- Appellee,

v. IVAN BRYANT LIZOLA,

Defendant

- Appellant. No. 18

- 10122
D.C. No. 4:17

- cr - 00715

- CKJ

- JR

- 1

MEMORANDUM *

Appeal from the United States District Court for the District of Arizona Cindy K. Jorgenson, District Judge, Presiding Submitted February 7, 2019 ** Phoenix, Arizona Before: HAWKINS, M. SMITH, and HURWITZ, Circuit Judges. Defendant

- Appellant Ivan Bryant Lizola (Defendant) appeals his 27

- month sentence for possession of ammunition by a convicted felon in violation of 18
U.S. C. §§ 922(g)(1) and 924(a)(2). We have jurisdiction pursu ant to 28 U.S.C. § 1291, and affirm.

* 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

FEB 11 2019 MOLLY C. DWYER, CLER K U.S. COURT OF APPEAL S2

1. Defe ndant contends that the district court abused its discre tion when it failed to apply a reduction provision in § 2K2.1(b)(2) of the Federal Sentencin g Guidelines (the Guidelines). That provision provides that “[i] f the def endant .

. . possessed all ammunit ion and firearms solely for lawful sporting purposes or collection, and did not unlawfully discharge or otherwise unlawfully use such firearms or ammunition, ” then the court should “ decrease the offense level determined above to level 6. ” U.S.S.G. § 2K2.1 (b)(2). Defendant argues that the ammunition was a collection, and that the government failed to show that any of the ammunition was designed for or capable of use in the homemade devices seized from him

. However, it is “[a] defendant who seeks a downward adjustment in his base offense level under section 2K2.1(b)(2) [who] bears the burden of proving, by a preponderance of the evidence, that he is entitled to the reduction .” United States v. Uzelac , 921 F.2d 204, 205 (9th Ci r. 1990). It is not the governmen t’s burden to prove otherwise. Furthermore, the absence of an intended illegal use does not satisfy a defendant’s burden of proving lawful use. Id. at 205

– 206. Here, given that Defendant possessed a homemade firearm alo ng with the ammunition, stored the ammunition in his car, and had prior convictions for weapons

- related misconduct , the district court did not abuse its discretion when it declined to apply the reduction provision.3

2. Defendant’s second argument

— that the district court incorrectly applied U.S.S.G. § 2K2.1(a)(6)

— is based on a flawed reading of the Guidelines. Section 2K2.1 establishes a base offense level of 14 if the defendant “ (A) was a prohibited person at the time the defendant committed the instant of fense .

. . or (C) is convicted under 18 U.S. C. § 922(a)(6) or § 924(a)(1)(A) and committed the offense with knowledge, intent, or reason to believe that the offense would result in the transfer of a firearm or ammunition to a prohibited person .” U.S.S.G. § 2K2.1(a)(6). Defendant does not dispute that he was a “prohibited person,” but contends that the government failed to prove he had “knowledge, intent, or reason to believe that the offense would result in the transfer of a firearm or ammunition to a pr ohibited person , ” as required by the final clause of subsection (a)(6)(C)

. Ho wever, that final clause only modifies subsection (a)(6)(C), and is not a requirement for subsection (a)(6)(A), which Defendant concedes is properly applicable here. Therefore, the district court correctly interpreted and applied § 2K2.1(a)(6). See United States v. Snipe , 515 F.3d 947, 954

– 55 (9th Cir. 2008); see also Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 144, 156 (2012) (discussing the last

- antecedent canon and the scope

of

- subparts canon ).
AFFIRMED.