NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

 v. 

HACK TOWNSEND CULLING, Jr., 

Defendant-Appellant.

No. 22-10341 

D.C. Nos. 

2:20-cr-00029-WBS-1 

2:20-cr-00029-WBS 

MEMORANDUM*

Appeal from the United States District Court

for the Eastern District of California

William B. Shubb, District Judge, Presiding

Submitted June 13, 2024**

San Francisco, California

Before: GOULD, TALLMAN, and R. NELSON, Circuit Judges.

In June 2020, Defendant Hack T. Culling, Jr., pled guilty to the charge of 

being a felon in possession of a firearm. The charge stemmed from a traffic stop in 

April 2019 where law enforcement seized a loaded pistol and 241.4 grams of 

marijuana from Culling. During sentencing, the district court held that Culling’s 

* 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

JUN 17 2024

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
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two prior convictions under California Penal Code § 273.5(a) were crimes of 

violence under U.S.S.G. § 2K2.1(a)(2). The district court also imposed a fourlevel enhancement of Culling’s possession of marijuana for sale while carrying a 

firearm. Culling appeals his sentence, contending that: (1) a previous conviction 

under California Penal Code § 273.5(a) is not a crime of violence for the purposes 

of U.S.S.G. § 2K2.1(a)(2); and (2) the district court abused its discretion by

imposing a four-level enhancement for Culling’s possession of marijuana with 

intent to sell while carrying a firearm. We have jurisdiction under 18 U.S.C. 

§ 3742(a) and 28 U.S.C. § 1291, and we affirm.

1. “We review de novo the classification of a defendant’s prior conviction 

for purposes of applying the Sentencing Guidelines.” United States v. Tagatac, 36 

F.4th 1000, 1003 (9th Cir. 2022) (quoting United States v. Murillo-Alvarado, 876 

F.3d 1022, 1028 (9th Cir. 2017)). An offense can qualify as a “crime of violence” 

under U.S.S.G. § 2K2.1 if the offense satisfies the guideline’s “elements clause.” 

Under that standard, an offense is a crime of violence if it “has as an element the 

use, attempted use, or threatened use of physical force against the person of 

another.” U.S.S.G. § 4B1.2(a)(1); see § 2K2.1 cmt. n.1.

The Supreme Court has held that under the Armed Career Criminal Act’s 

elements clause—which is identical to the one used in U.S.S.G. § 2K2.1—an 

offense requiring mens rea of recklessness cannot be a “violent felony” because 
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“[t]he phrase ‘against another,’ when modifying the ‘use of force,’ demands that 

the perpetrator direct his action at, or target, another individual. Reckless conduct 

is not aimed in that prescribed manner.” Borden v. United States, 593 U.S. 420, 

429 (2021). Culling claims that, under Borden, the crime for which he was 

convicted is not a “crime of violence.”

California Penal Code § 273.5(a) makes it a felony to “willfully inflict[]

corporal injury resulting in a traumatic condition upon a victim.” Culling argues 

that under Borden, his previous convictions under § 273.5 are not crimes of 

violence under U.S.S.G. § 2K2.1 because California courts have interpreted 

§ 273.5 in a way that does not require the defendant to intend the injury. Thus, 

Culling argues, the statute covers reckless conduct which, under Borden, cannot be 

a crime of violence.

We have previously held that a conviction under § 273.5 constitutes a 

categorical crime of violence. See, e.g., United States v. Walker, 953 F.3d 577, 

579 (9th Cir. 2020); United States v. Laurico-Yeno, 590 F.3d 818, 820 (9th Cir. 

2010). In Walker, we reaffirmed United States v. Laurico-Yeno, which held that 

§ 273.5 “punishes a ‘person who willfully inflicts’ injury upon [another] ‘where 

willfully is a synonym for intentionally.’” Walker, 953 F.3d at 579 (quoting 

Laurico-Yeno, 590 F.3d at 821). Culling argues, however, that our precedent 

conflicts with Borden. We disagree. § 273.5(a)’s requirement that a defendant 
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willfully or intentionally “inflict[] corporal injury resulting in a traumatic condition 

upon a victim” is consistent with Borden, which held that the statute must require 

the defendant to “direct his action at, or target, another individual,” see Borden, 

593 U.S. at 429. To inflict an injury willfully or intentionally upon a victim, a 

defendant must direct his action at or target the victim. Thus, § 273.5 requires 

more than reckless conduct.

2. The parties also dispute whether the district court erred in imposing a 

four-level enhancement for Culling’s possession of marijuana for sale while 

carrying a firearm. We review the district court’s application of Sentencing 

Guidelines for abuse of discretion and review the district court’s findings of fact 

for clear error. United States v. Gasca-Ruiz, 852 F.3d 1167, 1170 (9th Cir. 2017)

(en banc). This standard is “significantly deferential” and requires a “definite and 

firm conviction that a mistake has been committed.” United States v. Murdoch, 98 

F.3d 472, 475 (9th Cir. 1996) (internal quotations and citation omitted). 

The district court did not clearly err in its finding that Culling possessed 241 

grams of marijuana. In the presentencing report, the probation officer submitted a 

factual finding that Culling possessed 241 grams of marijuana. Culling did not 

object to this finding. Thus, the district court did not err in accepting it as fact. See

FED. R. CRIM. P. 32(i)(3)(A) (sentencing court “may accept any undisputed portion 

of the presentence report as a finding of fact.”). Nor did the district court clearly 
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err in finding that Culling possessed the marijuana for sale. The district court 

inferred from the weight of the marijuana and the number of dosage units that 

Culling possessed for sale. Such an inference is not clearly erroneous. See 

Murdoch, 98 F.3d at 475. 

Finally, the district court did not abuse its discretion in applying the fourlevel enhancement under § 2K2.1(b)(6)(B). Under that guideline, a district court 

may impose an enhancement if a defendant “possesse[s] . . . any firearm . . . with 

knowledge, intent, or reason to believe that it would be used or possessed in 

connection with another felony offense.” § 2K2.1(b)(6)(B). Where “a firearm is 

found in close proximity to drugs,” the “enhancement necessarily applies 

because . . . the presence of the firearm has the potential of facilitating another 

felony offense.” United States v. Parlor, 2 F.4th 807, 814–15 (9th Cir. 2021) 

(quoting U.S.S.G. § 2K2.1 cmt. n.14(B)) (cleaned up). 

AFFIRMED.