FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

No. 05-10365 Plaintiff-Appellee,

D.C. No.

v.  CR-04-00035-LRH

ROBERT DEAN ELLSWORTH,

OPINION Defendant-Appellant. 

Appeal from the United States District Court

for the District of Nevada

Larry R. Hicks, District Judge, Presiding

Argued and Submitted

April 6, 2006—San Francisco, California

Filed August 9, 2006

Before: Alfred T. Goodwin, Betty Binns Fletcher and

Raymond C. Fisher, Circuit Judges.

Opinion by Judge Fisher

9201
COUNSEL

Cynthia S. Hahn, Assistant Federal Public Defender, Reno,

Nevada, for the defendant-appellant. 

Robert Don Gifford, Assistant United States Attorney, Reno,

Nevada, for the plaintiff-appellee. 

OPINION

FISHER, Circuit Judge: 

Robert Dean Ellsworth was convicted of robbery and first

degree murder and sentenced to life imprisonment with the

possibility of parole by a Nevada state court in 1988. He was

paroled after serving 16 years. One year and one day after his

release, he was arrested while in the possession of a loaded

nine millimeter semiautomatic handgun. A subsequent search

of his car and room uncovered additional ammunition and a

shoulder holster for the weapon. Ellsworth pled guilty to

being a felon in possession of a firearm in violation of 18

U.S.C. § 922(g)(1). 

At the sentencing hearing and over Ellsworth’s objection,

the district court applied a two-level offense enhancement in

accordance with the advisory Sentencing Guidelines because

the firearm he possessed was stolen. See U.S.S.G.

§ 2K2.1(b)(4) (2003). The government admitted that it could

not prove Ellsworth knew that the gun was stolen, but according to the terms of this particular Guideline, knowledge is not

necessary for this offense enhancement to apply. See id.; see

also id. cmt. n.19 (“The enhancement under subsection (b)(4)

for a stolen firearm . . . applies whether or not the defendant

knew or had reason to believe that the firearm was stolen

. . . .”). The district court also increased Ellsworth’s criminal

history score by two categories because the court found that

9204 UNITED STATES v. ELLSWORTH
the Guidelines’ criminal history calculation significantly

underrepresented the seriousness of Ellsworth’s prior

offenses. Accordingly, the district court imposed a 78-month

sentence — roughly double the length the probation office

had recommended in its presentence report but well within the

10-year statutory maximum for a § 922(g)(1) offense. See 18

U.S.C. § 924(a)(2). 

Ellsworth appeals the two-level offense enhancement for

the stolen gun, arguing that the absence of a scienter requirement for stolen weapons is unconstitutionally irrational given

that knowledge is required for possession of stolen explosives. He also challenges the two-category increase in his

criminal history score and the overall reasonableness of his

sentence. We have jurisdiction under 28 U.S.C. § 1291, and

we affirm.

I. Standard of Review

We review the constitutionality of a Sentencing Guideline

de novo. See United States v. Marcial-Santiago, 447 F.3d

715, 717 (9th Cir. 2006). Further, we “review[ ] the district

court’s interpretation of the Sentencing Guidelines de novo,

the district court’s application of the Sentencing Guidelines to

the facts of this case for abuse of discretion, and the district

court’s factual findings for clear error.” United States v. Kimbrew, 406 F.3d 1149, 1151 (9th Cir. 2005). “Even though the

Guidelines are no longer mandatory after . . . United States v.

Booker, the district court should still consult them for advice

as to the appropriate sentence, and we therefore address the

merits of” challenges to the district court’s interpretation and

application of the Guidelines. Id. at 1152 (internal citations

omitted). “In the absence of Guidelines application error, . . .

we will then proceed to address challenges to the reasonableness of the sentence.” United States v. Cantrell, 433 F.3d

1269, 1280 (9th Cir. 2006). 

UNITED STATES v. ELLSWORTH 9205
II. Knowledge that the Firearm Was Stolen

[1] Ellsworth contends that the Sentencing Guidelines violate his Fifth Amendment right to equal protection by treating

supposedly similarly situated felons differently without a

rational basis. Specifically, the Guidelines impose a two-level

sentencing enhancement for possession of a stolen firearm

regardless of knowledge that the firearm was stolen, see

U.S.S.G. § 2K2.1(b)(4) (2003), whereas the two-level

enhancement for possession of stolen explosives applies only

when “the defendant knew or had reason to believe” the

explosives were stolen, see id. § 2K1.3(b)(2). Ellsworth

argues that the relatively harsher treatment of felons in possession of stolen firearms is irrational because “stolen explosives . . . are far more dangerous” than stolen firearms. We

disagree, and hold that the Guidelines’ different scienter

requirements for stolen firearms and stolen explosives are

rationally related to a legitimate government interest and thus

there is no equal protection violation. 

Both before and after United States v. Booker, 543 U.S. 220

(2005), we have applied the rational basis standard of review

to equal protection challenges to the Sentencing Guidelines

based on a comparison of allegedly disparate sentences. See

Marcial-Santiago, 447 F.3d at 719 (applying rational basis

review to equal protection challenge comparing length of sentences in jurisdictions that had adopted “fast-track” sentencing programs to those in jurisdictions that had not); United

States v. Harding, 971 F.2d 410, 412 (9th Cir. 1992) (holding

that differences in sentences between crack and powder

cocaine offenses “implicate[ ] neither a suspect class nor a

fundamental right” and therefore rational basis scrutiny is

appropriate); United States v. Fine, 975 F.2d 596, 604 (9th

Cir. 1992) (applying rational basis review to distinction

between which offenses are groupable under U.S.S.G.

§ 3D1.2(d) and which are not, and recognizing that “[t]he Due

Process Clause of the Fifth Amendment precludes the imposition of punishment based on arbitrary distinctions, and, in the

9206 UNITED STATES v. ELLSWORTH
sentencing context, ‘essentially duplicates’ an argument based

on equal protection” (quoting Chapman v. United States, 500

U.S. 453, 465 (1991)). 

[2] Under rational basis review, the distinction for sentencing purposes between felons in possession of stolen firearms

and those in possession of stolen explosives “must be upheld

against equal protection challenge if there is any reasonably

conceivable state of facts that could provide a rational basis

for the classification.” FCC v. Beach Commc’ns, 508 U.S.

307, 313 (1993) (emphasis added). It is reasonably conceivable that although explosives are in theory more deadly than

firearms when compared on an individualized basis, stolen

firearms are more readily obtainable by felons and therefore

more deadly than stolen explosives in the aggregate. “Or so

the legislature may think.” Williamson v. Lee Optical of

Okla., Inc., 348 U.S. 483, 489 (1955); see also id. at 487-88

(upholding an Oklahoma law under equal protection rational

basis review by positing numerous hypothetical justifications

for the law without considering whether or not the legislature

actually considered such justifications). 

[3] Two other circuits have expressly noted the “great dangers” posed by ex-felons in possession of stolen firearms and

reasoned that the absence of a scienter requirement in

§ 2K2.1(b)(4) “reflects this heightened danger.” United States

v. Schnell, 982 F.2d 216, 221 (7th Cir. 1992) (citing United

States v. Mobley, 956 F.2d 450, 454 (3d Cir. 1992)). Relying

on Mobley and Schnell, we have recognized that the two-level

enhancement for stolen firearms in § 2K2.1(b)(4) “was promulgated on the premise that stolen firearms are used disproportionately in the commission of crimes” and that “an exfelon who obtains a stolen firearm is more culpable than one

who legally obtains a firearm.” United States v. Goodell, 990

F.2d 497, 499 (9th Cir. 1993) (relying on rational basis review

to uphold § 2K2.1(b)(4) against a due process challenge).1

1The stolen firearm sentencing enhancement analyzed in Goodell had

been codified as U.S.S.G. § 2K2.1(b)(2) (1990) (“If the firearm was stolen

UNITED STATES v. ELLSWORTH 9207
Further, a “legislature must be allowed leeway to approach

a perceived problem incrementally” without violating the

Equal Protection Clause. Beach Communications, 508 U.S. at

316 (relying on Williamson, 348 U.S. at 489). In the late

1980s, the Sentencing Commission decided to remove the

scienter requirement from § 2K2.1(b)(4). “[B]oth the structure

and the history of the guidelines clearly show that the Sentencing Commission intended to omit the element of mens rea

in § 2K2.1(b)(4).” Schnell, 982 F.2d at 220 (emphasis added).

The Commission took no such steps to revise § 2K1.3(b)(2),

the analogous Guideline enhancement applicable to stolen

explosives. The Commission’s revision of § 2K2.1(b)(4) and

inaction with respect to § 2K1.3(b)(2) may reflect a rational,

but incremental, reform of a number of Guidelines concerned

with dangerous stolen items in the possession of felons. 

[4] Lastly, Ellsworth argues that the Sentencing Commission has failed to “bow to the specific directives of Congress”

with respect to § 2K2.1(b)(4). United States v. LaBonte, 520

U.S. 751, 757 (1997). More specifically, he contends that the

Commission’s decision to remove scienter from § 2K2.1(b)(4)

“is at odds with [Congress’] plain language,” id. at 757, as

expressed in 18 U.S.C. § 922(j), a statute that criminalizes the

possession of a stolen firearm by “any person” who “know[s]

or ha[s] reasonable cause to believe that the firearm or ammunition was stolen.” But unlike the conflict addressed in

LaBonte between the Sentencing Commission’s commentary

and Congress’ intent, here there is no conflict between the

lack of a scienter requirement in the § 2K2.1(b)(4) sentencing

enhancement and the scienter requirement in 18 U.S.C.

§ 922(j). 

or had an altered or obliterated serial number, increase by 2 levels.”) —

the enhancement was moved to § 2K2.1(b)(4) in 1991. See Goodell, 990

F.2d at 498 n.1. Save for the substitution “any firearm” for “the firearm”

and the addition of a comma after “was stolen,” § 2K2.1(b)(2) (1990) is

identical to § 2K2.1(b)(4) (2003). The slight differences between them are

not relevant in this case. 

9208 UNITED STATES v. ELLSWORTH
[5] Although superficially similar to the statutory offense in

§ 922(j), § 2K2.1(b)(4) is only a Guideline enhancement and

not an independent basis for criminal liability. As applied to

Ellsworth, the § 2K2.1(b)(4) enhancement increases the culpability of felons in possession of stolen firearms, a much

smaller and distinct category of persons than the broad “any

person” category covered by § 922(j). Because “Congress has

called upon the Commission to exercise its judgment about

which types of crimes and which types of criminals are to be

considered similar for the purposes of sentencing,” Mistretta

v. United States, 488 U.S. 361, 377-78 (1989), and because

Congress expressly intended that “an ex-felon may not legitimately possess any firearm,” Goodell, 990 F.2d at 499

(emphasis added), we cannot infer congressional intent

regarding the mens rea requirement for a felon who possesses

a stolen firearm from the mens rea requirement for the generic

category of “any person” who possesses a stolen firearm. 

[6] Similarly, the absence of a requirement that a felon who

possesses a stolen firearm know that the firearm is stolen is

distinguishable from the situation in Staples v. United States,

511 U.S. 600 (1994). The defendant in Staples did not know

that his gun had the requisite characteristics to classify it as

a machine gun. See id. at 609. However, as discussed above,

§ 2K2.1(b)(4) was applied to enhance Ellsworth’s sentence

only after he was convicted of an offense under 18 U.S.C.

§ 922(g)(1), which prohibits felons from possessing any firearms, not just stolen firearms. Ellsworth never suggests that

he did not know that the nine millimeter semiautomatic handgun he possessed was a firearm. 

[7] The district court did not err in applying the two-level

stolen-weapon enhancement.

UNITED STATES v. ELLSWORTH 9209
III. Underrepresented Criminal History Score and

Reasonableness

Ellsworth next contends that the district court’s twocategory increase in his criminal history score violated his

Sixth Amendment jury trial right, see Taylor v. United States,

495 U.S. 575 (1990), and his Fifth Amendment right to due

process. Both arguments lack merit. Moreover, Ellsworth’s

sentence — which the district court based in part on “stale”

prior offenses that would not ordinarily be counted towards

his criminal history score because they were committed too

long ago to be considered under U.S.S.G. § 4A1.2(e) (2003)

— was reasonable.2

On appeal, Ellsworth argues for the first time that “the district court erred in increasing [his] criminal history category

from III to V because no documentation was provided to

prove up the priors pursuant to Taylor . . . .” Accordingly, we

must determine whether that increase in his criminal history

score constituted plain error. See FED. R. CRIM. P. 52(b) (“A

plain error that affects substantial rights may be considered

even though it was not brought to the court’s attention.”)

Because Ellsworth fails the first requirement of plain error

review — “that there indeed be an ‘error,’ ” United States v.

2U.S.S.G. § 4A1.2(e) (2003) reads in relevant part as follows: 

(e) Applicable Time Period 

(1) Any prior sentence of imprisonment exceeding one year and

one month that was imposed within fifteen years of the defendant’s commencement of the instant offense is counted. Also

count any prior sentence of imprisonment exceeding one year and

one month, whenever imposed, that resulted in the defendant

being incarcerated during any part of such fifteen-year period. 

(2) Any other prior sentence that was imposed within ten years

of the defendant’s commencement of the instant offense is

counted. 

(3) Any prior sentence not within the time periods specified

above is not counted . . . . 

9210 UNITED STATES v. ELLSWORTH
Olano, 507 U.S. 725, 732 (1993) — his Taylor argument is

without merit. 

Ellsworth misapprehends the instances where the Taylor

categorical and modified categorical approaches are applicable. We rely upon Taylor in the context of sentencing to determine whether a prior conviction fits within the scope of a

generically defined crime, such as an “aggravated felony” or

a “crime of violence.” See, e.g., United States v. RiveraSanchez, 247 F.3d 905, 907 (9th Cir. 2001) (en banc) (sentencing); cf. Morales-Alegria v. Gonzales, 449 F.3d 1051,

1057 (9th Cir. 2006) (removal). 

[8] However, for the most part a criminal history calculation is not predicated on the commission of an underlying

generically defined crime. Instead, the criminal history score

looks to the defendant’s prior sentence of imprisonment, the

length of that sentence, the defendant’s parole status and the

length of time between his commission of the instant offense

and his release from a previous term of imprisonment. See

U.S.S.G. § 4A1.1 (2003). The Taylor problem does not arise

when dealing with such criminal history facts because they

are independent of the nature of the underlying offense. Only

subsection (f) of § 4A1.1 could potentially raise a cognizable

Taylor issue, because it refers to an underlying prior conviction for “a crime of violence.” However, the district court, in

evaluating whether Ellsworth’s criminal history score was

underrepresented due to exclusion of stale offenses, did not

rely on § 4A1.1(f). Instead, the court looked to the other subsections of § 4A1.1 to determine what Ellsworth’s criminal

history score would have been had his previous sentences not

been too old to be considered under § 4A1.2(e). See supra

note 2. Therefore, the district court did not commit a Taylor

error. 

Next, Ellsworth argues that the district court violated his

Fifth Amendment due process right when it relied upon what

he calls the “unsubstantiated priors” in the presentence report.

UNITED STATES v. ELLSWORTH 9211
However, Ellsworth conceded at the sentencing hearing that

the presentence report listing his prior offenses was factually

accurate. Accordingly, he has waived any challenge to the

accuracy of the presentence report. See Olano, 507 U.S. at

733 (“[W]aiver is the intentional relinquishment or abandonment of a known right . . . . [W]aiver . . . extinguish[es] an

‘error’ under Rule 52(b).” (internal citations and quotation

marks omitted)). 

[9] We understand Ellsworth’s final criminal history argument to be a “challenge[ ] to the reasonableness of the overall

sentence in light of all the 18 U.S.C. § 3553(a) factors.” Cantrell, 433 F.3d at 1280. Ellsworth contends that the district

court “unreasonably [gave] undue weight to the murder for

which Mr. Ellsworth was already being punished in both the

State and federal systems” and that, “except for his conviction

in Nevada for first degree murder, . . . his criminal history

consisted of little more than misdemeanors with one prior felony burglary . . . .” We conclude that the district court did not

give undue weight to Ellsworth’s murder conviction and that

it was reasonable for the district court to increase his criminal

history score from a category III to a category V. 

In United States v. Menyweather, 447 F.3d 625, 634 (9th

Cir. 2006), we recognized that post-Booker district courts may

now engage in a “broader appraisal . . . of the defendant’s history and characteristics for reasons extending beyond the

Guidelines” when deciding upon an appropriate sentence.

(Internal quotation marks and citations omitted.) The district

court properly understood and articulated the role that advisory Guidelines play in sentencing: “[U]nder Booker and Fanfan, [this court] has a certain amount of discretion to go

beyond the guidelines or below the guidelines, but my first

obligation is to consider the guidelines.” Accord Kimbrew,

406 F.3d at 1152 (“Even though the Guidelines are no longer

mandatory after . . . United States v. Booker, the district court

should still consult them for advice as to the appropriate sentence . . . .”). 

9212 UNITED STATES v. ELLSWORTH
The district court discussed at length “the nature and circumstances of the offense” and Ellsworth’s “history and characteristics.” 18 U.S.C. § 3553(a)(1).3

 It noted that Ellsworth,

“this convicted murderer[, was] seated in the casino with a

fully-loaded semiautomatic nine millimeter weapon which

[had] recently been stolen from a law enforcement officer.”

“[T]he presence of the holster [purchased by Ellsworth] and

the loading of the weapon suggests that those were intentional

acts by Mr. Ellsworth that were designed and intended to

allow him to carry a loaded weapon . . . on more than one

occasion.” 

Explaining its decision to consider what Ellsworth’s criminal history score would have been were his older convictions

added in, the court reasoned that 

[i]t is only because he was in the Nevada State

Prison on a life sentence that these prior convictions

became stale under the sentencing guidelines and

time dated. . . . [N]ormally a defendant who is convicted of first degree murder and sentenced to a life

sentence will . . . seldom, if ever, have that conviction come back to be calculated again in a subsequent offense. 

The court concluded that Ellsworth’s criminal history “closely

resembles a V criminal history category as that is applied generally to criminal history V defendants.” In reaching that con3The sentencing court does not need to discuss explicitly all of the

§ 3553(a) factors. See United States v. Mix, 450 F.3d 375, 381 (9th Cir.

2006) (“Judges need not rehearse on the record all of the considerations

that 18 U.S.C. § 3553(a) lists; it is enough to calculate the range accurately

and explain why (if the sentence lies outside it) this defendant deserves

more or less.” (internal citation and quotation marks omitted)). However,

“after Booker, the district court still is required to articulate the reasons for

the extent of the departure in sufficiently specific language to allow appellate review.” Menyweather, 447 F.3d at 635 (internal quotations marks

omitted). The district court satisfied that requirement here. 

UNITED STATES v. ELLSWORTH 9213
clusion, the district court did not give undue weight to

Ellsworth’s murder and robbery convictions, as Ellsworth

suggests. The court was at least as concerned (if not more)

about the nature of the instant offense and the length and seriousness of Ellsworth’s criminal history as it was about the

heinousness of the murder he had committed. 

We also disagree with Ellsworth’s characterization of his

criminal history before his murder and robbery convictions as

not being particularly serious, or at least no more serious than

that of the defendant in United States v. Bad Marriage, 392

F.3d 1103, 1115 (9th Cir. 2004). Ellsworth is plainly a more

serious offender than was Bad Marriage — most obviously

because of Ellsworth’s murder and robbery convictions. Further, his other prior convictions (and terms of imprisonment)

for burglary, battery, possession and sale of a switchblade and

grand larceny were also serious, especially when considered

together. We conclude that the district court’s characterization

of Ellsworth’s criminal history was reasonable: “[I]t’s certainly an aggravated criminal history[,] and it reflects both

violent and intentional criminal conduct over an extended

period of time which is egregious to the point that it certainly

supports the upward placement in the V.” Therefore the twocategory increase in Ellsworth’s applicable criminal history

score was reasonable as well.

IV. Conclusion

The different scienter requirements of the sentencing

enhancements for felons in possession of stolen firearms and

stolen explosives are rationally related to a legitimate government interest and do not violate the Equal Protection Clause.

There was no need for the district court to conduct an analysis

under Taylor v. United States, 495 U.S. 575 (1990), when it

relied on Ellsworth’s “stale” prior offenses to increase his

criminal history score. Ellsworth’s admission during sentencing that the presentence report was accurate precludes his

Fifth Amendment due process claim. The sentence imposed

9214 UNITED STATES v. ELLSWORTH
by the district court, based in part on prior offenses that would

not ordinarily be counted towards Ellsworth’s criminal history

score under U.S.S.G. § 4A1.2(e) (2003), was reasonable. 

AFFIRMED. 

UNITED STATES v. ELLSWORTH 9215