In United States v. Kurns, --- F.4th ---, No. 23-3779 (9th Cir. 2025), the Court affirmed the district court’s sentence in a case in which Brandon Wade Kurns pleaded guilty to being a felon in possession of a firearm.
Kurns appeals his sentence, arguing that the district court improperly applied two guideline enhancements: U.S.S.G. § 2K2.1(a)(4)(B)(i)(I) for possession of a semiautomatic firearm with an extended magazine and § 2K2.1(b)(1)(B) for possessing eight or more firearms. Next, he claims that the district court violated the Fifth Amendment by drawing an adverse inference from his silence during sentencing. Finally, Kurns argues for the first time that we should reconsider his sentence in light of the Supreme Court’s decision in New York State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1 (2022). We affirm the district court’s sentence. A preponderance of the evidence proved the underlying facts required for each guideline enhancement, no Fifth Amendment violation occurred, and Kurns’ argument under Bruen is untimely at this late stage.The district court did not err by starting with a base offense level of 20. Video, documentary, and testimonial evidence proved Kurns’ possession of a semiautomatic firearm with a 30-round magazine by a preponderance of the evidence sufficient to satisfy Lucas II. As a result, “the district court’s findings of fact, and its application of those findings of fact to the correct legal standard” were not “illogical, implausible, or without support in inferences that may be drawn from facts in the record.”Given Kurns’ signatures on the transfer forms and Agent Enk’s testimony about Modern Pawn’s standard business practices, the district court did not clearly err by finding that Kurns more likely than not possessed the firearms he transferred.The district court did not clearly err in its determination that a preponderance of the evidence supported the finding that Kurns exercised the requisite control over the firearms to establish, at a minimum, constructive possession.Kurns’ second objection to the guideline enhancement for possessing eight or more firearms was that the district court violated his Fifth Amendment rights by drawing an adverse inference from his silence at sentencing.Kurns argues that the district court violated his Fifth Amendment privilege against self-incrimination and impermissibly relieved the government of its burden of proof by suggesting that Kurns could testify that he did not physically possess the firearms covered by the transfer forms for sales without accompanying video evidence.Unlike in Mezas de Jesus, the district court never implied that Kurns’ testimony was necessary to rebut arguments advanced by the government. Here the district court suggested that Kurns could “add to [his] evidence” by “deny[ing] that he touched those weapons under oath.” But contrary to Kurns’ argument that the district court viewed Kurns’ decision not to testify as an “absence of evidence,” this exchange showed only that Kurns could add to his already existing evidence if he elected to testify. Thus the district court was not viewing this exchange as a situation where the government had made a prima facie case and would require Kurns to take the stand to prevent the government from meeting the preponderance standard.We recognize, though, that even in a criminal sentencing there is good reason to be cautious about judicial comments on a refusal to testify. The Supreme Court has noted that “comment on the refusal to testify is a remnant of the ‘inquisitorial system of criminal justice,’ … which the Fifth Amendment outlaws.” Yet, there is no evidence that the district court weighed Kurns’ silence in determining his sentence. Accordingly, no Fifth Amendment violation occurred.
