USA V. ALLEN WITHERALL, No. 17-30193 (9th Cir. 2018)
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NOT FOR PUBLICATION FILED AUG 23 2018 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff-Appellee, No. U.S. COURT OF APPEALS 17-30193 D.C. No. 1:16-cr-00112-SPW v. MEMORANDUM* ALLEN EARL WITHERALL, Defendant-Appellant. Appeal from the United States District Court for the District of Montana Susan P. Watters, District Judge, Presiding Submitted August 15, 2018** Before: FARRIS, BYBEE, and N.R. SMITH, Circuit Judges. Allen Earl Witherall appeals from the district court’s judgment and challenges his jury-trial conviction and 36-month sentence for being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). We have jurisdiction under 28 U.S.C. § 1291, and we 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). Witherall’s request for oral argument is, therefore, denied. Witherall first contends that the evidence presented at trial was insufficient to support his conviction. Viewing the evidence in the light most favorable to the prosecution, there was sufficient evidence for a rational trier of fact to find beyond a reasonable doubt that Witherall knowingly possessed a firearm. See United States v. Nevils, 598 F.3d 1158, 1163-64 (9th Cir. 2010) (en banc). Officer Nienhuis’s testimony, particularly when taken together with the WatchGuard video and the testimony of Mitch Hoff, was enough for a rational juror to infer that Witherall picked a pistol up off the ground and ran with it for a short distance, and that he knew it was a gun when he picked it up. Witherall next argues that his sentence is substantively unreasonable. The district court did not abuse its discretion. See United States v. Carty, 520 F.3d 984, 993 (9th Cir. 2008) (en banc). The above-Guidelines, 36-month sentence is substantively reasonable in light of the 18 U.S.C. § 3553(a) sentencing factors and the totality of the circumstances, including the dangerous nature of the offense conduct, Witherall’s criminal history and repeated failure to comply with the terms of supervised release, and the need to protect the public. See Gall v. United States, 552 U.S. 38, 59-60 (2007). AFFIRMED. 2 17-30193
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