Brandon Wade Kurns, a person with a prior state felony conviction for criminal endangerment, worked at a pawn shop in Helena, Montana, where he sold firearms and ammunition. In July 2021, ATF agents searched the shop following an investigation into stolen gunpowder and seized evidence indicating Kurns had possessed several firearms. Kurns pleaded guilty to one count of being a felon in possession of a firearm under 18 U.S.C. § 922(g)(1). At sentencing, the district court applied two sentencing guideline enhancements: one for possessing a semiautomatic firearm capable of accepting a large-capacity magazine, and another for possessing eight or more firearms. Kurns objected to both enhancements, arguing the evidence was insufficient and that the court violated his Fifth Amendment rights by implying he should testify to rebut the government's case. He was sentenced to 36 months in prison, a downward variance from the advisory guideline range of 84 to 105 months.
The panel addressed three primary issues. First, regarding the enhancement for a semiautomatic firearm with a large-capacity magazine, the court noted that the standard of proof for guideline enhancements is a preponderance of the evidence, not clear and convincing evidence, following the en banc decision in United States v. Lucas II. The court held that an ATF agent's testimony, based on 18 years of experience and the physical characteristics of the firearm in surveillance photographs, was sufficient to meet this standard. The agent's inability to rule out the possibility of a replica or .22 caliber weapon was not dispositive given the context of the pawn shop's business and the lack of seized replicas. Second, concerning the enhancement for possessing eight or more firearms, the court found that Kurns's signatures on ATF transfer forms, coupled with testimony that pawn shops typically assign one employee per transaction, supported a finding of constructive possession. The court explained that constructive possession requires dominion and control, which Kurns exercised by being the required signatory for legal transfers. Third, the court rejected the Fifth Amendment claim, distinguishing this case from United States v. Mezas de Jesus. The district judge's suggestion that Kurns could testify to deny handling the weapons was not an impermissible adverse inference or a shift in the burden of proof, but rather an observation that Kurns could add to his evidence if he chose to take the stand. Finally, the panel declined to consider Kurns's Second Amendment challenge raised in a Rule 28(j) letter after briefing closed, as the argument was available at earlier stages of the proceedings.
The decision reaffirms that ATF agent testimony and documentary evidence like transfer forms are sufficient to prove firearm enhancements by a preponderance of the evidence, even without physical inspection of the specific weapon in every instance. It clarifies that constructive possession can be established through the control exercised by a felon over firearms they facilitate for sale, even if they did not physically handle every item. The ruling also reinforces the procedural bar against raising new legal arguments in Rule 28(j) letters after the appellate briefing process has concluded.
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