United States of America v. Allen Earl Witherall

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ALLEN EARL WITHERALL,
Defendant-Appellant.
No. 17-30193
D.C. No. 1:16-cr-00112-SPW
MEMORANDUM*
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.
FILED
AUG 23 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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2 17-30193
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.

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