United States v. Love

FILED NOT FOR PUBLICATION DEC 5 2024 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 23-2791 Plaintiff - Appellee, D.C. No. 3:10-cr-02418-MMM-1 v. DONNY LOVE, Sr., AKA Donny MEMORANDUM* Durham, Sr., Defendant - Appellant. Appeal from the United States District Court for the Southern District of California M. Margaret McKeown, Circuit Judge, Presiding Submitted December 3, 2024** Pasadena, California Before: BYBEE, IKUTA, and BADE, Circuit Judges. Donny Love, Sr. appeals his 370-month sentence for convictions of multiple offenses related to his involvement in the May 2008 bombing of the federal * 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). courthouse in San Diego, California. We have jurisdiction under 28 U.S.C. § 1291. We affirm. To carry its burden of proving by a preponderance of the evidence, see United States v. Lucas, 101 F.4th 1158, 1163 (9th Cir. 2024) (en banc), that at least eight firearms were involved in the offense, the government presented coconspirator testimony, and non-coconspirator testimony. The district court did not err in finding that this evidence was sufficient to carry the government’s burden of proof. Love’s challenge to the reliability of the coconspirators’ testimony introduced by the government fails. Love’s reliance on Lilly v. Virginia, 527 U.S. 116, 131 (1999), and Crawford v. United States, 212 U.S. 183, 204 (1909), is misplaced, because unlike the criminal defendant in Lilly, Love had the opportunity to cross-examine the coconspirators, and as required by Crawford, the district court examined the coconspirators’ testimony with caution but ultimately concluded that their testimony was credible. Therefore, the district court did not abuse its discretion in applying a four- level enhancement under § 2K2.1(b)(1)(B) of the 2021 Guidelines. AFFIRMED. 2