United States of America v. ADRIAN LAROY SEYMORE, AKA Adrian Leroy Seymore

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ADRIAN LAROY SEYMORE, AKA
Adrian Leroy Seymore,
Defendant-Appellant.
No. 17-30223
D.C. No. 2:16-cr-00211-TOR-1
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of Washington
Thomas O. Rice, Chief Judge, Presiding
Submitted December 7, 2018**
Seattle, Washington
Before: W. FLETCHER and BYBEE, Circuit Judges, and BURNS,*** District
Judge.
FILED
DEC 21 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* 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).
*** The Honorable Larry A. Burns, United States District Judge for the
Southern District of California, sitting by designation.

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Adrian Laroy Seymore pleaded guilty to one count of cyberstalking in
violation of 18 U.S.C. §§ 2261A(2)(A), 2261(b)(5). We have jurisdiction to
review Seymore’s sentence under 28 U.S.C. § 1291.
The presentence report (PSR) recommended a four-level increase to the base
offense level under United States Sentencing Guidelines Manual (U.S.S.G.)
§ 2A6.2(b)(1). The four-level increase is appropriate if the offense involved two or
more of the following aggravating factors: “(A) the violation of a court protection
order; (B) bodily injury; (C) strangling, suffocating, or attempting to strangle or
suffocate; (D) possession, or threatened use, of a dangerous weapon; or (E) a
pattern of activity involving stalking, threatening, harassing, or assaulting the same
victim.” U.S.S.G. § 2A6.2(b)(1). Seymore conceded factor (E). The district court
found that the offense also involved factors (A) and (D) and applied the
recommended four-level enhancement. Seymore argues that the district court erred
by basing its findings as to factors (A) and (D) solely on disputed portions of the
PSR, thereby relieving the government of its burden to prove by a preponderance
all facts necessary to enhance the offense level. See United States v. Burnett, 16
F.3d 358, 361 (9th Cir.1994).
“[A] district court may not rely exclusively on a PSR ‘[w]hen a defendant
contests the factual basis of a PSR.’” United States v. Snipe, 515 F.3d 947, 955
2

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(9th Cir. 2008) (quoting United States v. Ameline, 409 F.3d 1073, 1086 (9th Cir.
2005) (en banc)). The district court based its factor (D) finding on a paragraph in
the PSR that stated that Seymore had used a gasoline-filled bottle to set his
estranged wife’s car on fire. Seymore did not contest that statement’s truth.
Instead, he argued that “a glass filled with gasoline by itself does not . . . constitute
a dangerous weapon.” Thus, the factual basis of the district court’s dangerous
weapon finding was uncontested. Because “the district court may rely on
undisputed statements in the PSR at sentencing,” Ameline, 409 F.3d at 1085, the
district court did not err in relying solely on the PSR to reach its dangerous weapon
finding under factor (D) of U.S.S.G. § 2A6.2(b)(1).
Any error regarding the court’s finding of the factor (A) “protective order”
aggravator was harmless. Williams v. United States, 503 U.S. 193, 203 (1992).
AFFIRMED.
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