United States of America v. James Edward Dempster

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JAMES EDWARD DEMPSTER,
Defendant-Appellant.
No. 23-30008
D.C. No. 1:22-cr-00003-SPW-1
MEMORANDUM*
Appeal from the United States District Court
for District of Montana
Susan P. Watters, District Judge, Presiding
Submitted October 16, 2023**
Portland, Oregon
Before: KOH and SUNG, Circuit Judges, and EZRA,*** District Judge.
* 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 David A. Ezra, United States District Judge for the
District of Hawaii, sitting by designation.
FILED
OCT 26 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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2
James Edward Dempster (“Defendant”) appeals the district court’s decision
not to apply a downward departure to his sentence for a conviction under
§ 922(g)(1). We have jurisdiction to review under 28 U.S.C. § 1291. We affirm.
On January 20, 2022, a grand jury indicted Defendant for violating
§ 922(g)(1), which prohibits individuals previously convicted of a crime
punishable by imprisonment for a term exceeding one year from possessing
firearms.1 Defendant pled guilty without the benefit of a plea agreement and did
not sign an appeal waiver. At his sentencing hearing on January 11, 2023,
Defendant agreed that his base offense level was 20 and that the resulting guideline
range was 46 to 58 months imprisonment, but argued that his conduct mirrored a
scenario envisioned by U.S. Sentencing Guidelines (“U.S.S.G.”) § 2K2.1(b)(2)
where a “person [who] possessed all ammunition and firearms solely for lawful
sporting purposes” receives an offense level reduced to 6. Although Defendant
acknowledged that he was ineligible for the “sporting exception” based on his
previous drug offense, 2 Defendant contended that the fact that his conduct mirrors
1 Defendant was first charged with possession with intent to distribute
methamphetamine on August 27, 2014. His § 922(g)(1) violation occurred on
November 23, 2021, when he was pulled over for traffic violations on his way
home from a hunting trip and officers discovered three firearms in his vehicle.
2 U.S.S.G. § 2K2.1(b)(2) reduces a defendant’s offense level down to six if the
court finds that the defendant possessed ammunition and firearms “solely for
lawful sporting purposes or collection.” However, the provision is clear that this
reduction is inapplicable to defendants subject to “subsection (a)(1), (a)(2), (a)(3),

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3
that contemplated in the sporting exception demonstrates his diminished
culpability and entitles him to a downward departure.
In response to Defendant’s argument, the district court remarked that
Defendant was “well aware of the fact that [he] can’t possess firearms,” as he has
been on supervised release since 2016 and “it’s pretty clear that the – not only the
Sentencing Commission but Congress have concluded that people who have
criminal histories such as yours are not – don’t get breaks when it comes to defying
the conditions of your supervised release or the federal law in possessing
firearms.” The district court found no excuse for Defendant’s actions, noting that
it “looks to the Court . . . that you do what you want to do . . . and you’re not
willing to comply with the conditions of supervision, not to mention state and
federal law.” Finally, the district court discussed Defendant’s criminal history
dating back to 2003 and raised a concern that “I don’t know exactly what it is
that’s going to get your attention for you to understand that you have to respect the
law and that those laws do apply to you.” For these reasons, the district court
concluded that a sentence of 46 months imprisonment, the bottom of his guideline
range, was appropriate pursuant to 18 U.S.C. § 3553(a).
(a)(4), or (a)(5).” Defendant concedes that his prior conviction triggered the
application of (a)(4)(A), making him ineligible for the exemption.

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4
Defendant appeals his 46-month sentence, arguing that the district court
abused its discretion in failing to apply a downward departure. When a judge
decides to impose a sentence within the guideline range, she need not give a
“lengthy explanation.” Rita v. United States, 551 U.S. 338, 356 (2007). The
district court adequately considered Defendant’s legal argument as well as the
particular circumstances of his hunting trip and criminal history. The sporting
exception in §2K2.1(b)(1) expressly excludes individuals with criminal histories
such as Defendant’s, and the district court’s well-reasoned decision took into
account each factor relevant to imposing a sentence “sufficient, but not greater than
necessary.” 18 U.S.C. § 3553(a). Accordingly, the district court did not abuse its
discretion.
AFFIRMED.

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