United States v. Kurns

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 23-3779

D.C. No.

Plaintiff - Appellee,

6:23-cr-00001-

BMM-1

v.

BRANDON WADE KURNS,

OPINION

Defendant - Appellant.

Appeal from the United States District Court

for the District of Montana

Brian M. Morris, Chief District Judge, Presiding

Argued and Submitted October 21, 2024

Portland, Oregon

Filed February 20, 2025

Before: David F. Hamilton, * Lawrence VanDyke, and

Holly A. Thomas, Circuit Judges.

Opinion by Judge Hamilton

*

The Honorable David F. Hamilton, United States Circuit Judge for the

Court of Appeals, Seventh Circuit, sitting by designation.

2 USA V. KURNS

SUMMARY **

Criminal Law

The panel affirmed the district court’s judgment in a case

in which Brandon Wade Kurns pleaded guilty to being a

felon in possession of a firearm.

Kurns argued that the district court erred by starting with

a base offense level of 20 pursuant to U.S.S.G.

§ 2K2.1(a)(4)(B)(i)(I), which applies when the offense

involved a “semiautomatic firearm that is capable of

accepting a large capacity magazine.” Kurns asserted that

testimony about a magazine’s capacity based exclusively on

an expert’s evaluation of a magazine’s appearance in a

photograph did not provide sufficiently clear and convincing

proof. The panel explained that an ATF’s agent’s inability

to identify the precise make and model of the weapon

pictured in a surveillance photograph or to rule out entirely

the possibility that the pictured weapon was a non-lethal

replica or a .22 caliber is not dispositive. The panel held that

the evidence was sufficient to support a finding by a

preponderance of the evidence that the firearm that Kurns

possessed qualified for the § 2K2.1(a)(4)(B)(i)(I)

enhancement.

Kurns argued that the district court erred by applying an

enhancement under U.S.S.G. § 2K2.1(b)(1)(B) for

possessing eight or more firearms.

**

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

USA V. KURNS 3

Kurns first objected that, without corroborating video

evidence, the ATF transfer forms he signed without

authorizing the sales are insufficient to prove he possessed

the firearms in question. The panel held that given Kurns’

signatures on the transfer forms and the ATF agent’s

testimony about the standard business practices of the pawn

shop at which Kurns worked, the district court did not clearly

err in determining that a preponderance of the evidence

supported the finding that Kurns exercised the requisite

control over the firearms to establish, at a minimum,

constructive possession.

Kurns also objected that, in applying the

§ 2K2.1(b)(1)(B) enhancement, the district court violated his

Fifth Amendment privilege against self-incrimination by

drawing an adverse inference from his silence during

sentencing. Observing that there is no evidence that the

district court weighed Kurns’ silence in determining his

sentence, the panel held that no Fifth Amendment violation

occurred.

Because the arguments were available to him at every

previous stage of this case, the panel declined to consider

Kurns’ Second Amendment challenge to his conviction,

based on New York State & Pistol Ass’n v. Bruen, 597 U.S.

1 (2022), raised for the first time after completion of

appellate briefing.

4 USA V. KURNS

COUNSEL

Kelsey Sabol (argued) and Tim Tatarka, Assistant United

States Attorneys, Office of the United States Attorney,

United States Department of Justice, Billings, Montana;

Paulette L. Stewart and Kalah A. Paisley, Assistant United

States Attorneys; Jesse A. Laslovich, United States

Attorney; Office of the United States Attorney, United States

Department of Justice, Helena, Montana; for Plaintiff-

Appellee.

Samir F. Aarab (argued), Boland Aarab PLLP, Great Falls,

Montana, for Defendant-Appellant.

OPINION

HAMILTON, Circuit Judge:

In May 2021, defendant-appellant Brandon Wade Kurns

visited a pawn shop in Helena, Montana, to sell ammunition

for cash. He soon went to work for the pawn shop, Modern

Pawn & Consignment (“Modern Pawn”), where he sold

firearms and ammunition. The problem was that Kurns had

a recent felony conviction, so his possession of firearms and

ammunition was a federal crime under 18 U.S.C.

§ 922(g)(1).

In July 2021, after an investigation traced stolen

gunpowder to Modern Pawn, agents of the Bureau of

Alcohol, Tobacco, Firearms, and Explosives (“ATF”)

obtained a warrant to search the shop. Agents seized

evidence indicating that Kurns had possessed several

firearms. A federal grand jury indicted Kurns, and he

USA V. KURNS 5

pleaded guilty to one count of being a felon in possession of

a firearm in violation of 18 U.S.C. § 922(g)(1). Kurns was

sentenced to 36 months in prison, well below the advisory

range under the Sentencing Guidelines.

Kurns appeals his sentence, arguing that the district court

improperly applied two guideline enhancements: U.S.S.G.

§ 2K2.1(a)(4)(B)(i)(I) for possession of a semiautomatic

firearm with an extended magazine and § 2K2.1(b)(1)(B) for

possessing eight or more firearms. Next, he claims that the

district court violated the Fifth Amendment by drawing an

adverse inference from his silence during sentencing.

Finally, Kurns argues for the first time that we should

reconsider his sentence in light of the Supreme Court’s

decision in New York State Rifle & Pistol Ass’n v. Bruen,

597 U.S. 1 (2022). We affirm the district court’s sentence.

A preponderance of the evidence proved the underlying facts

required for each guideline enhancement, no Fifth

Amendment violation occurred, and Kurns’ argument under

Bruen is untimely at this late stage.

I. Factual and Procedural History

In April 2020, Kurns was convicted in a Montana state

court of felony criminal endangerment. That meant that any

future possession of firearms and ammunition would violate

18 U.S.C. § 922(g)(1). In May 2021, Kurns entered Modern

Pawn in Helena, Montana, and sold a box of ammunition. In

June 2021, while still on state-court probation, Kurns began

working at Modern Pawn. He inventoried and sold firearms

and ammunition to Modern Pawn customers. He also

performed background checks for firearm sales.

ATF began investigating Modern Pawn in the summer of

2021 after tracking stolen gunpowder to the shop. In July

2021, ATF agents obtained and executed a search warrant

6 USA V. KURNS

for Modern Pawn, seizing firearms and ammunition, as well

as video surveillance footage and firearm transfer

documents.

The evidence indicated that Kurns sold several firearms

during the summer of 2021. Video footage confirmed that

Kurns physically handled five firearms, including an AR-

style pistol. For four other transactions listed in the

presentence report (“PSR”), Kurns completed transfer

documents, but those transactions were not captured by the

video surveillance. In two other transactions, Kurns handled

pawn-shop customers’ sales of firearms to Modern Pawn.

Kurns pleaded guilty to one count of violating 18 U.S.C.

§ 922(g)(1) as a felon in possession of a firearm. The PSR

recommended a base offense level of 20 under U.S.S.G.

§ 2K2.1(a)(4)(B)(i)(I) because Kurns’ relevant conduct

included possessing a semiautomatic firearm capable of

accepting a large-capacity magazine. The PSR also

recommended a four-level enhancement under

§ 2K2.1(b)(1)(B) because Kurns possessed at least eight

firearms. Because some firearms were stolen, the PSR

recommended a two-level increase under § 2K2.1(b)(4)(A).

The PSR also recommended a three-level reduction from the

adjusted offense level of 26 for acceptance of responsibility,

resulting in a total offense level of 23. With a total offense

level of 23 and a criminal history category of V, the

Guidelines recommend a range of 84 to 105 months in

prison. Kurns objected to the enhancements for the number

of firearms and possessing a semiautomatic firearm capable

USA V. KURNS 7

of accepting a high-capacity magazine. He argued for a

guideline range of 37 to 46 months. 1

At the sentencing hearing, the government called Agent

Caleb Enk, the ATF case agent, to testify about surveillance

photographs, transaction documents, and his observations in

Modern Pawn. Agent Enk testified that the AR pistol

depicted in the surveillance footage of Kurns “appears to

have what looks like a general 30-round AR-style

magazine.” Agent Enk reached his conclusion based on the

physical characteristics of the magazine protruding from the

firearm and years of experience handling similar firearms.

Agent Enk testified that Modern Pawn regularly had one

employee completing firearms transactions. He also said

that he never saw replica guns or fake guns when he was in

Modern Pawn as a customer and that ATF did not seize any

replica or fake guns during its search of Modern Pawn.

Finally, Agent Enk testified that the pawn shop’s primary

source of income came from sales of functional firearms and

live ammunition.

During cross-examination, defense counsel began to ask

Agent Enk about Kurns’ alleged possession of each firearm

in the transactions not shown on surveillance footage.

Counsel was trying to develop support for his argument that,

without accompanying surveillance footage, Kurns’

completion of ATF transfer forms was insufficient to prove

his possession of the transferred firearms. Kurns’ counsel

1

Kurns sold a Glock Model 17 to a Modern Pawn customer on June 25,

2021. A United States Probation Officer contacted the customer about

the Glock. The customer told the officer that the Glock was

semiautomatic and had a 17-round magazine at the time of purchase.

Kurns objected to the Glock Model 17 triggering § 2K2.1(a)(4)(B)(i)(I).

The district court did not consider the Glock Model 17 in applying that

enhancement, so we do not discuss it further.

8 USA V. KURNS

asked Agent Enk if “the fact that [Kurns] signed that piece

of paper” necessarily meant “that he also touched the

firearm?” Agent Enk responded that “it is a very realistic

possibility, yes,” but that he did not “know for a fact that

[Kurns] … handled that gun.”

Judge Morris and defense counsel then engaged in the

following exchange:

The Court: Mr. Aarab, I’m assuming we’re

going to get the same answer for all of these

weapons.

Mr. Aarab: Well, Your Honor, I need to

develop a record, and I don’t mean to –

The Court: I guess, if you want to add to your

evidence, you can put Mr. Kurns on the stand

under oath and have him deny that he handled

those weapons if that’s the evidence.

Mr. Aarab: It is the government’s burden of

proof.

The Court: I know. I’m just saying if the

government – their burden is the testimony of

Agent Enk here.

Mr. Aarab: Yes.

The Court: You can finish your cross-

examination. But my point is if you are going

to try to – it’s a preponderance of the

evidence standard here in the sentencing

hearing. If you want to meet the

preponderance, you can put Mr. Kurns on the

stand and have him deny that he touched

those weapons under oath.

USA V. KURNS 9

Mr. Aarab: Well, Judge, I don’t think –

The Court: I will leave that up to you to

decide what route you want to go. Go ahead,

please.

Kurns then called his investigator, who testified that

“anywhere from five to six” employees worked at Modern

Pawn. Kurns’ counsel argued that even though Kurns was

listed as the transferor of the firearms on the ATF paperwork,

other employees may have been the only ones physically

handling the firearms during those transactions.

Based on the testimony of Agent Enk, his experience

about how Modern Pawn operated, video surveillance of the

store, and the ATF transfer forms, the district court found by

clear and convincing evidence that Kurns had possessed at

least eight firearms, including a semiautomatic AR pistol

with a high-capacity magazine. As a result, the district court

started from a base offense level of 20 under

§ 2K2.1(a)(4)(B)(i)(I) and added four levels for possession

of at least eight firearms under § 2K2.1(b)(1)(B). The

district court also added two levels under § 2K2.1(b)(4)(A)

because at least two of the firearms were stolen. The court

then reduced Kurns’ offense level by three points to reflect

his acceptance of responsibility and timely notification of

plea. Ultimately, the district court calculated the advisory

guideline range of 84 to 105 months in prison using a total

offense level of 23 and criminal history category V. The

court sentenced Kurns to 36 months in prison, varying

downward from the guideline range “to avoid disparate

sentences with the codefendants, who have been sentenced

so far, [and] to more accurately reflect the role that Kurns

played relative to the role of those codefendants.”

10 USA V. KURNS

II. Standard of Review and Analysis

In reviewing the district court’s application of the

Sentencing Guidelines, we review the district court’s

identification of the applicable provisions de novo, factual

findings for clear error, and application of those Guidelines

to the facts in the case for abuse of discretion. United States

v. Gasca-Ruiz, 852 F.3d 1167, 1170 (9th Cir. 2017) (en

banc). Factual findings at sentencing must be made by a

preponderance of the evidence. United States v. Lucas, 101

F.4th 1158, 1159 (9th Cir. 2024) (en banc) (“Lucas II”).

A. Semiautomatic Firearm Capable of Accepting a

Large Capacity Magazine

The district court did not err by starting with a base

offense level of 20. Video, documentary, and testimonial

evidence proved Kurns’ possession of a semiautomatic

firearm with a 30-round magazine by a preponderance of the

evidence sufficient to satisfy Lucas II. As a result, “the

district court’s findings of fact, and its application of those

findings of fact to the correct legal standard” were not

“illogical, implausible, or without support in inferences that

may be drawn from facts in the record.” United States v.

Hinkson, 585 F.3d 1247, 1251 (9th Cir. 2009).

The Guidelines provide for a base offense level of 20

when the offense involved a “semiautomatic firearm that is

capable of accepting a large capacity magazine.” U.S.S.G.

§ 2K2.1(a)(4)(B)(i)(I). The definition of a “semiautomatic

firearm that is capable of accepting a large capacity

magazine” requires that, at the time of the offense, the

firearm “has the ability to fire many rounds without

reloading” because a magazine capable of accepting more

than 15 rounds of ammunition is attached or in close

proximity to the firearm, with only a small carveout for

USA V. KURNS 11

semiautomatic firearms “with an attached tubular device

capable of operating only with .22 caliber rim fire

ammunition.” § 2K2.1 app. n.2.

Citing United States v. Lucas, 70 F.4th 1218 (9th Cir.

2023) (“Lucas I”), Kurns argues that the district court erred

by applying § 2K2.1(a)(4)(B)(i)(I) because testimony about

a magazine’s capacity based exclusively on an expert’s

evaluation of a magazine’s appearance in a photograph did

not provide sufficiently clear and convincing proof. Lucas I

had followed circuit precedent requiring proof of guideline

enhancements by clear and convincing evidence, but on

rehearing en banc, Lucas I was vacated and overruled on this

point in Lucas II. 101 F.4th at 1159. Lucas II brought this

circuit’s doctrine in line with that of other circuits, requiring

proof of guideline enhancements by a preponderance of the

evidence.

In Lucas I, the panel held that the government failed to

prove possession of a semiautomatic firearm by clear and

convincing evidence because “the government did not

physically produce or inspect the firearm or the magazine.”

70 F.4th at 1222. The Lucas I panel continued: “Without

physical evidence, the government largely relied on its

expert agent, who was, at most, equivocal. The agent

acknowledged that without physical inspection, he could not

conclusively state whether the magazine could in fact accept

more than 15 rounds or whether it was instead modified to

accept fewer. Nor did the agent explain the prevalence of

any type of magazine in the community; he only relayed his

personal experience with modified magazines.” Id.

Lucas II held that preponderance of the evidence is the

proper standard of proof for factual findings underlying

guideline enhancements. 101 F.4th at 1159. Contrary to

12 USA V. KURNS

Kurns’ argument and given the clarified standard of proof,

Agent Enk’s inability to identify the precise make and model

of the weapon pictured in the surveillance photograph or to

rule out entirely the possibility that the pictured weapon was

a non-lethal replica or a .22 caliber is not dispositive of

whether the government sufficiently proved possession.

The government’s expert, Agent Enk, testified that the

firearm Kurns possessed in the photo evidence “appears to

have what looks like a general 30-round AR-style

magazine.” He reached this opinion based on 18 years of

experience as an ATF agent and “on the physical

characteristics of the magazine protruding from the firearm

and its relative size to the grip.” Agent Enk also testified that

he did not come across any replica firearms at Modern Pawn

while undercover. Additionally, no replicas or .22 caliber

AR pistols were found during the ATF search of Modern

Pawn. The AR pistol was purchased in Montana, where the

standard 30-round magazines for that type of weapon are not

illegal.

The district court “determined by clear and convincing

evidence” that the government met its burden to demonstrate

that the AR pistol qualified for the sentencing enhancement

under § 2K2.1(a)(4)(B)(i)(I). This evidence was sufficient

to support the finding by a preponderance of the evidence.

See, e.g., United States v. Baldon, 956 F.3d 1115, 1127–28

(9th Cir. 2020) (preponderance of the evidence standard was

met for enhancement under § 2D1.1(b)(1) for possession of

a firearm in connection with a drug offense based on

evidence that the defendant leased a storage unit where the

firearm was discovered and had accompanying ammunition

at his residence); see also United States v. Pena, 91 F.4th

813, 818–19 (5th Cir. 2024) (upholding application of

§ 2K2.1(a)(4)(B) where video evidence of a firearm

USA V. KURNS 13

accepting a 16-round magazine met preponderance of the

evidence standard); United States v. Matthews, 3 F.4th 1286,

1288–91 (11th Cir. 2021) (upholding application of

§ 2K2.1(a)(4)(B) based on ATF agent’s testimony that the

standard magazine for the rifle in question was a 30-round

magazine despite no direct evidence that magazine was

inserted in firearm at time of possession).

B. Possession of at Least Eight Firearms.

The district court also found that Kurns possessed at least

eight firearms and added four levels to the base offense level.

Kurns objects that, without corroborating video evidence,

the ATF forms he signed authorizing the sales are

insufficient to prove he possessed the firearms in question.

This argument is not persuasive.

Kurns’ signatures on the ATF transfer forms, at least as

supplemented by Agent Enk’s testimony about his

experience as a customer at Modern Pawn, satisfy the

preponderance of the evidence standard under Lucas II.

Agent Enk testified that his “experience as an ATF agent,

knowing how the field works, and also [his] own purchase

of several firearms and watching the working of that occur”

supported an inference that Kurns handled the guns for

which he completed the ATF forms. Agent Enk also testified

that it was the regular practice at Modern Pawn that each

firearm transaction would be handled by one employee.

That testimony undercuts defense counsel’s suggestion that

perhaps Kurns completed the paperwork for some sales

without physically handling those firearms.

To counter Agent Enk’s testimony, Kurns called David

Jeseritz, a private investigator with law enforcement

experience. Jeseritz testified that, after reviewing 800 hours

of Modern Pawn’s surveillance footage, “on a couple

14 USA V. KURNS

occasions” more than one employee served a single

customer. Jeseritz testified that he could not “attest to

knowing if [Kurns] touched the firearm or not” based on

Kurns having completed the applicable transfer form.

While it is possible that a transfer form could have been

completed by an employee who did not also handle the

transferred weapon, absolute certainty is not required under

the preponderance of the evidence standard. Lucas II, 101

F.4th at 1164 (explaining that preponderance of the evidence

means “more likely than not”) (citing United States v. Kilby,

443 F.3d 1135, 1141 (9th Cir. 2006)). Given Kurns’

signatures on the transfer forms and Agent Enk’s testimony

about Modern Pawn’s standard business practices, the

district court did not clearly err by finding that Kurns more

likely than not possessed the firearms he transferred.

Further, even if we accepted Kurns’ speculation that

more than one employee might have been involved in the

firearm sales not covered on video, so that Kurns might have

completed the transfer paperwork without physically

possessing those firearms himself, he still would have

constructively possessed them. The felon in possession of a

firearm statute “prevents a felon not only from holding his

firearms himself but also from maintaining control over

those guns in the hands of others.” Henderson v. United

States, 575 U.S. 622, 626 (2015) (explaining principle of

constructive possession). The district court recognized

during the sentencing hearing that “possession is broadly

defined” and that it is “not simply that something is in your

hand, but you also have the ability to control it.”

Our analysis on constructive possession is guided by

United States v. Terry, 911 F.2d 272 (9th Cir. 1990). In Terry,

police officers found a shotgun in a bedroom closet the

USA V. KURNS 15

defendant shared with his wife. Id. at 274. The defendant

was charged with and convicted of being a felon in

possession of a firearm. His wife testified that the shotgun

belonged to her, and there was “no evidence that [the

defendant] had ever touched the gun.” Id. at 278. Although

we ordered a new trial for other reasons, the evidence in

Terry was sufficient for conviction. We concluded there that

the defendant’s “knowledge of the gun’s location and his

unhindered access to it” sufficed to establish constructive

possession, and we explained that, to “prove constructive

possession, the government must prove ‘a sufficient

connection between the defendant and the contraband to

support the inference that the defendant exercised dominion

and control over the substance.’” Id. (quoting United States

v. Disla, 805 F.2d 1340, 1350 (9th Cir. 1986)). “[M]erely

knowing the weapon is nearby” is not enough. Id. Instead,

“[t]he circumstances of each case must be examined to

determine if there is ‘such a nexus or relationship between

the defendant and the goods that it is reasonable to treat the

extent of the defendant’s dominion and control as if it were

actual possession.’” Id. (quoting United States v. Cousins,

427 F.2d 382, 384 (9th Cir. 1970)). The essential question is

whether “a party has knowledge of the weapon and both the

power and the intention to exercise dominion and control

over it.” Id.

Kurns’ execution of the transfer documents supports an

inference of constructive possession. Federal law requires

licensed gun dealers like Modern Pawn to complete ATF

transfer forms to sell firearms. 27 C.F.R. § 478.124(a).

Kurns’ completion of the transfer form was needed for each

sale. Without his signature, none of the firearms in question

could leave Modern Pawn legally. The form requires the

person carrying out the transfer to certify that “it is not

16 USA V. KURNS

unlawful for me to sell, deliver, transport, or otherwise

dispose of the firearm(s) listed on this form.” 2 Kurns

controlled the firearms because he was required to refuse the

sales if the sales were prohibited. The district court did not

clearly err in its determination that a preponderance of the

evidence supported the finding that Kurns exercised the

requisite control over the firearms to establish, at a

minimum, constructive possession. See Henderson, 575

U.S. at 626.

C. No Fifth Amendment Violation

Kurns’ second objection to the guideline enhancement

for possessing eight or more firearms was that the district

court violated his Fifth Amendment rights by drawing an

adverse inference from his silence at sentencing.

Potential violations of a defendant’s Fifth Amendment

privilege against self-incrimination are reviewed de novo.

United States v. Oriho, 969 F.3d 917, 923 (9th Cir. 2020).

“The Fifth Amendment right to remain silent contains an

implicit assurance ‘that silence will carry no penalty.’”

United States v. Lopez, 500 F.3d 840, 844 (9th Cir. 2007)

(quoting Doyle v. Ohio, 426 U.S. 610, 618 (1976)). A

defendant retains the privilege against self-incrimination at

a sentencing hearing, and a sentencing court may not draw

an adverse inference from a defendant’s silence. Mitchell v.

United States, 526 U.S. 314, 325–29 (1999).

Kurns argues that the district court violated his Fifth

Amendment privilege against self-incrimination and

impermissibly relieved the government of its burden of proof

by suggesting that Kurns could testify that he did not

2

U.S. Department of Justice Bureau of Alcohol, Tobacco, Firearms, and

Explosives Firearms Transaction Record Form 4473 at 3.

USA V. KURNS 17

physically possess the firearms covered by the transfer forms

for sales without accompanying video evidence. Kurns

argues that the district court drew an impermissible, adverse

inference comparable to that drawn in United States v. Mezas

de Jesus, 217 F.3d 638 (9th Cir. 2000). But there are

important differences between that case and this one.

In Mezas de Jesus, the defendant was convicted of

unlawful possession of a firearm in violation of 18 U.S.C.

§ 922(g)(5). At sentencing, the government argued that

Mezas de Jesus committed the offense during an uncharged

kidnaping. 217 F.3d at 639. The district court applied the

preponderance of the evidence standard and found that

Mezas de Jesus had indeed possessed a firearm in connection

with a kidnaping. The court sentenced him more harshly

under the kidnaping guideline instead of the guideline for

possession of a firearm. Id. at 639–40. Mezas de Jesus

objected to the application of the kidnaping guideline

because “(1) the kidnaping was not supported by a

preponderance of the evidence, and (2) he had not had an

opportunity to cross-examine the witnesses to the alleged

kidnaping.” Id. at 641. Mezas de Jesus demanded an

evidentiary hearing. Id.

We found that “the district court implicitly drew an

adverse inference from Mezas de Jesus’s silence at

sentencing.” Id. at 644. We focused on the district court’s

statement: “So if the court is presented with a prima facie

case by the government that a kidnaping occurred, wouldn’t

I have to see something from you like, for instance, a

statement under oath from your client that it didn’t happen,

in order to require an evidentiary hearing?” Id. at 644

(emphasis added). We concluded that “the district court did

draw an adverse inference from Mezas de Jesus’s silence and

that this error was a factor in its misapplication of the

18 USA V. KURNS

preponderance standard.” Id. at 645. “By focusing on the

defendant’s silence at sentencing and quantitatively

weighing it against the government’s ‘untested’ evidence,

the district court effectively shifted the burden of proof at

sentencing to the defendant. In so doing, the district court

erred.” Id. We remanded for resentencing.

The error in Mezas de Jesus did not occur here. Unlike

in Mezas de Jesus, the district court never implied that

Kurns’ testimony was necessary to rebut arguments

advanced by the government. Here the district court

suggested that Kurns could “add to [his] evidence” by

“deny[ing] that he touched those weapons under oath.” But

contrary to Kurns’ argument that the district court viewed

Kurns’ decision not to testify as an “absence of evidence,”

this exchange showed only that Kurns could add to his

already existing evidence if he elected to testify. Thus the

district court was not viewing this exchange as a situation

where the government had made a prima facie case and

would require Kurns to take the stand to prevent the

government from meeting the preponderance standard.

In support of his claim that the district court drew an

adverse inference from his silence, Kurns points to only one

statement by the district judge: “So we don’t have statements

from any witnesses who did not testify.” This statement does

not show that the court drew a negative inference from

silence. See United States v. Robinson, 485 U.S. 25, 32

(1988) (finding no Fifth Amendment violation where

“prosecutorial comment did not treat the defendant’s silence

as substantive evidence of guilt, but instead referred to the

possibility of testifying as one of several opportunities which

the defendant was afforded”).

USA V. KURNS 19

The district judge here grappled explicitly with Kurns’

arguments and evidence. The court found that the business

records, the screenshots from the video of Modern Pawn,

and Agent Enk’s testimony about his experience about how

Modern Pawn operated demonstrated “that the government

has met its burden of showing that Mr. Kurns is responsible

[for the firearms].” The judge “read and considered all of

the information provided to [the court], including the

presentence report, the statements of the hearing by the

witnesses who testified under oath.”

We recognize, though, that even in a criminal sentencing

there is good reason to be cautious about judicial comments

on a refusal to testify. The Supreme Court has noted that

“comment on the refusal to testify is a remnant of the

‘inquisitorial system of criminal justice,’ … which the Fifth

Amendment outlaws.” Griffin v. California, 380 U.S. 609,

614 (1965) (quoting Murphy v. Waterfront Comm’n of New

York Harbor, 378 U.S. 52, 55 (1964)). Yet, there is no

evidence that the district court weighed Kurns’ silence in

determining his sentence. Accordingly, no Fifth Amendment

violation occurred. See United States v. Johnston, 789 F.3d

934, 943 (9th Cir. 2015) (finding no violation in the “context

of the district court’s careful review of the record and

extensive explanation of the sentence”).

D. No Reconsideration Under Bruen

On May 10, 2024, Kurns submitted a letter of

supplemental authority under Federal Rule of Appellate

Procedure 28(j). In this letter, Kurns asserted that two

intervening authorities, New York State & Pistol Ass’n v.

Bruen, 597 U.S. 1 (2022), and United States v. Duarte, 101

F.4th 657 (9th Cir. 2024), reh’g en banc granted, opinion

20 USA V. KURNS

vacated, 108 F.4th 786 (9th Cir. 2024), warrant

reconsideration of his conviction. We disagree.

The arguments Kurns has raised after completion of

appellate briefing were available to him at every previous

stage of this case. “Arguments raised for the first time in

28(j) letters are ordinarily considered waived,” especially

arguments pertaining to “complex issue[s].” Pakootas v.

Teck Cominco Metals, LTD., 830 F.3d 975, 986 n.12 (9th Cir.

2016). A defense under Bruen was available to Kurns even

before he entered his plea, let alone during sentencing and

before submitting his briefs to this court. We decline to

consider this new challenge.

CONCLUSION

The judgment of the district court is AFFIRMED.