FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                No. 22-50064

             Plaintiff-Appellee,           D.C. No.
                                        8:21-cr-00017-
 v.                                         JVS-1

FRANCISCO LUCAS, Jr.,

OPINION

             Defendant-Appellant.

      Appeal from the United States District Court
         for the Central District of California
       James V. Selna, District Judge, Presiding

       Argued and Submitted February 15, 2023
                Pasadena, California

                  Filed June 14, 2023

  Before: J. Clifford Wallace, Andrew D. Hurwitz, and
             Bridget S. Bade, Circuit Judges.

              Opinion by Judge Wallace;
              Dissent by Judge Hurwitz
2                     UNITED STATES V. LUCAS


                          SUMMARY*


                         Criminal Law

    In a case in which Francisco Lucas, Jr., pleaded guilty to
unlawful possession of a firearm in violation of 

(g)(1), the panel reversed the district court’s sentencing
order, which imposed a heightened base offense level under
U.S.S.G. § 2K2.1(a)(4)(B); and remanded for resentencing
on an open record.
   Section 2K2.1(a)(4)(B) applies if the offense involved a
“semiautomatic firearm that is capable of accepting a large
capacity magazine.” Application Note 2 to § 2K2.1 defines
such a firearm as one:

        that has the ability to fire many rounds
        without reloading because at the time of the
        offense (A) the firearm had attached to it a
        magazine or similar device that could accept
        more than 15 rounds of ammunition; or (B) a
        magazine or similar device that could accept
        more than 15 rounds of ammunition was in
        close proximity to the firearm.

   Because the parties assumed that Application Note 2
applies, the panel deemed waived any arguments
concerning, and expressed no opinion on, whether
Application Note 2 is inconsistent with the Guideline or
whether § 2K2.1(a)(4)(B) is ambiguous so as to defeat resort

*
 This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
3                  UNITED STATES V. LUCAS


to Application Note 2. The panel likewise expressed no
opinion on whether the district court should address these
issues on remand. Because these issues were waived, the
panel applied Application Note 2 for the purposes of this
appeal.
    Lucas contended that the district court committed error
in finding, by clear and convincing evidence, that his
magazine could accept more than 15 rounds of ammunition
at the time of the offense. The panel wrote that it is bound
by this court’s precedent that where the use of a sentencing
enhancement has an extremely disproportionate impact on
the sentence, due process may require that facts underlying
such an enhancement be proven by clear and convincing
evidence. Based on the government’s concession that if the
panel does not hold that precedent to be clearly
irreconcilable with intervening Supreme Court authority, the
panel should apply the clear-and-convincing-evidence
standard here, the panel assumed without deciding that
application of § 2K2.1(a)(4)(B) has an extremely
disproportionate impact on Lucas’s sentence and the
government must prove the underlying facts by clear and
convincing evidence.
    The panel held that the district court clearly erred in
finding, by clear and convincing evidence, that Lucas’s
magazine could accept more than 15 rounds, where the
government did not physically produce or inspect the firearm
or the magazine, and, without physical evidence, the
government largely relied on its expert agent, who was, at
most, equivocal.
   The district court held that even if Lucas’s magazine
could only accept fewer than 15 rounds because of a
modification, such a magazine still satisfies Application
4                  UNITED STATES V. LUCAS


Note 2 because the modification can potentially be
removed. The panel explained that this conclusion is at odds
with the plain text of Application Note 2, which is backward-
looking and concerns the capabilities of the firearm and the
magazine “at the time of the offense.” As the government
provided scant evidence that any potential modification to
Lucas’s magazine could have been removed during his
illegal possession and when it was in close proximity to the
firearm, the panel concluded that the district court erred in
concluding that the Guideline was met.
    Judge Hurwitz dissented. He wrote that if the issue were
simply whether Lucas’s firearm met the definition in
Application Note 2 to § 2K2.1(a)(4)(B), he would join the
majority opinion. But the issue is instead whether the
Guideline itself applies. He wrote that the court must
disregard the interpretive gloss set forth in the Guideline’s
commentary absent ambiguity in the Guideline, and §
2K2.1(a)(4)(B) is not in the least ambiguous. He wrote that
the Guideline focuses only the capability of the firearm to
accept a large capacity magazine, not the ability of the
defendant to promptly insert one or immediately discharge
ammunition from one. Noting that Lucas never contested
the firearm’s capability to accept the requisite magazine, and
his own expert confirmed that the pistol had this capability,
Judge Hurwitz wrote that the Guideline therefore allows the
enhancement. Concerning waiver, he wrote that the
government has always asserted that the Guideline applies.
5                  UNITED STATES V. LUCAS


                        COUNSEL

Sonam A. H. Henderson (argued), Deputy Federal Public
Defender; Cuauhtemoc Ortega, Federal Public Defender;
Federal Public Defender’s Office; Los Angeles, California;
for Defendant-Appellant.
Bradley E. Marrett (argued), Assistant United States
Attorney; Bram M. Alden, Assistant United States Attorney,
Criminal Appeals Section Chief; Stephanie S. Christensen,
Acting United States Attorney; Office of the United States
Attorney; Santa Ana, California; for Plaintiff-Appellee.

OPINION

WALLACE, Circuit Judge:

    Francisco Lucas, Jr., pleaded guilty to unlawful
possession of a firearm in violation of 

(g)(1).
Lucas now appeals from the district court’s sentencing order,
which imposed a heightened base offense level under United
States Sentencing Guidelines § 2K2.1(a)(4)(B). We have
jurisdiction over this timely appeal under 

.
We review the district court’s selection and interpretation of
the Sentencing Guidelines de novo and the district court’s
factual findings for clear error. See United States v. Gasca-
Ruiz, 

 (9th Cir. 2017) (en banc). We
reverse and remand.
6                      UNITED STATES V. LUCAS


                                    I.
    In December 2020, while on state probation, Lucas was
searched by local police, who discovered photographs and
videos on Lucas’s cellphone depicting him with a firearm
and magazine. A grand jury subsequently returned an
indictment, charging Lucas with one count in violation of 

(g)(1) for illegal possession of a firearm as a
convicted felon. Police never physically recovered the
firearm or magazine. Lucas later pleaded guilty.
    During sentencing, the parties disputed whether Lucas’s
base offense level should be increased under U.S.S.G.
§ 2K2.1(a)(4)(B), which applies if the offense involved a
“semiautomatic firearm that is capable of accepting a large
capacity magazine.” The government filed an expert report
from a federal agent who reviewed the photographs and
video of Lucas’s contraband. The agent stated that Lucas’s
firearm looked like a Glock model 22, .40 caliber pistol and
that Lucas’s magazine looked like an extended-length
magazine capable of accepting more than 15 rounds of
ammunition. The agent acknowledged the commercial
availability of extended magazines that have been modified
with “blockers” to accept fewer than 15 rounds.1
Nonetheless, the agent observed that he had never personally
encountered such a modified magazine in California. The
agent concluded that without a physical inspection of the
firearm and magazine, he could not conclusively determine
whether Lucas’s magazine was equipped with such a blocker


1
  Some states, such as California, currently restrict magazine capacity by
law, see 

, and therefore such modified
magazines are sometimes referred to as “California compliant”
magazines.
7                  UNITED STATES V. LUCAS


or could have accepted more than 15 rounds at the time the
photographs were taken.
    The district court found that the government met its
evidentiary burden to apply U.S.S.G. § 2K2.1(a)(4)(B). The
district court held that even if Lucas had possessed a
modified large capacity magazine, it was susceptible to easy
conversion     to    remove     the    ammunition-limiting
modification.     Application of section 2K2.1(a)(4)(B)
increased Lucas’s advisory sentencing range from 33–41
months to 63–78 months. The district court ultimately
sentenced Lucas to 57 months in prison.
                            II.
    We requested oral argument to include whether
Application Note 2 to U.S.S.G. § 2K2.1 unduly narrows
U.S.S.G. § 2K2.1(a)(4)(B).          Section 2K2.1(a)(4)(B)
provides for a heightened base offense level if the criminal
conduct involved a “semiautomatic firearm that is capable of
accepting a large capacity magazine.” Application Note 2
defines such a firearm as one:

       that has the ability to fire many rounds
       without reloading because at the time of the
       offense (A) the firearm had attached to it a
       magazine or similar device that could accept
       more than 15 rounds of ammunition; or (B) a
       magazine or similar device that could accept
       more than 15 rounds of ammunition was in
       close proximity to the firearm.

U.S.S.G. § 2K2.1 app. n.2. No party argued in its briefs or
before the district court that Application Note 2 is
inconsistent with U.S.S.G. § 2K2.1(a)(4)(B) or that U.S.S.G.
8                  UNITED STATES V. LUCAS


§ 2K2.1(a)(4)(B) is unambiguous so as to defeat resort to
Application Note 2. Rather, the parties assumed that
Application Note 2 applies. Therefore, we hold that any
argument otherwise has been waived on appeal. See
Humane Soc. of U.S. v. Locke, 

, 1054 n.8 (9th
Cir. 2010); cf. Lubow v. U.S. Dep’t of State, 

 (D.C. Cir. 2015) (holding that the court must “adhere to
the parties’ framing” and that parties “forfeit an argument
against deference by failing to raise it”). We express no
opinion on whether Application Note 2 is inconsistent with
the Guideline or whether U.S.S.G. § 2K2.1(a)(4)(B) is
ambiguous, nor do we express any opinion on whether the
district court should address these issues on remand.
Because these issues were waived, for the purposes of this
appeal we apply Application Note 2.
                             III.
    Lucas contends that the district court committed error in
finding, by clear and convincing evidence, that his magazine
could accept more than 15 rounds of ammunition at the time
of the offense. We start with the government’s burden of
proof to establish this fact. The government usually must
prove a fact underlying a sentencing enhancement by a
preponderance of the evidence. See United States v. Lonich,

 (9th Cir. 2022). However, our circuit has
held that where the use of a sentencing enhancement has an
“extremely disproportionate impact on the sentence,” due
process may require that facts underlying such an
enhancement be proven by clear and convincing evidence.
United States v. Jordan, 

 (9th Cir. 2001);
see also Lonich, 

. This rule was crafted before
the Supreme Court altered the sentencing landscape in
United States v. Booker, 

 (2005), and this court
stands alone in continuing to apply such a rule after Booker.
9                   UNITED STATES V. LUCAS


See United States v. Pacheco, 

 (1st Cir.
2007); United States v. Jones, 

 (2d Cir.
2008); United States v. Fisher, 

 (3d Cir.
2007); United States v. Grubbs, 

, 802 & n.5 (4th
Cir. 2009); United States v. Brika, 

 (6th
Cir. 2007); United States v. Reuter, 

 (7th
Cir. 2006); United States v. Villareal-Amarillas, 

, 897–98 (8th Cir. 2009); United States v. Robertson, 

, 1171–72 (10th Cir. 2020); United States v.
Siegelman, 

, 1332 & n.12 (11th Cir. 2015); cf.
United States v. Simpson, 

 (5th Cir. 2014)
(“Though we have continued to leave this door open, we
have never actually required a heightened burden for factual
determinations at sentencing.”).
    The government asks us to hold that our circuit case law
is clearly irreconcilable with subsequent Supreme Court
precedent and urges us to adopt the rule followed in our sister
circuits. However, our court has continuously applied this
rule post-Booker, see, e.g., Lonich, 

, and the
government does not point to any intervening higher
authority. As a three-judge panel, we are bound by our
precedent. See Miller v. Gammie, 

 (9th
Cir. 2003) (holding that a three-judge panel is bound by
circuit precedent unless “the reasoning or theory of our prior
circuit authority is clearly irreconcilable with the reasoning
or theory of intervening higher authority”).
    The government concedes that if we do not hold our
precedent as clearly irreconcilable with intervening Supreme
Court authority, we should apply the clear-and-convincing-
evidence standard here. Based on this concession, we
assume without deciding that application of U.S.S.G.
§ 2K2.1(a)(4)(B) has an extremely disproportionate impact
10                  UNITED STATES V. LUCAS


on Lucas’s sentence and that the government must prove the
underlying facts by clear and convincing evidence.
                              IV.
    We emphasize that the following facts are undisputed:
the firearm was physically capable of accepting a large
capacity magazine, the magazine was in close proximity to
Lucas’s firearm, and the firearm itself was capable of firing
many rounds without reloading. The only issue, therefore,
is whether, at the time of the offense, Lucas’s magazine
“could accept more than 15 rounds of ammunition” under
Application Note 2.
    Based on the unique circumstances which are binding on
us, we hold that the district court clearly erred in finding, by
clear and convincing evidence, that Lucas’s magazine could
accept more than 15 rounds. To find a fact by clear and
convincing evidence, a district judge must “have an abiding
conviction that the truth of the factual contentions at issue is
highly probable.” Lonich, 

 (citation and
internal quotation marks omitted). The government did not
physically produce or inspect the firearm or the magazine.
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. On this
record, the district court’s finding that the government
established the capacity of Lucas’s magazine by clear and
convincing evidence was clear error. See United States v.
Graf, 

 (9th Cir. 2010) (“A finding is
11                  UNITED STATES V. LUCAS


clearly erroneous if it is illogical, implausible, or without
support in the record.”).
   The district court held that even if Lucas’s magazine
could only accept fewer than 15 rounds because of a
modification, such a magazine still satisfies Application
Note 2 because the modification can potentially be removed.
This conclusion is at odds with the plain text of Application
Note 2.
     As discussed above, Application Note 2 provides that a
“semiautomatic firearm that is capable of accepting a large
capacity magazine” is a firearm that “at the time of the
offense” had attached to it, or was in close proximity to, “a
magazine or similar device that could accept more than 15
rounds of ammunition.” U.S.S.G. § 2K2.1 app. n.2. Key
here is the phrase “at the time of the offense.” By its plain
terms, this modifier affects the subsections that follow it,
which are in the past tense. See United States v. Evans, 

 (11th Cir. 2020) (holding that “[t]he phrase
‘at the time of the offense’ modifies the subparts that follow
it”); United States v. Davis, 

 (8th Cir.
2012) (observing that the plain language of Application Note
2 “strongly suggests” that the phrase “at the time of the
offense” modifies the conditions that immediately follow it).
In other words, Application Note 2 is backward-looking and
concerns the capabilities of the firearm and the magazine at
the time of the offense—here, the time of the illegal
possession. Under this interpretation, the government has
the burden to prove, in relevant part, that Lucas possessed a
firearm that, “at the time of the offense” and not at some time
after the period of illegal possession, was in sufficient
proximity to a magazine “that could accept more than 15
rounds of ammunition.” U.S.S.G. § 2K2.1 app. n.2.
Therefore, the ease with which one could remove a
12                     UNITED STATES V. LUCAS


modification to a magazine after the offense is irrelevant to
the Guideline. As the government provided scant evidence
that any potential modification to Lucas’s magazine could
have been removed during his illegal possession and when
it was in close proximity to the firearm, the district court
erred in concluding that the Guideline was met.2
    For the reasons above, the district court improperly
increased Lucas’s base offense level under U.S.S.G.
§ 2K2.1(a)(4)(B). We reverse and remand for resentencing
on an open record. At resentencing, the district court should
address how much, if any, weight it assigns to the jail phone
call that the government proffered at sentencing.
     REVERSED AND REMANDED.




2
 In other circumstances, however, if the government presented sufficient
evidence to establish that a blocker or other modification that limited a
magazine to 15 or fewer rounds could be easily and quickly removed
during the time of the offense, the ease of removing that modification
could be relevant to the Guidelines calculation.
13                  UNITED STATES V. LUCAS


HURWITZ, Circuit Judge, dissenting:

     If the issue for decision were simply whether Lucas’s
firearm met the definition in Application Note 2 to U.S.S.G.
§ 2K2.1(a)(4)(B), I would join the majority opinion. But the
issue is instead whether the Guideline itself applies. An
Application Note interpreting a Guideline is not
authoritative if it “is inconsistent with, or a plainly erroneous
reading of, that guideline.” Stinson v. United States, 

 (1993). “[I]f the Guideline and Application Note
are inconsistent, the Guideline prevails.” United States v.
Prien-Pinto, 

 (9th Cir. 2019) (citing
Stinson, 

). This is so both when a Note
broadens the scope of a Guideline, see United States v.
Kirilyuk, 

, 1137–39 (9th Cir. 2022), and when
the Note narrows it, see United States v. Lambert, 

 (9th Cir. 2007). And, we must “disregard the
interpretive gloss set forth in the guideline’s commentary”
absent ambiguity in the Guideline. United States v. Castillo,
--- F.4th ---, No. 21-50054, 

, at *2 (9th Cir.
May 31, 2023).
     The relevant Guideline is not in the least ambiguous. It
applies if the offense involved a “semiautomatic firearm that
is capable of accepting a large capacity magazine.” U.S.S.G.
§ 2K2.1(a)(4)(B). The Application Note defines this phrase
restrictively, as requiring that “(A) the firearm had attached
to it a magazine or similar device that could accept more than
15 rounds of ammunition; or (B) a magazine or similar
device that could accept more than 15 rounds of ammunition
was in close proximity to the firearm.” U.S.S.G. § 2K2.1
app. n.2. However, a firearm can plainly be “capable of
accepting a large capacity magazine” even if that magazine
is not attached to or in close proximity to the firearm at the
14                 UNITED STATES V. LUCAS


time of the offense. The Guideline focuses only on the
capability of the firearm to accept a large capacity magazine,
not the ability of the defendant to promptly insert one or
immediately discharge ammunition from one. See United
States v. Flores, 

, 219–20 (5th Cir. 2018)
(Haynes, J., concurring).
    Lucas only argued that a magazine (not offered in
evidence) shown next to his Glock semiautomatic pistol in
certain photographs could not, “at the time of the offense,
accept more than 15 rounds of ammunitions.” He has never
contested the firearm’s capability to accept the requisite
magazine. Indeed, his own expert confirmed that the pistol
had this capability. The Guideline therefore allows the
sentence enhancement.
    The majority contends that the government waived the
argument that the Application Note’s restrictive language
does not control because it never so argued below or on
appeal, instead contending that an expert’s testimony
sufficiently established the capacity of the depicted
magazine.     But, waiver only occurs when a party
“considered the controlling law . . . and, in spite of being
aware of the applicable law, relinquished his right.” United
States v. Depue, 

, 1232–33 (9th Cir. 2019) (en
banc) (cleaned up). Rather, the government failed to make
a timely argument based on the difference between the
Guideline and the Application Note; it has always asserted
that the Guideline applies.
    At most, the government’s failure to make this this
argument below or in its response brief constituted
forfeiture. See 

 But, “[i]t is claims that are deemed
waived or forfeited, not arguments.” Kirilyuk, 

 (cleaned up). In any event, we may overlook
15                 UNITED STATES V. LUCAS


forfeiture, Depue, 

, and I would do so here.
The parties were invited to address this issue at argument,
and both did so at length. Neither sought to file a
supplemental brief on the topic.          And, no factual
development of the record is needed. Because the
Guideline—not the Application Note—clearly applies, I
would affirm the district court’s judgment.