NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS SEP 16 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 23-2576 D.C. No. Plaintiff - Appellee, 9:23-cr-00012-DLC-1 v. MEMORANDUM* AUSTEN CHRISTOPHER LEE NEWTON,

Defendant - Appellant.

Appeal from the United States District Court for the District of Montana Dana L. Christensen, District Judge, Presiding

Submitted September 11, 2024** Seattle, Washington

Before: W. FLETCHER and SUNG, Circuit Judges, and RAKOFF, District Judge.***

Austen Newton appeals the sentence imposed following his guilty

* 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 Jed S. Rakoff, United States District Judge for the Southern District of New York, sitting by designation. plea to one count of prohibited person in possession of a firearm in violation of 18

U.S.C. § 922(g)(1). We review de novo the district court’s legal interpretation of

the Sentencing Guidelines. United States v. Scheu, 83 F.4th 1124, 1126 (9th Cir.

2023). We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

Newton argues that Guideline enhancement § 2K2.1(b)(4) requires proof of

scienter. We agree with the district court that this argument is foreclosed by

longstanding circuit precedent. See United States v. Goodell, 990 F.2d 497, 498-99

(9th Cir. 1993) (analyzing the text, purpose, and history of § 2K2.1(b)(4) and

holding that it does not require scienter); United States v. Prien-Pinto, 917 F.3d 1155, 1161 (9th Cir. 2019) (reaffirming Goodell).

Newton argues that Goodell and Prien-Pinto are abrogated by Kisor v.

Wilkie, 588 U.S. 558 (2019), an intervening decision of higher authority. See

Miller v. Gammie, 335 F.3d 889 (9th Cir. 2003) (en banc). In Kisor, the Supreme

Court held that courts may not defer to an agency’s interpretation of a regulation

unless the regulation is genuinely ambiguous. Kisor, 588 U.S. at 575. Kisor applies

to the deference afforded to the Sentencing Commission’s commentary on the

Guidelines. United States v. Castillo, 69 F.4th 648, 655 (9th Cir. 2023). But the

text of § 2K2.1(b)(4) is unambiguous, and our interpretation has never been based

on deference to the Sentencing Commission’s commentary. See Goodell, 990 F.2d at 501 (“The language of the guideline enhancement is unambiguous[.]”); Prien-

2 23-2576 Pinto, 917 F.3d at 1158 (“Through traditional techniques of construction, we had

been reading this enhancement to apply without a mens rea for fourteen years

before the Sentencing Commission began directing us to do so. Application Note

8(B) simply serves as confirmation that Goodell’s reading has always been the

correct one.”).

AFFIRMED.

3 23-2576