United States v. Wayde Kurt

FILED

NOT FOR PUBLICATION JUL 02 2013

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 12-30182

Plaintiff - Appellee, D.C. No. 2:10-cr-00114-WFN-

v.

MEMORANDUM*

WAYDE LYNN KURT,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of Washington Wm. Fremming Nielsen, Senior District Judge, Presiding

Argued and Submitted April 11, 2013 Seattle, Washington

Before: TASHIMA and CALLAHAN, Circuit Judges, and COLLINS, District Judge.**

Appellant Wayde Lynn Kurt appeals his conviction for possession of

firearms after a prior felony conviction in violation of 18 U.S.C. §§ 922(g)(1),

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The Honorable Raner C. Collins, District Judge for the U.S. District Court for the District of Arizona, sitting by designation.

1 924. He argues that the district court erred by refusing to give entrapment

instructions, refusing to admit certain photographs and book excerpts,…

MEMORANDUM **

Appellant Wayde Lynn Kurt appeals his conviction for possession of firearms after a prior felony conviction in violation of 18 U.S.C. §§ 922 (g)(1), 924. He argues that the district court erred by refusing to give entrapment instructions, refusing to admit certain photographs and book excerpts, and applying two sentencing enhancements. We review the district court’s decision on whether a defendant has presented sufficient evidence to warrant an instruction and the court’s evidentiary rulings for abuse of discretion. United States v. Spentz, 653 F.3d 815, 818 (9th *725 Cir.2011), cert. denied, — U.S. —, 132 S.Ct. 1600 , 182 L.Ed.2d 209 (2012); United States v. Waters, 627 F.3d 345, 351-52 (9th Cir.2010). “We review the district court’s interpretation of the Sentencing Guidelines de novo, the district court’s application of the Sentencing Guidelines to the facts of [a] case for abuse of discretion, and the district court’s factual findings for clear error.” United States v. May, 706 F.3d 1209, 1212 (9th Cir.2013) (internal quotation marks omitted). We have jurisdiction pursuant to 28 U.S.C. § 1291 , and we affirm.

I

The district court found that no reasonable jury…

concurring in part and dissenting in part:

I concur in the majority’s resolution of the evidentiary and sentencing issues, but I disagree with its ruling on the defendant’s entitlement to an entrapment instruction. In reaching its conclusion that Kurt was not entitled to an entrapment instruction, the majority — like the trial court — improperly weighs the evidence and makes credibility determinations, assessments which should be reserved for the jury. I therefore respectfully dissent from Part I of the majority’s Memorandum.

1. Kurt’s only defense was entrapment. He testified that he had been a white supremacist for several years but that, after witnessing the brutal beating of an acquaintance, he renounced his allegiance to the movement. He then decided to use his connections to monitor the activities and threat level of supremacist groups in the region. Kurt became particularly concerned about an offshoot of the Northwest Front, a leading white supremacist organization, after speaking with the government informant. He testified that his primary motivation was to keep tabs on the Northwest Front out of concern for Anthony Johnson, the man who had been severely beaten. Kurt…