United States v. Kurns

At Federal Sentencing, Do Signed ATF Forms Prove You Possessed the Guns? United States v. Kurns, 129 F.4th 589 (9th Cir. 2025)

Boland Aarab PLLP

They can. In United States v. Kurns, 129 F.4th 589 (9th Cir. 2025), a published opinion in a case from a Helena, Montana pawn shop, the Ninth Circuit held that a felon’s signatures on ATF firearm transfer forms, together with testimony about the shop’s practices, supported a finding that he possessed the firearms, at least constructively. The court also held that a firearm’s large-capacity magazine could be proved by an agent’s testimony about a surveillance photo, found no Fifth Amendment violation, and affirmed the sentence.

Key Takeaways

• Facts behind federal sentencing enhancements need only be proved by a preponderance of the evidence, “more likely than not” (Kurns, slip op. at 10, 14, applying United States v. Lucas, 101 F.4th 1158 (9th Cir. 2024) (en banc)).
• An experienced ATF agent’s testimony about a magazine visible in a surveillance photo can support the large-capacity-magazine base offense level, even without the physical gun (slip op. at 11–13; 129 F.4th at 595–96).
• Completing the ATF transfer form that a sale legally requires “supports an inference of constructive possession” of the firearm (slip op. at 15–16).
• A judge’s remark that a defendant could testify is not, by itself, an adverse inference from silence (slip op. at 18–19).

In this case sheet: At a glance · Watch the argument · What the court held · Our position · What it means · Laws · When it applies · How hard · Related law · FAQ

The lawyers who argued this case are the lawyers who handle yours. Contact Boland Aarab PLLP for a free consultation at (406) 315-3737.

At a glance

Watch the oral argument

Samir F. Aarab argued Kurns before the Ninth Circuit in Portland on October 21, 2024. Watch the argument on the Ninth Circuit’s official channel.

What did the Ninth Circuit hold in United States v. Kurns?

Brandon Kurns had a 2020 Montana felony conviction for criminal endangerment. In June 2021, while on state probation, he went to work at Modern Pawn & Consignment in Helena. There he inventoried and sold firearms and ammunition and ran background checks for gun sales (slip op. at 4–5). After ATF traced stolen gunpowder to the shop, agents searched it and seized surveillance footage and transfer records (slip op. at 5–6). The video showed him handling five firearms, including an AR-style pistol. For other sales, he completed the transfer paperwork, but the sales were not on video (slip op. at 6).

He pleaded guilty to being a felon in possession of a firearm, 18 U.S.C. § 922(g)(1). The district court calculated an advisory guideline range of 84 to 105 months. It applied:

• a base offense level of 20 for a semiautomatic firearm capable of accepting a large-capacity magazine (U.S.S.G. § 2K2.1(a)(4)(B)(i)(I));
• four levels for eight or more firearms (§ 2K2.1(b)(1)(B)).

It then varied down and imposed 36 months (slip op. at 5–6, 9).

The Ninth Circuit affirmed on each issue:

1. Magazine. The agent’s testimony, based on 18 years of experience and the magazine’s appearance and size relative to the grip, plus the absence of replicas or .22-caliber AR pistols at the shop, was enough under a preponderance standard (slip op. at 12).
2. Eight or more firearms. His signatures on the transfer forms, with the agent’s testimony that one employee usually handled each transaction, made it “more likely than not” that he possessed those guns. Even if he had not held them, completing the required form gave him control over whether the guns could lawfully leave the store, which is constructive possession (slip op. at 13–16).
3. Fifth Amendment. The judge’s comment that the defense could put Mr. Kurns on the stand did not show that the court weighed his silence (slip op. at 18–19).
4. Second Amendment. A Bruen challenge raised for the first time in a post-briefing letter was not considered (slip op. at 19–20).

What did we argue, and how did the Court differ?

Our position. Samir handled both the sentencing hearing and the appeal. We argued that:

• Photo testimony was not enough. An agent’s reading of a magazine in a photograph, without the gun or magazine, did not prove a large-capacity magazine. We relied on United States v. Lucas, 70 F.4th 1218 (9th Cir. 2023) (Lucas I) (slip op. at 11).
• Paperwork is not possession. Signing a transfer form, without video, did not prove he physically possessed a gun. The defense investigator reviewed 800 hours of footage and found that more than one employee sometimes served a single customer (slip op. at 9, 13–14).
• The court penalized silence. When the judge suggested the defense could put Mr. Kurns on the stand to deny touching the guns, it effectively shifted the burden, as in United States v. Mezas de Jesus, 217 F.3d 638 (9th Cir. 2000) (slip op. at 8–9, 16–17).

How the court differed.

• The standard had changed. While the appeal was pending, the en banc court in Lucas II overruled the circuit’s clear-and-convincing requirement and adopted a preponderance standard for guideline facts. Under that standard, the panel held, the agent’s inability to name the exact make and model or to rule out a replica was “not dispositive” (slip op. at 11–12).
• Possession. The panel held that “absolute certainty is not required.” It also held that, in any event, the transfer forms established constructive possession (slip op. at 14–16).
• Silence. The panel distinguished Mezas de Jesus because the judge never implied Mr. Kurns’s testimony was needed to rebut the government’s case. It did acknowledge “good reason to be cautious about judicial comments on a refusal to testify” (slip op. at 18–19).

No judge dissented.

What did Kurns mean for the law?

Kurns is a published opinion, so it binds district courts and future panels in the Ninth Circuit, which includes Montana. It applies the preponderance standard of Lucas II to two recurring firearm enhancements:

• Magazine capacity can be shown circumstantially. The Ninth Circuit has since cited Kurns for the point that video and a government firearms witness’s identification can support the large-capacity-magazine enhancement (United States v. Perez, No. 23-3861 (9th Cir. Feb. 11, 2026) (mem.), citing 129 F.4th at 595–96).
• Constructive possession through paperwork. The U.S. Sentencing Commission’s 2025 case-law update summarizes Kurns for the rule that executing ATF transfer documents “supports an inference of [his] constructive possession” of a firearm when counting firearms under § 2K2.1(b)(1).
• Comments on testifying. A judge noting that a defendant may testify is different from treating silence as evidence (slip op. at 18–19, discussing Mitchell v. United States and Mezas de Jesus).
• Raise constitutional arguments early. Arguments first raised in a Rule 28(j) letter are ordinarily waived (slip op. at 19–20).

Which laws and rules apply?

• 18 U.S.C. § 922(g)(1): felon in possession of a firearm
• U.S.S.G. § 2K2.1: the firearms guideline, including subsections (a)(4)(B) and (b)(1)(B) (U.S. Sentencing Commission firearms primer)
• 27 C.F.R. § 478.124: the ATF firearms transaction record (Form 4473) (slip op. at 15–16)
• U.S. Const. amend. V; Mitchell v. United States, 526 U.S. 314 (1999)
• Henderson v. United States, 575 U.S. 622 (2015): constructive possession
• New York State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1 (2022)
• Fed. R. App. P. 28: briefs and letters of supplemental authority

When might Kurns apply to you?

• A job around firearms after a felony conviction. Completing sales paperwork at a gun counter can be treated as control over the guns, even without touching them (slip op. at 15–16).
• Sentencing based on photos or video. An agent’s experienced reading of an image can be enough to prove a firearm feature by a preponderance (slip op. at 12).
• Deciding whether to testify at sentencing. A court may not treat silence as evidence, but it may note that testifying is an option (slip op. at 18–19).

How hard is a federal sentencing appeal in the Ninth Circuit?

These appeals are difficult:

• Layered standards of review. The court reviews the choice of guideline de novo, factual findings for clear error, and the application of the guidelines to the facts for abuse of discretion (slip op. at 10, citing United States v. Gasca-Ruiz, 852 F.3d 1167 (9th Cir. 2017) (en banc)).
• A low burden of proof. Sentencing facts need only be “more likely than not” (slip op. at 10, 14).
• Findings stand unless “illogical, implausible, or without support” in the record (slip op. at 10, quoting United States v. Hinkson).
• Late arguments are usually waived (slip op. at 20).

Related law and later decisions

Statutes and rules

• 18 U.S.C. § 922 and 27 C.F.R. § 478.124
• U.S.S.G. § 2K2.1: amended from time to time by the Sentencing Commission. Check the manual in effect at the date of sentencing.
• Fed. R. App. P. 28
• No Montana statute is involved; the prior conviction was a Montana felony.

Later decisions citing this case

• United States v. Perez, No. 23-3861 (9th Cir. Feb. 11, 2026) (mem.): cites Kurns at 595–96 on proving a large-capacity magazine from video and a government witness’s identification
• Also summarized in the U.S. Sentencing Commission’s 2025 Case Law Update (not a court decision)

The Boland Aarab Way

Samir F. Aarab of Boland Aarab PLLP represented Mr. Kurns at sentencing and on appeal, and argued the case in Portland. The Ninth Circuit affirmed. We publish results like this one alongside the others because they show how the law actually develops and how we build a record: cross-examining the agent, calling our own investigator, and pressing the burden of proof. That same preparation goes into our serious trucking and injury cases and catastrophic injury cases. When you hire Boland Aarab, you work directly with the attorneys who stand up in courts like this one.

Frequently Asked Questions

What standard of proof applies to federal sentencing enhancements in the Ninth Circuit? Preponderance of the evidence. After United States v. Lucas, 101 F.4th 1158 (9th Cir. 2024) (en banc), the government must show the facts are more likely than not (Kurns, slip op. at 10–11, 14).

Can you “possess” a gun you never touched? Yes, through constructive possession: knowledge of the gun plus the power and intention to control it. In Kurns, completing the legally required transfer form was enough (slip op. at 14–16).

Can a federal judge hold it against you for not testifying at sentencing? No. A sentencing court may not draw an adverse inference from silence (Mitchell v. United States, 526 U.S. 314 (1999)). In Kurns, the court found no sign the judge weighed silence (slip op. at 16–19).

Work With the Lawyers Behind These Cases

Boland Aarab is a Great Falls trial firm. The same attorneys who brief and argue before the Montana Supreme Court and the Ninth Circuit handle our clients’ serious injury, trucking and wrongful-death cases from the first call. Contact Boland Aarab PLLP for a free consultation at (406) 315-3737.

About Boland Aarab PLLP: Boland Aarab PLLP is a Great Falls, Montana trial firm. Its attorneys, Caitlin Boland Aarab and Samir F. Aarab, have appeared in more than 40 matters before the Montana Supreme Court and have argued twice before the U.S. Court of Appeals for the Ninth Circuit. The firm carries on the Great Falls practice Thomas E. Boland began in 1974. Meet our attorneys.

Sources:

• United States v. Kurns, 129 F.4th 589 (9th Cir. 2025) (official opinion)
• Oral argument video, Oct. 21, 2024 (Ninth Circuit) and audio
• United States v. Perez, No. 23-3861 (9th Cir. 2026) (mem.)
• U.S. Sentencing Commission, Interactive Case Law Update, Jan.–Dec. 2025 (PDF)
• 18 U.S.C. § 922
• 27 C.F.R. § 478.124
• U.S. Sentencing Commission firearms primer
• Mitchell v. United States, 526 U.S. 314 (1999)
• Henderson v. United States, 575 U.S. 622 (2015)
• New York State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1 (2022)

Disclaimer: This article is for informational purposes only and does not constitute legal advice. Reading it does not create an attorney-client relationship.