502 F.3d 829 (9th Cir. 2007), 05-30457, United States v. Ankeny

Docket Nº:05-30457.
Citation:502 F.3d 829
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Kelly David ANKENY, Sr., Defendant-Appellant.
Case Date:June 19, 2007
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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502 F.3d 829 (9th Cir. 2007)

UNITED STATES of America, Plaintiff-Appellee,

v.

Kelly David ANKENY, Sr., Defendant-Appellant.

No. 05-30457.

United States Court of Appeals, Ninth Circuit.

June 19, 2007

Argued July 27, 2006.

Resubmitted June 5, 2007.

Amended September 5, 2007.

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[Copyrighted Material Omitted]

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Stephen R. Sady, Chief Deputy Federal Public Defender, Portland, OR, for the defendant-appellant.

Richard A. Friedman, Appellate Section, Criminal Division, United States Department of Justice, Washington, DC, for the plaintiff-appellee.

Appeal from the United States District Court for the District of Oregon, D.C. No. CR-04-00005-MWM. Michael W. Mosman, District Judge, Presiding . D.C. No. CR-04-00005-MWM.

Before: STEPHEN REINHARDT, A. WALLACE TASHIMA, and SUSAN P. GRABER, Circuit Judges.

Opinion by Judge GRABER; Dissent by Judge REINHARDT.

ORDER

The government's request for clarification is GRANTED. The opinion filed on June 19, 2007, is amended as follows:

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On slip opinion page 7239 (490 F.3d 744, 756), replace the last sentence of footnote 7 with:

We need not decide whether the amendment applies retroactively, though, because the government--despite later assertions to the contrary--never argued in briefing or oral argument that the amendment should apply retroactively. See Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir.1999) ("[O]n appeal, arguments not raised by a party in its opening brief are deemed waived.").

Judges Tashima and Graber have voted to deny the petition for panel rehearing, and Judge Reinhardt has voted to grant it. Judge Graber has voted to deny the petition for rehearing en banc, and Judge Tashima has so recommended. Judge Reinhardt has voted to grant the petition for rehearing en banc.

The full court has been advised of the petition for rehearing en banc and no judge of the court has requested a vote on it.

The petition for panel rehearing and petition for rehearing en banc are DENIED.

No further petitions for rehearing or rehearing en banc may be filed.

OPINION

GRABER, Circuit Judge:

Defendant Kelly David Ankeny, Sr., was indicted on four counts of being a felon in possession of a firearm and one count of possession of an unregistered sawed-off shotgun. The district court denied his motion to suppress and, reserving the right to appeal that decision, Defendant pleaded guilty. The district court sentenced him to 262 months' imprisonment pursuant to the Armed Career Criminal Act of 1984 ("ACCA") and the Career Offender provision of the United States Sentencing Guidelines ("U.S.S.G.").

On appeal, Defendant argues that: (1) the evidence seized during the search of his residence should have been suppressed; (2) the district court should have dismissed all but one count of felon in possession; (3) the government should have been required to allege Defendant's prior convictions in the indictment and prove them to a jury beyond a reasonable doubt; (4) his prior convictions do not qualify as predicate felonies under ACCA; and (5) the district court erred in applying the Career Offender guideline.

We hold that the motion to suppress was properly denied, but that the convictions were multiplicitous and that material errors were made at sentencing. Thus, we affirm the convictions but vacate the sentence and remand for resentencing.

FACTUAL AND PROCEDURAL HISTORY

On October 21, 2003, Michele Rayley reported to the Portland police that Defendant, with whom she has an 18-year-old son, had choked and kicked her. The altercation with Defendant took place when Rayley went to the house where their son was living, located at 936 N.E. 94th Avenue in Portland, and found that Defendant was living there. She confronted Defendant about her belief that he was supplying drugs to their son, at which point Defendant became angry and attacked her. He then ran to another floor of the house and returned waving a semi-automatic handgun. Rayley told police that she believed Defendant was using methamphetamines and that he might flee or shoot at police.

The case was referred to Officer Rhodes of the Domestic Violence Reduction Unit. In ongoing conversations, Rayley reported to Rhodes that several other people, including an infant and a prison associate of Defendant, also were living in the house.

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Rayley told Rhodes that, on October 31, 2003, she and Defendant had another argument during which he displayed a handgun.

Officer Rhodes conducted a background check on Defendant and found that he had several outstanding arrest warrants and an extensive criminal history, including convictions for possession and delivery or manufacture of controlled substances, attempting to elude a police officer, escape, felon in possession of a firearm, and robbery. He also had been charged with, but not convicted of, assault on a police officer and aggravated assault.

The police considered various options for how to proceed, including arresting Defendant during a traffic stop, and ultimately decided that it was necessary to arrest Defendant at the house. The police believed that a street arrest would pose a risk to public safety because Defendant had a lengthy record of violence and hostility toward the police. Further, the police believed that an arrest outside the house would be risky because there was evidence of drug and firearm activity inside the house, in addition to the presence of a prison associate of Defendant.

A warrant was authorized on November 18, 2003, and executed on November 20, 2003, at around 5:30 a.m. The house was dark, and there was no noise or movement from within. The Special Emergency Reaction Team ("SERT") led the operation. Thirteen officers were assigned to enter the home and, in total, 44 officers participated in the execution of the warrant.

Officer Stradley yelled "police, search warrant" while pounding on the door and, about one second later, officers used a battering ram to break open the door. Officer Wilcox entered and directed a light-mounted weapon into the house. Defendant had been sleeping on a recliner near the front door; he stood up as the officers broke down the door. Officer Wilcox instructed Defendant to show his hands and get down. Officer Forsyth then threw a flash-bang device into the center of the room. Officer Forsyth testified at the suppression hearing that he heard Officer Wilcox tell Defendant to show his hands; he did not recall hearing him tell Defendant to get down. The flash-bang device had a fuse delay of one to one-and-a-half seconds. Officer Forsyth stated that Defendant went down to the floor during that delay, and the device exploded near his upper body. Because of his proximity to the flash-bang device when it exploded, Defendant suffered first-and second-degree burns to his face and chest and second-degree burns to his upper arms.

Meanwhile, officers stationed outside the house shot out the second-story windows with rubber bullets. Officers securing the second level of the house threw a second flash-bang device into an open area. A man and a woman were lying in bed in that area, and the explosion caused the bed to catch fire. After attempting to extinguish the fire, officers threw the mattress and box spring out of a window.

Extensive damage was done to the house during the entry. The police shot out approximately ten windows, kicked in many doors, burned carpet, and made holes in the walls and ceilings with the rubber bullets.1

Thereafter, the police recovered a 9mm semiautomatic handgun from the crack between the arm and the bottom cushion of the chair in which Defendant was sitting when the police entered the house. They also recovered a semiautomatic handgun

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on an adjacent chair. The police found a 12-gauge sawed-off shotgun and a .22-caliber long rifle in a closet in an upstairs bedroom and another .22-caliber rifle in the basement of the house. The police seized approximately $3,000, ammunition, and suspected drugs and drug paraphernalia.

Defendant was indicted on four counts of being a felon in possession of a firearm and one count of possession of an unregistered sawed-off shotgun. Soon thereafter, the government filed notice of its intent to seek a sentence enhancement under the ACCA and identified three predicate felonies. Defendant moved to suppress the evidence seized during the search. After an evidentiary hearing, briefing, and argument, the district court denied the motion. Defendant entered a conditional guilty plea, reserving the right to appeal the denial of his motion to suppress.

The Presentence Investigation Report ("PSR") specified a base offense level of 37, which included application of the Career Offender guideline. After a three-level downward adjustment for acceptance of responsibility, Defendant's total offense level was 34 with a criminal history category of VI, resulting in an advisory Sentencing Guidelines range of 262 to 327 months.

Defendant filed a motion to dismiss as multiplicitous all but one count of his being a felon in possession of a firearm. He also filed objections to the application of the ACCA and the Career Offender guideline. He argued both that his prior convictions were not predicate felonies under ACCA and that prior convictions must be alleged in the indictment and proved to a jury in order to comport with the Sixth Amendment. The district court rejected all of Defendant's arguments. The court considered various sentencing factors and acknowledged that the Guidelines were advisory, but declined to go below the Guideline range because of the seriousness of the offense and Defendant's extensive criminal record. The court...

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