U.S. v. Jennings

Decision Date04 February 2008
Docket NumberNo. 06-30190.,06-30190.
Citation515 F.3d 980
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Devin JENNINGS, Defendant-Appellant.
CourtU.S. Court of Appeals — Ninth Circuit

Michael G. Martin, Siderius Lonergan & Martin, Seattle, WA, for the defendant-appellant.

Carl Andrew Colasurdo, Assistant United States Attorney, Seattle, WA, for the plaintiff-appellee.

Appeal from the United States District Court for the Western District of Washington; James L. Robart, District Judge, Presiding. D.C. No. CR 04-0243 JLR.

Before: DIARMUID F. O'SCANNLAIN, A. WALLACE TASHIMA, and MARSHA S. BERZON, Circuit Judges.

TASHIMA, Circuit Judge:

In this appeal, Devin Jennings challenges the district court's denial of his motions to suppress evidence and the district court's determination that he was subject to a fifteen-year mandatory mini mum sentence under 18 U.S.C. § 924(e), the Armed Career Criminal Act ("ACCA"). Jennings entered a conditional guilty plea to charges of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1), and possession of a firearm with an obliterated serial number, in violation of 18 U.S.C. § 922(k). He was sentenced to a fifteen-year term of imprisonment for the felon-in-possession charge, and a five-year concurrent sentence for the second charge.

We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), and we affirm Jennings' conviction, but vacate his sentence. We conclude that Jennings did not suffer a violation of his Fourth or Fifth Amendment rights; thus, the challenged evidence was properly held to be admissible. We further conclude, however, that Jennings did not qualify for a fifteen-year mandatory minimum sentence under the ACCA because he has not suffered three prior convictions for "violent felonies" within the meaning of 18 U.S.C. § 924(e)(2)(B).

BACKGROUND

In August 2003, Jennings was released from Washington state prison after serving seventeen months for attempting to elude a pursuing police vehicle. After his release, Jennings was under community supervision by the Washington State Department of Corrections.

In March 2004, Seattle police found photographs in an impounded car that showed Jennings holding a handgun in February 2004. Jennings' prior felony convictions barred him from possessing a firearm under state and federal law, and a condition of his supervised, release included the same restriction. The photos prompted Jennings' community corrections officer, Steven Lambert, to request a Department of Corrections felony warrant for Jennings' arrest. Later that month, Lambert and Seattle police encountered Jennings on a public street and arrested him. During a search incident to the arrest, the officers found a loaded handgun in Jennings' waistband.

Jennings was initially charged with unlawful possession of a firearm under Washington law, and assigned a public defender as counsel for that proceeding. However, a federal criminal complaint was subsequently filed against Jennings, and the state charge was dismissed. On May 7, 2004, two federal Bureau of Alcohol, Tobacco, and Firearms ("ATF") agents arrested Jennings at the King County Jail in. Seattle in order to transfer him to federal custody.

At the jail, the ATF agents introduced themselves to Jennings, told him they had a federal warrant for his arrest, and asked if he had any personal property:1 Outside the jail, as the agents walked Jennings to the agents' vehicle, Jennings made a statement to the effect of: "If this is about the missing serial number, I didn't know that it was missing." He said that he had not learned that the handgun found in his waistband during his arrest was missing its serial number until he was in jail. Agent Korn told him, "Let me read your Miranda2 rights, and then you can tell us your side of the story." After the agent read the Miranda warnings, Korn asked Jennings if he understood his rights, and Jennings said yes. Korn asked Jennings if he was willing to waive those rights and talk to the agents; Jennings nodded yes. Jennings then told the agents that he had purchased the handgun recovered during his arrest from a white, blonde-haired male for $300.

Jennings moved to suppress the firearm seized during his arrest by Seattle police as the product of an illegal arrest, and to suppress the statements he made to the ATF agents as obtained in violation of the Fifth and Sixth Amendments. The district court denied both motions after an evidentiary hearing. The court found that the arrest was valid based on legal authority under Wash. Rev.Code § 9.94A.631 and/or § 9.94A.740. It also found that Jennings' statements were not obtained in violation of his constitutional rights, because Jennings had initiated the conversation with the ATF agents and because his subsequent waiver of his. Miranda rights was valid.

In a superseding indictment, Jennings was charged in Count One with being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1), and qualifying as an armed career criminal under 18 U.S.C. § 924(e)3 for purposes of determining the mandatory minimum sentence. The superseding indictment alleged that Jennings had a number of adult felony convictions under Washington law, including a 1995 first degree theft conviction, a 1998 second degree assault conviction, and a 2002 conviction for attempting to elude a pursuing police vehicle.4 Count Two of the superseding indictment charged Jennings with possession of a firearm with an obliterated serial number in violation of 18 U.S.C. § 922(k).5

Jennings filed a motion to dismiss the armed career criminal allegation, which the district court denied. It held that both Jennings' 1995 theft conviction and his 2002 eluding police conviction were "violent felonies" and thus predicate offenses under 18 U.S.C. § 924(e), because court documents regarding Jennings' guilty pleas in both cases showed that Jennings admitted to conduct that presented a "serious potential risk of physical injury to another" within the meaning of 18 U.S.C. § 924(e)(2)(B)(ii). As it was undisputed that. Jennings' 1998 assault conviction was a violent felony, the court concluded that Jennings had three predicate offenses, qualifying him as an armed career criminal under 18 U.S.C. § 924(e).

Jennings then pleaded guilty to Counts One and Two, reserving his right to contest his classification as an armed career criminal for sentencing purposes and the right to appeal the denial of his suppression motions. At sentencing, the court again found that Jennings qualified as an armed career criminal, and sentenced him to the mandatory minimum sentence of 180 months' imprisonment under 18 U.S.C. § 924(e)(1) for Count One, and to a concurrent sentence of 60 months' imprisonment for Count Two. This appeal followed.

DISCUSSION
I. Motion to Suppress the Firearm

Jennings first argues that his arrest in March 2004 was illegal under Washington state law because it was based on an invalid arrest warrant issued by his community corrections officer. He contends that his arrest was therefore unreasonable under the Fourth Amendment and that the firearm recovered from him during the arrest should be suppressed as the fruit of an unlawful search. See United States v. Mota, 982 F2d 1384, 1388-89 (9th Cir.1993) (holding a search incident to arrest unconstitutional where the arrest itself was not authorized by state law). We review de novo whether a search or seizure was lawful. United States v. Morales, 252 F.3d 1070, 1073 (9th Cir.2001).

In this case, we need not address the validity of the warrant because Washington law authorized Jennings' arrest even without a warrant, on two distinct grounds. See United States v. Cox, 475 F.2d 837, 841 n. 2 (9th Cir.1973) ("[I]f the arresting officer himself originally had ample probable cause to arrest, the invalidity of the warrant would not be fatal to the government's cause."). First, Washington law authorizes community corrections officers, such as Lambert, to arrest or cause the arrest without a warrant of their supervisees for violations of their conditions of supervision. Wash. Rev.Code §§ 9.94A.631, 9.94A.740(1). The photographs of Jennings brandishing a handgun which was clearly loaded gave Lambert ample basis to believe that Jennings had violated the conditions of his supervision. Second, Washington police officers possess statutory authority to make. warrantless public arrests for felonies. Wash. Rev. Code § 10.31.100. Officer Cobane, one of the arresting Seattle police officers, had seen the photographs and knew that Jennings had prior felony convictions. This knowledge gave the officer probable cause to arrest Jennings for, the crime of being a felon in possession of a firearm (a felony under both state and federal law). See Wash. Rev.Code § 9.41.010(11)-(12); Wash. Rev.Code § 9.41.040(1); see also 18 U.S.C. § 922(g)(1).

Jennings' argument that his arrest was invalid under Washington law, and that the resulting search was unreasonable under the Fourth Amendment, fails. The district court did not err in denying his motion to suppress the fruits of the search incident to his arrest.

II. Motion to Suppress Statements

Jennings also contends that the district court should have suppressed the statements he made to the ATF agents on May 7, 2004, because those statements were obtained in violation of his rights under the Fifth Amendment. Jennings argues that because he was represented by counsel at that point, the federal agents could not properly question him unless Jennings himself initiated the conversation. Jennings claims that it was the federal agents who initiated communications with him, which rendered his subsequent waiver of his Fifth Amendment rights invalid. Our review of the voluntariness of a Miranda waiver is de novo, but we will not disturb the district court's underlying factual findings unless they are clearly erroneous. United States v....

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