United States v. Adkins

• Decision Date: 05 March 2018
• Docket Number: No. 15-10566,15-10566
• Citation: 883 F.3d 1207
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Tineimalo ADKINS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

883 F.3d 1207

UNITED STATES of America, Plaintiff-Appellee,

v.Tineimalo ADKINS, Defendant-Appellant.

No. 15-10566

United States Court of Appeals, Ninth Circuit.

Argued and Submitted October 10, 2017 Honolulu, Hawaii

Filed March 5, 2018

Marcus B. Sierra (argued), Honolulu, Hawaii, for Defendant-Appellant.

Jill Aiko Otake (argued), Assistant United States Attorney, United States Attorney's Office, Honolulu, Hawaii, for Plaintiff-Appellee.

Before: Mary M. Schroeder, Dorothy W. Nelson, and M. Margaret McKeown, Circuit Judges.

D.W. NELSON, Circuit Judge:

OVERVIEW

Tineimalo Adkins appeals his conviction for a Violent Crime in Aid of Racketeering (VICAR) under 18 U.S.C. § § 1959(a)(3), (2). Adkins argues that the district court erred in instructing the jury on the federal, rather than state, definition of "knowingly." Because any error was harmless, we AFFIRM Adkins's conviction.

Adkins also appeals his 210-month sentence, arguing that his prior convictions do not constitute crimes of violence under U.S.S.G. § 4B1.2. Because we find that Adkins's burglary and false imprisonment convictions qualify as crimes of violence under § 4B1.2's residual clause, we AFFIRM Adkins's sentence.

FACTUAL BACKGROUND & PROCEDURAL HISTORY

While incarcerated at the Halawa Correctional Facility in Hawaii, Adkins and five other members of the United Samoan Organization (USOs) prison gang beat B.L., a member of a rival gang, for owing a drug debt to the USOs.

On October 10, 2014, a jury found Adkins guilty of a Violent Crime in Aid of Racketeering in violation of 18 U.S.C. § § 1959(a)(3), (2). As the basis for the VICAR offense, Count 4 of the Indictment specifically alleged that Adkins knowingly committed an assault on B.L. "in violation of [s]ection 707-710 of the Penal Code of the State of Hawaii." Adkins submitted a Proposed Jury Instruction No. 4 setting forth the material elements of a section 707-710 violation, including the definitions of "serious bodily injury" and "knowingly" in the Hawaii Penal Code. The Hawaii Penal Code definition in Adkins's proposed instruction was: "A person acts ‘knowingly’ with respect to a result of his conduct when he is aware that it is practically certain that his conduct will cause such a result." The proposed definition also contained a self-defense instruction. In contrast, the government proposed a federal definition of "knowingly" that did not contain a self-defense instruction: "The word ‘knowingly’ means that the act was done voluntarily and intentionally, and not because of mistake or accident." Over Adkins's objections, the court adopted the government's broader, federal definition of "knowingly."

Before sentencing, the government requested that Adkins be designated a career offender under U.S.S.G. § 4B1.1. At that time, Adkins had three prior convictions: a 1997 conviction for Unlawful Imprisonment in the First Degree under Hawaii Revised Statutes section 702-721 and Sexual Assault in the Third Degree under Hawaii Revised Statutes section 707-732, both arising from the same incident; and a 2003 conviction for Burglary in the First Degree under Hawaii Revised Statutes section 708-810.

Adkins filed a Motion to Continue Sentencing, pending the outcome of Johnson v. United States , ––– U.S. ––––, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015). The Supreme Court in Johnson ultimately struck down the residual clause of the Armed Career Criminal Act ("ACCA") as unconstitutionally vague. Johnson , 135 S.Ct. at 2557. Since § 4B1.2 contains an identically worded residual clause to the one found in the ACCA, the parties agreed that Johnson by extension applies to the Sentencing Guidelines. The district court thus did not conduct a residual clause analysis for any of Adkins's convictions in light of Johnson and the parties' agreement.

The district court held that Hawaii's Burglary in the First Degree met the federal generic definition of burglary and Hawaii's Sexual Assault in the Third Degree matched the generic definition of sexual abuse of a minor, making both convictions crimes of violence. The district court did not reach whether Hawaii's False Imprisonment in the First Degree was a crime of violence.

Because the district court ruled that Adkins had at least two prior convictions that were crimes of violence, he was subject to a 12-level increase (20 to 32) in his offense level calculations. The advisory guideline imprisonment range for an offense level of 20 is 70 to 87 months. An offense level 32 has a range of 210 to 262 months. The district court sentenced Adkins to 210 months. Adkins timely appealed.

On March 6, 2017, the Supreme Court held in Beckles v. United States , ––– U.S. ––––, 137 S.Ct. 886, 197 L.Ed.2d 145 (2017) that the residual clause in § 4B1.2 of the Sentencing Guidelines is not void for vagueness and thus upheld the clause as constitutional. Beckles , 137 S.Ct. at 897. The government then presented arguments on appeal that all three of Adkins's prior convictions should qualify as crimes of violence under the residual clause.

JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo jury instructions for errors of law. See United States v. Cortes , 757 F.3d 850, 857 (9th Cir. 2014). We review de novo a district court's determinations under the Sentencing Guidelines, including the district court's assessment of whether a prior conviction qualifies as a "crime of violence." See United States v. Chavez-Cuevas , 862 F.3d 729, 734 (9th Cir. 2017).

DISCUSSION

I. Jury Instructions

Adkins argues that the district court erred when it instructed the jury on the federal, rather than the Hawaii Penal Code, definition of "knowingly." In the context of VICAR, we have permitted jury instructions using generic federal definitions. See United States v. Joseph , 465 Fed.Appx. 690, 696 (9th Cir. 2012) (holding that the government could prove "assault" under federal common law, and the court was not required to instruct the jury under state law). However, courts, in certain circumstances, should instruct on the state definition or otherwise risk prejudice to the defendant. See United States v. Carrillo , 229 F.3d 177, 185 (2d Cir. 2000).

In United States v. Pimentel , the Second Circuit reiterated that prejudice would result if a jury were not instructed on a state-law definition that included a self-defense instruction in the context of VICAR and similar statutes. 346 F.3d 285, 303–04 (2d Cir. 2003). "If the jury were ‘instructed simply to find whether the defendant committed the offense of "murder," ’ but ‘not instructed as to the requisite state of mind or the law respecting self-defense[ ]’ ... ‘[a]ffirming such a conviction would be seriously problematic because the defendant's actions, as found by the jury, might not constitute murder.’ " Id. at 303 (quoting Carrillo , 229 F.3d at 184 ) (alterations omitted).

We agree with the Second Circuit. Adkins was deprived of a self-defense instruction found within the Hawaii state definition, but not the federal definition. "Confusion and unfairness" most certainly arises when a jury lacks an instruction that contains this specific defense, and "an appellate court would have no way of knowing what the jury found the defendant's state of mind to be." Id. (citations and internal quotation marks omitted). Thus, the district court erred when it instructed the jury on the federal definition that lacked a self-defense instruction.

Regardless, the error is harmless because "it is clear beyond a reasonable doubt that a rational jury would have found [Adkins] guilty absent the error." United States v. Anchrum , 590 F.3d 795, 801 (9th Cir. 2009) (citations and internal quotation marks omitted). The record supports that Adkins, without provocation, attacked B.L. with five other men. B.L. was sitting down and watching television when Adkins and the other men attacked. Thus, we find that under the state definition of "knowingly", Adkins was "aware that it [was] practically certain that his conduct" would result in harm to B.L. and a rational jury would not find that an unprovoked attack with five other men was done in self-defense.

II. Sentencing Enhancement

A. The Sentencing Commission's Deletion Of The Residual Clause In The Career Offender Guideline is Not Retroactive

A defendant may only be deemed "a career offender" under U.S.S.G. § 4B1.1(a) if the defendant "has at least two prior felony convictions of either a crime of violence or a controlled substance offense." U.S.S.G. § 4B1.1(a). When Adkins received his sentence, § 4B1.2(a) defined a "crime of violence" as:

(a) The term "crime of violence" means any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that—

(1) has as an element the use, attempted use, or threatened use of physical force against the person of another, or

(2) is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.

While this appeal was pending, the Sentencing Commission deleted the residual clause: "or otherwise involves conduct that presents a serious potential risk of physical injury to another." U.S.S.G. App. C, amend. 798 (Supp. Nov. 1, 2016). Adkins had the misfortune of being sentenced prior to this change.

We may, however, apply a Sentencing Guideline amendment retroactively on appeal only if it clarifies existing law, rather than substantively changes the Guidelines. United States v. Morgan , 376 F.3d 1002, 1010–11 (9th Cir. 2004). We determine whether an amendment to the Sentencing Guidelines is clarifying by applying three non-exclusive factors. Id. ("There is no bright-line test for distinguishing between clarifying and substantive amendments."). The three factors are: "(1) whether the amendment is included on the list of retroactive amendments found in U.S.S.G. § 1B1.10(c) ; (2) whether the Commission itself characterized the amendment as a...