United States v. Bare

• Decision Date: 24 November 2015
• Docket Number: No. 14–10475.,14–10475.
• Citation: 806 F.3d 1011
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Ibrahim Fahab BARE, Defendant–Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

806 F.3d 1011

UNITED STATES of America, Plaintiff–Appellee,

v.Ibrahim Fahab BARE, Defendant–Appellant.

No. 14–10475.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Aug. 13, 2015.

Filed Nov. 24, 2015.

Keith J. Hilzendeger (argued), Assistant Federal Public Defender; Jon M. Sands, Federal Public Defender, Phoenix, AZ, for Defendant–Appellant.

Lacy Cooper(argued), Assistant United States Attorney; John S. Leonardo, United States Attorney; Mark S. Kokanovich, Assistant United States Attorney, Deputy Appellate Chief, Phoenix, AZ, for Plaintiff–Appellee.

Opinion by Judge TALLMAN; Dissent by Judge KOZINSKI.

OPINION

TALLMAN, Circuit Judge:

On December 13, 2012, a jury convicted Ibrahim Fahab Bare—a non-Indian who lives on tribal land with his common-law wife—of two counts of being a felon in possession of a firearm. Bare challenges his 4–level sentencing enhancement for his use of a firearm in connection with another felony offense, as well as his condition of supervised release permitting searches of his computers and other electronic devices by a United States Probation Officer. We hold that due to the Assimilative Crimes Act (“ACA”), it does not matter whether the requisite felony offense occurred on tribal lands or within the state's jurisdiction in order to apply an enhancement for discharging a firearm under United States Sentencing Guidelines § 2K2.1(b)(6)(B). We further hold that so long as a district court makes a properly supported factual finding from the record before it, establishing some nexus between computer use and the need for the sentence imposed to accomplish deterrence, protection of the public, or rehabilitation of the defendant, it is not an abuse of discretion for the district court to impose a condition of supervised release permitting the search of a defendant's personal computers. Because the district court made such a permissible factual finding establishing the nexus here, and because Bare is subject to punishment for committing the felony offense of disorderly conduct involving weapons in connection with his felon in possession conviction, we affirm.

I

On April 9, 2012, Navajo Tribal Police responded to a call reporting shots fired at Bare's residence located on the Navajo Reservation in Whippoorwill, Arizona.¹Witnesses reported to officers that Bare and Keithaniel Begay began to argue in the threshold of Bare's residence over Bare's refusal to provide cigarettes to an intoxicated Begay. As the argument escalated, Bare pulled out a pistol and pointed it at Begay. Unarmed, Begay turned and started to walk away from the residence when Bare fired a shot over Begay's head. According to one of Begay's sisters, Bare also threatened to kill Begay. Another sister—who is also Bare's neighbor—reported that Bare threatened her by warning, “You know I can kill you.”

Bare's common-law wife consented to a search of their shared residence. Officers recovered a nine-millimeter Jimenez Arms pistol inside a bag of dog food located in the dining room, as well as one spent shell casing located on the ground outside the home. After ignoring multiple commands to submit to arrest, the officers pepper sprayed Bare and took him into custody. The case was referred to federal authorities for prosecution.

On May 7, 2012, the United States filed a complaint in federal court alleging Bare committed a felony firearms offense. Because Bare failed to appear in court, federal agents went to his residence with an arrest warrant. When the agents approached, Bare ran inside the residence, locked the front door, and began destroying items. After Bare unlocked the door and emerged from the residence, agents took him into custody and searched the home. The search revealed:

An Elk River Tool and Die Inc. model ERTD AK47 7.62 caliber [assault] rifle with an attached magazine loaded with 47 rounds of 7.62x39 ammunition [;] a Savage model 110E .30–06 caliber rifle with six rounds attached to the butt of the rifle, ... a BB handgun, two ammunition magazines, 81 rounds of various brand 9–millimeter ammunition, 50 rounds of Remington .45 caliber ammunition, and 50 rounds of Remington .32 caliber ammunition.

The agents also found pills, drugs, a digital scale, and a financial ledger “titled ‘My Money’ with names and numbers next to the names.” Bare admitted he knew he could not possess firearms due to prior felony convictions.²

Bare denied ownership of the weapons. He claimed two of the firearms belonged to family members, and the rest “were in his possession as they were ‘pawned’ as part of his self-employed, in-home pawn business.” Bare's common-law wife also told investigators during an interview that she “believed the financial ledger discovered in the residence was a list of Bare's pawn customers.” She acknowledged her prior awareness of the firearms that had been found in their home and told agents she thought Bare had “taken them in pawn.”

On December 13, 2012, a jury found Bare guilty of two counts of being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1)and 924(a)(2).

II

The district court initially sentenced Bare on April 8, 2013. It applied a base offense level of 22 after treating Bare's felony for resisting arrest as a crime of violence. SeeU.S.S.G. § 2K2.1(a)(3)(B)(base offense level of 22 for “unlawful receipt, possession, or transportation of firearms or ammunition” if “the defendant committed any part of the instant offense subsequent to sustaining one felony conviction of ... a crime of violence”). It also applied a 2–level enhancement because the offense involved at least three firearms. See id.§ 2K2.1(b)(1)(A). At the time of Bare's initial sentencing, the United States Probation Office did not recommend, and the district court did not therefore adopt, a 4–level enhancement for the use of a firearm in connection with another felony offense. See id.§ 2K2.1(b)(6)(B). Bare's total offense level (24), coupled with his criminal history category (II), resulted in an advisory Guidelines range of 57–71 months.

At sentencing, the district court explained Bare's offense was “perhaps one of the worst felon in possession cases I have seen in my nine years as a judge of this court ... because of the length, the awareness of the wrongfulness, the commercial possession of taking of firearms, [and] the discharge of the firearm.” It sentenced Bare to 57 months imprisonment. In addition, the district court imposed a computer search condition of supervised release. It overruled Bare's objection to this condition, expressly finding a nexus between Bare's operation of a pawn business involving firearms and the ability to store records related to that business on computers or other electronic devices: “I do see a nexus here ... because there was a commercial context to what he was doing that goes directly to the offense in possession.”

Bare appealed his conviction and sentence. United States v. Bare,583 Fed.Appx. 721, 722 (9th Cir.2014). We affirmed his conviction, but vacated his sentence because the district court erred when calculating his base offense level. Id.at 723–24. We held Bare had not previously been convicted of a crime of violence, which “might well [have] affect[ed] the district court's sentencing decision.” Id.at 724; see also United States v. Flores–Cordero,723 F.3d 1085, 1088 (9th Cir.2013)(“[A]n Arizona conviction for resisting arrest cannot be considered categorically a crime of violence under the federal Sentencing Guidelines.”).

Bare's resentencing took place on October 21, 2014. Upon remand, Bare's corrected base offense level was 20. SeeU.S.S.G. § 2K2.1(a)(4). The district court once again applied a 2–level enhancement because the offense involved at least three firearms. See id.§ 2K2.1(b)(1)(A). In addition, it applied the 4–level enhancement for the use of a firearm in connection with another felony offense—disorderly conduct in violation of Arizona Revised Statutes § 13–2904(A)(6). See id.§ 2K2.1(b)(6)(B). Probation explained it was an error to fail to include this enhancement in Bare's original Presentence Report. Bare's resulting total offense level was 26, with an advisory Guidelines range of 70–87 months.

The district court incorporated its view that the “comments in the first sentencing [we]re all still correct,” and emphasized:

[A]s I remarked the last time, I think this is probably the most serious felon in possession case that I have seen in my years on the Court, most serious in terms of not just possession but dischargingthe firearm in an environment of uncontrolled anger with a history of uncontrollable anger; a history of violence, fortunately, violence that didn't result in any serious injury; but the history of prior incarceration with a string of discipline violations during the prior incarceration.

So this is a case that's really the top end of the chart in terms of the seriousness of the offense, the need for the sentence to respect the seriousness of the offense, to promote respect for the law, to provide deterrence to [Bare], is critically important for the safety of the community....

Recognizing Bare's recent success and lack of disciplinary infractions while in custody on the latest charges, the district court sentenced him to 54 months imprisonment.

Finally, the district court reimposed the computer search condition of supervised release: “You shall submit your person, property, house, residence, vehicles, papers, computers as defined in 18 U.S.C. § 1030(e)(1), other electronic communications or data storage devices or media, or office, to a search conducted by a probation officer.... You shall warn any other occupants that the premises may be subject to searches pursuant to this condition.” Bare objected to the portion of this condition as it related to computers or “data compilations,” but did not object to the other aspects of the search condition.³The district court overruled Bare's objection, finding that “in light of the fact that Mr. Bare was taking firearms...