United States v. Kinzy
| Docket Number | 22-30169 |
| Decision Date | 26 July 2023 |
| Parties | United States of America, Plaintiff-Appellee, v. Christopher Kinzy, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Fifth Circuit |
REVISED August 24, 2023
Lyle W. Cayce Clerk Appeal from the United States District Court for the Eastern District of Louisiana USDC No. 2:21-CR-102-1
Before BARKSDALE, SOUTHWICK, and HIGGINSON, Circuit Judges. [*]
Christopher Kinzy pleaded guilty to one count of possessing a firearm after being convicted of a felony, in violation of 18 U.S.C § 922(g)(1), and was sentenced to a term of 87 months' imprisonment. He appeals his sentence, arguing that his state conviction for resisting an officer does not qualify as a "crime of violence" under the Sentencing Guidelines, and that the district court lacked a reliable factual foundation for imposing a four-level enhancement for having committed the offense in connection with another felony.
Although we conclude that the district court erred in determining that Kinzy's prior conviction was a crime of violence, we nonetheless AFFIRM.
I.
Kinzy's conviction in this case arises out of a traffic stop on January 25, 2021, in Kenner, Louisiana. According to the presentence report ("PSR"), a police officer pulled Kinzy over because the officer was unable to read Kinzy's vehicle's tinted license plate. The windows of the car were also heavily tinted. When the officer approached the vehicle, he saw a firearm near Kinzy's lap. The officer instructed Kinzy to put his hands out the window, and when the officer grabbed Kinzy's hands, Kinzy began pulling his hands inward, toward the firearm. According to the PSR while reaching for the gun, Kinzy said, Then, "[a] struggle ensued and [officers] were able to disarm [Kinzy] and remove him from the vehicle." Then, while Kinzy was being handcuffed, he elbowed an assisting officer in the chest, causing the officer to lose his grip on Kinzy. Kinzy then pushed the officer to the ground. According to the PSR, the officer sustained "an internal injury to his upper body" requiring "immediate hospitalization and surgery for pectoralis and major muscle repair to his right shoulder."
On August 12, 2021, a grand jury indicted Kinzy on one count of possession of a firearm after being convicted of a felony, in violation of 18 U.S.C. § 922(g)(1). On December 14 2021, Kinzy pleaded guilty without a written plea agreement.
Kinzy's PSR calculated a base offense level of 20, pursuant to U.S.S.G. § 2K2.1(a)(4)(A), because he committed the firearm offense after sustaining a felony conviction for a "crime of violence." [1] The PSR cited Kinzy's March 18, 2019, conviction for resisting police with force or violence, in violation of Louisiana Rev. Stat. § 14:108.2. The PSR also included a four-point increase in his offense level under § 2K2.1(b)(6)(B) for using or possessing a firearm in connection with another felony offense, noting that Kinzy "threatened to shoot and/or kill" the officer during the traffic stop. Kinzy received a three-point reduction for his acceptance of responsibility. Based on his total offense level of 21 and his criminal history category of VI, Kinzy's guideline range was 77 to 96 months' imprisonment.
Kinzy filed written objections to the PSR's base offense level, asserting that his prior conviction for resisting police by force or violence is not a "crime of violence." Kinzy also objected to the four-level enhancement, denying that he threatened to shoot or kill an officer and denying that he reached for the firearm. Kinzy contended that, during the traffic stop, he was "tackled by multiple officers; one of his teeth [was] knocked out and another was broken by the officers."
The Government opposed Kinzy's objections, attaching the probablecause affidavit and a crime report in support of the four-level enhancement. The Government also asserted that Kinzy's state conviction for resisting police with force or violence constituted a crime of violence. The Government argued that the underlying state statute is divisible and that the offense described in the subsection at issue is a crime of violence under the Sentencing Guidelines. The Government submitted the charging document from the state conviction, and the U.S. Probation Office supplemented that documentation with the transcript from Kinzy's plea hearing in state court.
At Kinzy's sentencing hearing, the district court concluded that the Louisiana statute forming the basis of Kinzy's predicate conviction was divisible and that the charging document showed that Kinzy's conviction qualified as a crime of violence. The district court also overruled Kinzy's objection to the four-level enhancement, finding that the PSR was accurate and reliable.
The district court sentenced Kinzy to 87 months of imprisonment and three years of supervised release. At the end of the hearing, the Government asked the court if it had considered the alternative guideline range suggested by Kinzy. The court responded:
Kinzy timely appealed. He argues that the district court erred by assigning him a base offense level of 20 under U.S.S.G. § 2K2.1(a)(4) on the basis that he had a prior felony conviction for a "crime of violence," and by imposing a four-level enhancement under U.S.S.G. § 2K2.1(b)(6)(B) for committing the offense in connection with another felony, i.e., threatening to shoot or kill the arresting officer.
We begin with the simpler of Kinzy's two challenges on appeal. Kinzy contests the district court's imposition of a four-point enhancement under U.S.S.G. § 2K2.1(b)(6)(B) for possessing a firearm in connection with another felony. Under § 2K2.1(b)(6)(B), a defendant's offense level is increased by four points if he "used or possessed any firearm or ammunition in connection with another felony offense." U.S.S.G. § 2K2.1(b)(6)(B). Kinzy's PSR recommended application of the enhancement because Kinzy "threatened to shoot and/or kill" the police officer during his arrest. Kinzy objected to the enhancement, denying that he made such a threat, and the district court overruled the objection and imposed the enhancement, finding the PSR sufficiently reliable and "supported by a proper investigation."
"In determining whether a Guidelines enhancement applies, the district court is allowed to draw reasonable inferences from the facts, and these inferences are fact findings reviewed for clear error." United States v. Coleman, 609 F.3d 699, 708 (5th Cir. 2010) (citing United States v. Caldwell, 448 F.3d 287, 290 (5th Cir. 2006)). A factual finding is not clearly erroneous "if it is plausible in light of the record as a whole." United States v. Zuniga, 720 F.3d 587, 590 (5th Cir. 2013) (per curiam) (citing United States v. Rodriguez, 630 F.3d 377, 380 (5th Cir. 2011)). A factual finding is clearly erroneous if the evidence as a whole leaves the reviewing court "with the definite and firm conviction that a mistake has been committed." Coleman, 609 F.3d at 708 (quoting United States v. Cooper, 274 F.3d 230, 238 (5th Cir. 2001)).
Kinzy disputes the facts of his offense and thus challenges the factual foundation for imposition of the enhancement.[2] "The proponent of an adjustment to the defendant's base offense level bears the burden of establishing the factual predicate 'by a preponderance of the relevant and sufficiently reliable evidence.'" United States v. Aguilar-Alonzo, 944 F.3d 544, 549 (5th Cir. 2019) (quoting United States v. Richardson, 781 F.3d 237, 249 (5th Cir. 2015)). Generally, a PSR's factual recitation "bears sufficient indicia of reliability to be considered as evidence by the sentencing judge in making factual determinations." United States v. Harris, 702 F.3d 226, 230 (5th Cir. 2012) (per curiam) (citation omitted). A district court may therefore "adopt the facts contained in a PSR without further inquiry if those facts have an adequate evidentiary basis with sufficient indicia of reliability and the defendant does not present rebuttal evidence or otherwise demonstrate that the information in the PSR is unreliable." Id. (cleaned up) (quoting United States v. Trujillo, 502 F.3d 353, 357 (5th Cir. 2007)). To rebut facts in a PSR that are supported by adequate evidence, a defendant must submit "evidence demonstrating that those facts are 'materially untrue, inaccurate or unreliable.'" Id. (quoting United States v. Huerta, 182 F.3d 361, 364-65 (5th Cir. 1999)). "Mere objections are generally insufficient," but an objection "may sufficiently alert the district court to questions regarding the reliability of the evidentiary basis for the facts contained in the PSR." United States v. Fields, 932 F.3d 316, 320 (5th Cir. 2019) (cleaned up) (quoting Harris, 702 F.3d at 230 &n.3).
Here, the PSR recommended the enhancement based on Kinzy's threat to shoot or kill the arresting officer, and Kinzy filed an objection, writing through counsel that he "denies ever threatening to shoot or kill any officer." Counsel continued:
[Kinzy] also denies reaching for the firearm at any time. To the contrary, he fully complied by stopping his vehicle, rolling his window or leaving his window rolled down, and reaching his hands out of his car window when instructed to do so. He pulled one arm back from the officer's tight grip but that was because he was attempting to get away from the firearm by opening his car door. He repeatedly asked the officers to let him...
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