United States v. Peterson, 090418 FED9, 17-30084
| Opinion Judge | RAYES, DISTRICT JUDGE |
| Party Name | United States of America, Plaintiff-Appellee, v. Kevin Terrell Peterson, Defendant-Appellant. |
| Attorney | Jesse Cantor (argued) and Ann K. Wagner, Assistant Federal Public Defenders; Office of the Federal Public Defender, Seattle, Washington; for Defendant-Appellant. Charlene Koski (argued), Assistant United States Attorney; Annette L. Hayes, United States Attorney; United States Attorney's Office, S... |
| Judge Panel | Before: Milan D. Smith, Jr., and Paul J. Watford, Circuit Judges, and Douglas L. Rayes, District Judge. |
| Case Date | September 04, 2018 |
| Court | United States Courts of Appeals, U.S. Court of Appeals — Ninth Circuit |
Argued and Submitted June 15, 2018 Seattle, Washington
Appeal from the United States District Court Western District of Washington D.C. No. 2:16-cr-00150-RSL-1 Robert S. Lasnik, Senior District Judge, Presiding
Jesse Cantor (argued) and Ann K. Wagner, Assistant Federal Public Defenders; Office of the Federal Public Defender, Seattle, Washington; for Defendant-Appellant.
Charlene Koski (argued), Assistant United States Attorney; Annette L. Hayes, United States Attorney; United States Attorney's Office, Seattle, Washington; for Plaintiff-Appellee.
Before: Milan D. Smith, Jr., and Paul J. Watford, Circuit Judges, and Douglas L. Rayes, [*] District Judge.
SUMMARY[**]
Criminal Law
The panel affirmed the district court's denial of a motion to suppress, vacated a sentence, and remanded for resentencing in a case in which the defendant was convicted for being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1).
The panel held that in denying the defendant's motion to suppress the handgun found in his backpack, the district court properly concluded that the handgun inevitably would have been discovered in an inventory search at the time of booking. The panel wrote that had the officers arrested the defendant only on misdemeanor warrants, and had they complied with Revised Code of Washington § 10.31.030, the defendant would have been able to post bail, thereby avoiding the booking and inventory search altogether. But because the officers would have booked the defendant on obstruction or resisting arrest charges absent discovery of the gun, and because bail had not yet been set on those charges, the defendant would have been taken into custody upon booking, and his possessions would have been inventoried at that time.
The panel held that the district court erred in treating the defendant's first-degree robbery conviction under Revised Code of Washington § 9A.56.190 as a crime of violence under U.S.S.G. §§ 2K2.1(a)(2) and 4B1.2. The panel rejected the government's argument that Washington first-degree robbery is a categorical match for the offenses of robbery and extortion enumerated in § 4B1.2(a)(2). The panel explained that because Washington robbery encompasses threats to property, it does not fall categorically within generic robbery; and that under a definition of "extortion" added to § 4B1.2's commentary in 2016, Washington's robbery statute is not a categorical match because it allows for a conviction to rest on fear of injury to property alone.
The panel held that the district court did not abuse its discretion in applying a two-level enhancement for reckless endangerment during flight under U.S.S.G. § 3C1.2 because the defendant's actions reasonably can be construed as being "in preparation of flight," and because these actions reasonably could be viewed as presenting a substantial risk of harm to the officers and others on the interstate.
OPINION
RAYES, DISTRICT JUDGE
Defendant-Appellant Kevin Peterson appeals the district court's denial of his motion to suppress the handgun found in his backpack. The district court concluded that the evidence inevitably would have been discovered in an inventory search. We affirm the order.
Peterson also challenges his sentence of 48 months' imprisonment imposed for being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). The district court concluded that Peterson's prior conviction for first-degree robbery was a "crime of violence" as that term is defined by U.S. Sentencing Guidelines ("Sentencing Guidelines" or "U.S.S.G.") section 4B1.2(a) which, along with a prior controlled substance offense, increased his base offense level to 24 under U.S.S.G. section 2K2.1(a)(2). The district court also concluded that his conduct warranted a two-level enhancement under U.S.S.G. section 3C1.2 for reckless endangerment during flight. Finding that Peterson's prior conviction for first-degree robbery was not a "crime of violence," we affirm in part and reverse in part. Accordingly, Peterson's sentence is vacated, and this matter remanded for resentencing.
I. Background
On August 14, 2015, King County police officers arrested Peterson on outstanding warrants. At the time of the arrest, the arresting officer instructed Peterson to remove his backpack so that he could be handcuffed. The officer waited to search the backpack until after he had handcuffed and secured Peterson in the back of the patrol car. Upon opening the backpack, the officer discovered a handgun, which officers on the scene soon determined was stolen. The officers informed Peterson of additional charges for possession of the firearm, and then transported him to King County Jail, where Peterson was booked on charges of unlawful possession of a firearm and possession of a stolen firearm, both felony offenses.
After indictment for being a felon in possession of a firearm, Peterson filed a motion to suppress evidence of the handgun discovered in his backpack. The district court denied the motion, finding that the gun inevitably would have been discovered during an inventory search of the backpack during Peterson's booking.
On January 19, 2017, at the close of a stipulated-facts bench trial, the district court found Peterson guilty of being a felon in possession of a firearm. Before sentencing, the United States Probation Office submitted a Presentence Report and a Sentencing Recommendation. The Probation Officer's calculation of Peterson's base offense level incorporated, among other things, a finding that Peterson's prior Washington state felony conviction for first-degree robbery constituted a crime of violence under the Guidelines, and a two-level enhancement for reckless endangerment during flight.
Peterson objected to the sentencing recommendations, but the district court overruled his objections and applied the recommended base offense level. Peterson timely appealed the district court's denial of his motion to suppress and its application of sentencing enhancements under sections 2K2.1(a)(2) and 3C1.2.
II. Discussion
Peterson raises several arguments on appeal. First, he claims that the district court erred in denying his motion to suppress because the inevitable discovery exception to the exclusionary rule is inapplicable. Second, Peterson challenges his sentence, arguing that the district court improperly found his first-degree robbery conviction constituted a crime of violence under sections 2K2.1(a)(2) and 4B1.2, and in applying a two-level enhancement for reckless endangerment during flight under section 3C1.2. We address each of these claims in turn.
A. Motion to Suppress
"We review de novo motions to suppress, and any factual findings made at the suppression hearing for clear error." United States v. Negrete-Gonzales, 966 F.2d 1277, 1282 (9th Cir. 1992). "[I]nevitable discovery rulings are mixed questions [of law and fact] that . . . should be reviewed under a clearly erroneous standard." United States v. Lang, 149 F.3d 1044, 1047 (9th Cir. 1998).
The exclusionary rule allows courts to suppress evidence obtained as a result of an unconstitutional search or seizure. Mapp v. Ohio, 367 U.S. 643, 655-66 (1961). The exclusionary rule does not apply, however, if the government establishes by a preponderance of the evidence that the unlawfully obtained information "ultimately or inevitably would have been discovered by lawful means[.]" Nix v. Williams, 467 U.S. 431, 444 (1984); see also United States v. Andrade, 784 F.2d 1431, 1433 (9th Cir. 1986) (holding that potentially unconstitutional search incident to arrest did not warrant application of the exclusionary rule because police would have found the evidence while taking inventory of the defendant's belongings during booking).
Here, the district court found that, under the circumstances, the warrantless search of Peterson's backpack was not justified as a search incident to arrest, but that the evidence nonetheless was not subject to exclusion because it inevitably would have been discovered during an inventory search at the time of booking. Specifically, the district court found that "even if the deputies had not searched [Peterson's] backpack, they would have had cause to book him for something more serious than the warrants: obstructing a law enforcement officer or resisting arrest . . . ."
On appeal, the government contends that the handgun discovered in Peterson's backpack inevitably would have been discovered during the inventory search, but also argues the search was a...
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