United States v. Prien-Pinto

• Decision Date: 12 March 2019
• Docket Number: No. 18-30055,18-30055
• Citation: 917 F.3d 1155
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. David PRIEN-PINTO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

917 F.3d 1155

UNITED STATES of America, Plaintiff-Appellee,

v.David PRIEN-PINTO, Defendant-Appellant.

No. 18-30055

United States Court of Appeals, Ninth Circuit.

Submitted December 7, 2018^* Seattle, Washington

Filed March 12, 2019

John Rhodes, Assistant Federal Defender; Anthony R. Gallagher, Federal Defender; Federal Defenders of Montana, Missoula, Montana; for Defendant-Appellant.

Timothy A. Tatarka, Assistant United States Attorney; Kurt G. Alme, United States Attorney; United States Attorney's Office, Billings, Montana; for Plaintiff-Appellee.

Before: William A. Fletcher and Jay S. Bybee, Circuit Judges, and Larry A. Burns,^** District Judge.

BYBEE, Circuit Judge:

We are asked to review the vitality of our 1993 holding that the Sentencing Guidelines may constitutionally impose a strict-liability enhancement where a defendant committed a crime with a stolen firearm. See United States v. Goodell , 990 F.2d 497 (9th Cir. 1993). Since that time, the Supreme Court has issued a number of opinions recasting the role the Guidelines play in a district court's sentencing decision. We conclude that none of these decisions affect Goodell . In holding once more that the strict-liability enhancement of § 2K2.1(b)(4) of the Sentencing Guidelines is constitutional, we join all ten of the other regional circuit courts.

I

David Prien-Pinto was convicted in Montana state court in 2014 of felony assault on a peace officer and burglary and sentenced to a term in state prison. He was released on parole in March 2016. After his release, a confidential source alerted a joint task force of federal and local law enforcement officers that Prien-Pinto was selling narcotics out of his home in Missoula. In September 2016, officers raided the home and arrested Prien-Pinto on marijuana and methamphetamine charges. Shortly after, Prien-Pinto's wife reported to local police that she had hidden a Taurus Model 94 .22 caliber revolver ("the firearm") at Prien-Pinto's instruction. Prien-Pinto admitted to possessing the firearm and told police that a friend had given him the firearm as payment for a marijuana debt.

Police traced the firearm's serial number and determined that it had been stolen the previous summer from its owner in Kalispell, about 120 miles north of Missoula. The owner identified the firearm and told police it had been taken from the glove compartment of his vehicle during a break-in. The owner denied knowing Prien-Pinto.

Montana authorities held Prien-Pinto on a parole violation. He has remained in state custody since his arrest, serving a prison sentence on various state charges. In August 2017, a federal grand jury indicted Prien-Pinto on one count of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). He pleaded guilty, without a plea agreement, in November 2017.

The district court sentenced Prien-Pinto to 36 months' imprisonment: 18 months to be served concurrently to his Montana state sentence, and 18 months to be served consecutively in federal custody. In calculating Prien-Pinto's Guidelines offense level, the district court applied a two-level enhancement pursuant to U.S.S.G. § 2K2.1(b)(4) because Prien-Pinto's crime involved a stolen firearm. Prien-Pinto objected to this enhancement, arguing that nothing in the record suggested he knew the firearm was stolen and that application of the enhancement without a mens rea would violate his Fifth Amendment rights, or alternatively, the federal statutes criminalizing possession of a stolen firearm. The district court noted that "the facts are pretty compelling that Mr. Prien-Pinto did not have any knowledge that this firearm had been stolen." However, it held that Application Note 8(B) in the Commentary following § 2K2.1(b)(4) —which provides that the enhancement applies "regardless of whether the defendant knew or had reason to believe that the firearm was stolen"—was "not ambiguous." It thus applied the enhancement but invited us, on the record, to review the constitutionality of § 2K2.1(b)(4) and the Application Note.

II

The constitutionality of U.S.S.G. § 2K2.1(b)(4)'s strict-liability enhancement is the only issue before us on appeal. We review a claim that the Sentencing Guidelines are unconstitutional de novo. United States v. Padilla-Diaz , 862 F.3d 856, 860 (9th Cir. 2017).

A

All sentencing proceedings begin with the district court's calculations of the applicable Guidelines range. See Gall v. United States , 552 U.S. 38, 49, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). Section 2K2.1 provides the offense levels for crimes like Prien-Pinto's, which involve unlawful receipt, possession, or transportation of firearms. Paragraph (b) provides a number of enhancements that increase the base offense level for firearm crimes, including this provision in subparagraph (4): "If any firearm (A) was stolen, increase by 2 levels; or (B) had an altered or obliterated serial number, increase by 4 levels." U.S.S.G. § 2K2.1(b)(4). In the Commentary section following § 2K2.1, Application Note 8(B) provides: "Knowledge or Reason to Believe.—Subsection (b)(4) applies regardless of whether the defendant knew or had reason to believe that the firearm was stolen or had an altered or obliterated serial number." U.S.S.G § 2K2.1, App. Note 8(B). In other words, this Application Note directs courts to apply § 2K2.1(b)(4)'s enhancements on a strict liability basis and not to read a mens rea requirement into the text of the provision.

Application Notes are not formally part of the Guidelines, but serve to "interpret[ ]" and "explain[ ]" the Guidelines for district courts. Stinson v. United States , 508 U.S. 36, 38, 113 S.Ct. 1913, 123 L.Ed.2d 598 (1993). Like the Guidelines themselves, the Application Notes are drafted by the Sentencing Commission and may be revised annually. See id. at 41, 45, 113 S.Ct. 1913. However, Congress lacks the power to modify or disapprove of Application Notes, as it may Guidelines. Id. at 40, 113 S.Ct. 1913. The Supreme Court told us in Stinson that an Application Note "that interprets or explains a guideline is authoritative unless it violates the Constitution or a federal statute, or is inconsistent with, or a plainly erroneous reading of, that guideline." Id. ; see also id. at 42–43, 113 S.Ct. 1913 ("Commentary which functions to interpret a guideline or explain how it is to be applied controls, and if failure to follow, or a misreading of, such commentary results in a sentence selected from the wrong guideline range, that sentence would constitute an incorrect application of the sentencing guidelines." (internal citations, punctuation, and alterations omitted)). The Court also analogized the Sentencing Commission's use of Application Notes to an agency's interpretation of its own legislative rules, and thus directed courts to apply Application Notes with the same force as other such interpretations. Id. at 44–45, 113 S.Ct. 1913. Thus, we ascribe somewhat less legal weight to the Application Notes than to the Guidelines proper: if the Guideline and Application Note are inconsistent, the Guideline prevails. See id. at 38, 113 S.Ct. 1913.

After publishing Stinson in 1993, the Supreme Court issued a series of opinions that have dramatically altered the role the Guidelines play in sentencing. Most significantly, the Court struck down the federal sentencing statute making the Guidelines mandatory, finding it inconsistent with the Sixth Amendment. United States v. Booker , 543 U.S. 220, 245, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). However, we and the Supreme Court have continued to apply the holding of Stinson in the years following Booker . See, e.g. , Freeman v. United States , 564 U.S. 522, 529, 131 S.Ct. 2685, 180 L.Ed.2d 519 (2011) (citing Stinson , 508 U.S. at 38, 113 S.Ct. 1913 ) ("Guidelines commentary is authoritative[.]"); United States v. Thornton , 444 F.3d 1163, 1165 n.3 (9th Cir. 2006) ("[C]ommentary in the Guidelines Manual that interprets or explains a guideline is authoritative unless it violates the Constitution or a federal statute, or is inconsistent with, or a plainly erroneous reading of, that guideline." (internal quotation marks omitted)). We thus follow Stinson in considering whether the district court properly applied § 2K2.1(b)(4) and Application Note 8(B) when calculating Prien-Pinto's sentence.

B

We considered and rejected a Fifth Amendment due process challenge to the lack of a mens rea requirement in § 2K2.1(b)'s enhancement for a stolen firearm in Goodell . At that time, the stolen-firearm enhancement was codified at § 2K2.1(b)(2), and the Sentencing Commission had not yet drafted Application Note 8(B), which first appeared in the Guidelines in 2007. Compare U.S.S.G. § 2K2.1 (1990)with U.S.S.G. § 2K2.1 (2007).

Working without the "authoritative," Stinson , 508 U.S. at 38, 113 S.Ct. 1913, weight of this Application Note, we reached the result it now prescribes through sound construction of the Guidelines. We first scrutinized "[t]he plain language" of § 2K2.1(b) and found that it "does not require [a mens rea.]" Goodell , 990 F.2d at 498. Second, we examined the drafting history to determine whether the Guideline's text was a "deliberate" exception to the "rule of ... Anglo-American criminal jurisprudence" that a penalty requires a mens rea. See id. at 498–99. Our review found that the Sentencing Commission "promulgated [the enhancement] on the premise that ‘stolen firearms are used disproportionately in the commission of crimes.’ " Id. at 499 (quoting United States v. Mobley , 956 F.2d 450, 454 (3d Cir. 1992) ). Because the Fifth Amendment permits a regulatory statute in the interest of public safety to provide for criminal liability in the absence of mens rea, United States v. Freed , 401 U.S. 601, 607–09, 91 S.Ct. 1112, 28 L.Ed.2d 356 (1971), and because an enhancement for possession of a stolen firearm is rationally related to the goal of crime prevention, Goodell , 990 F.2d at 499 (citing Mobley , 956 F.2d at 454 ) (noting...