United States v. Richards

• Docket Number: 21-10190
• Decision Date: 31 October 2022
• Citation: 52 F.4th 879
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. James RICHARDS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

52 F.4th 879

UNITED STATES of America, Plaintiff-Appellee,

v.James RICHARDS, Defendant-Appellant.

No. 21-10190

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 17, 2022 San Francisco, California

Filed October 31, 2022

Thomas G. Sprankling (argued) and Mark D. Flanagan, Wilmer Cutler Pickering Hale and Dorr LLP, Palo Alto, California; Thomas B. Davidson, Wilmer Cutler Pickering Hale and Dorr LLP, San Francisco, California; for Defendant-Appellant.

Anne C. Hsieh (argued) and Thomas Green, Assistant United States Attorneys; Matthew M. Yelovich, Appellate Section Chief, Criminal Division; Stephanie M. Hinds, United States Attorney; United States Attorney's Office; for Plaintiff-Appellee.

Before: Jay S. Bybee, Consuelo M. Callahan, and Daniel P. Collins, Circuit Judges.

CALLAHAN, Circuit Judge:

James Richards appeals from the imposition of consecutive 24-month sentences for violating the conditions of his supervised release for possession of two guns and ammunition. He argues that the consecutive sentences: violate his rights under the Fifth and Sixth Amendments as explained in United States v. Haymond , ––– U.S. ––––, 139 S. Ct. 2369, 204 L.Ed.2d 897 (2019) ; violate his rights under the Double Jeopardy Clause; and are not supported by sufficient evidence. Although well presented by counsel, Richards' arguments on appeal are not persuasive.

I

In 2007, Richards was arrested for possession of crack cocaine and a gun. He pled guilty to Count One, possession with intent to distribute crack cocaine, and Count Three, possessing a firearm in furtherance of a drug-trafficking crime. He was sentenced to 106 months of incarceration. Richards was released from prison in June 2016 and placed under supervised release. In June 2017, the terms of his supervised release were modified to account for his substance and alcohol abuse issues. In September 2018, Richards' supervised release was revoked because of his failure to properly communicate with his probation officer and for driving a motorcycle on a suspended license. He was sentenced to two months in custody, an additional 58 months of supervised release, directed to reside in a half-way house for 10 months, and placed on GPS monitoring for the first 150 days of his residence at the half-way house. In February 2019, Richards left the half-way house without permission, for which the district court imposed additional GPS monitoring and required Richards to abstain from alcohol.

On March 6, 2020, a Petition for Warrant for Person Under Supervision was filed charging Richards with calling "several witnesses, including a girlfriend, via a mobile video connection, threaten[ing] to kill them, and show[ing] a black handgun."

This appeal arises out of Richards' actions two days later, on March 8, 2020. At an evidentiary hearing concerning Richards' alleged violations of supervised release, a witness (Ms. Jones) testified that, while driving on Interstate 580, she drove past a white pickup truck with wooden boards on its side and the driver pointed a gun at her. She sped up to get away from the truck, but later while she was trying to stay away from the truck, she saw it speed up, move from the left lane over to the right lane of the freeway, and exit on a ramp. She then saw the driver of the truck throw something out the window, which she presumed was the gun. Ms. Jones then called 911, told them what she had seen, and indicated where the gun had been thrown.

In response to the 911 call, an officer went to the area that Ms. Jones had identified, but before he was able to locate the gun, he received a report "of a wrong-way driver on northbound 880 Market Street offramp heading south in the northbound direction of traffic." He immediately drove to that location and saw a white pickup truck parked and facing southbound on the northbound side of the highway, near the center median. The officer observed a man standing in the bed of the truck, throwing miscellaneous objects out of the truck. The individual turned out to be James Richards. Richards appeared disheveled and was making erratic statements. He got inside the cab and attempted to leave, but the officer was able to extract and subdue him. Officers then found a Taurus .40 caliber handgun lying near the center median where the truck had been stopped. The firearm was loaded with a single round in the chamber with approximately four rounds in the magazine and was free of dust, debris, and moisture.

About an hour after her 911 call, Ms. Jones spoke to the same officer and described to him where she thought the driver had tossed the gun. The officer searched the area and found a firearm, a Glock 17, with one round in the chamber and approximately sixteen rounds of ammunition in its high-capacity magazine. The officer testified that when he found the gun it was clean: "there was no dust or debris on it or any kind of elements on it." Ms. Jones subsequently identified Richards as the person who pointed a gun at her and who later discarded what she believed was the gun as he exited the highway.

On March 17, 2020, the government filed an Amended Petition for Warrant for Person Under Supervision asserting six charges. Charge 1 alleged that Richards had violated California law by making criminal threats against an ex-girlfriend and her friends. Charge 2 alleged that Richards' behavior on the freeway violated California law prohibiting carrying and brandishing a loaded firearm, resisting arrest, driving the wrong way on a freeway, and assaulting a police officer. Charge 3 alleged that Richards violated the condition of his supervised release that he not possess a firearm, and Charge 4 alleged that he violated the condition of his supervised release that he not possess ammunition.

Charges 5 and 6 alleged that Richards had violated conditions of his release requiring him to participate in a program of testing and treatment for drug abuse and to participate in mental health counseling.

Richards admitted to the allegations in Charges 5 and 6 but contested the other charges. The district court held that much of the government's proffered evidence for Charge 1 was inadmissible hearsay and that Charge 1 was not proved.

After a two-day evidentiary hearing the district court found that the charges of possession of a firearm and possession of ammunition had "been amply proved by a preponderance of the evidence." The district court explained:

I find that at a minimum, charges three and four, possession of a firearm and possession of ammunition, have been amply proved by a preponderance of the evidence. There's a credible witness that saw the defendant throw a gun out the window of his truck, it was recovered from where she said it would be recovered.

There was a second firearm that was recovered when he drove the wrong way on the off ramp on 880, and I find that it is amply proven by a preponderance that the defendant committed these two violations.

With the court sustaining Charges 3 and 4, the government agreed to the dismissal of Charge 2.

The finding that Richards possessed a firearm triggered 18 U.S.C. § 3583(g)(2), which mandates revocation of supervised release and a term of imprisonment pursuant to § 3583(e)(3), where the defendant "violates a condition of supervised release prohibiting the defendant from possessing a firearm." Based on all six charged supervised release violations, the probation officer had recommended a total sentence of 48 months imprisonment, consisting of a 24-month sentence on Count One of the underlying original counts of conviction and a concurrent sentence of 48 months on Count Three of the underlying counts of conviction. But after the district court rejected Charge 1 of the supervised release violations, the probation office recommended concurrent sentences of 24 months on each underlying count of conviction. Nonetheless, the district court imposed a sentence of 48 months, consisting of 24 months on each count to run consecutively. The district court entered judgment on June 24, 2021, and Richards filed a timely notice of appeal.

II

Richards argues that 18 U.S.C. § 3583(g)'s requirement that a judge impose a term of imprisonment based on conduct that constitutes a federal crime violates the Fifth and Sixth Amendments. He contends that "the district court erred by failing to require the government to prove that [he] possessed a firearm beyond a reasonable doubt in front of a jury of his peers." In essence, Richards invites us to adopt the perspective of the plurality in Haymond , 139 S. Ct. 2369, and hold that a "jury find beyond a reasonable doubt every fact" in order for him to be found to have possessed a firearm or ammunition in violation of the conditions of his supervised release. He asserts that the constitutional rights recognized in Apprendi v. New Jersey ¸ 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Alleyne v. United States , 570 U.S. 99, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013), should apply to his proceedings. See Haymond , 139 S. Ct. at 2381.

Putting aside the question of whether the plurality opinion in Haymond is as broad as Richards asserts,¹ Richards recognizes that Justice Breyer's concurring opinion represents the narrowest ground supporting the Court's ruling and is controlling. See United States v. Henderson , 998 F.3d 1071, 1076 (9th Cir. 2021) ("Justice Breyer's separate concurrence in the judgment is therefore controlling."). Justice Breyer offered three grounds for agreeing with the plurality that 18 U.S.C. § 3583(k) was "less like ordinary revocation and more like punishment for a new offense, to which the jury right would typically attach." Haymond , 139 S. Ct. at 2386 (Breyer, J., concurring). The three grounds were that § 3583(k) : (1) "applies only when a defendant commits a discrete set of federal criminal offenses specified in the statute"; (2) "takes away the judge's discretion to decide whether violation of a condition of supervised release should result in...