United States v. Mark Shipley ( 2019 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 17 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 18-10172
Plaintiff-Appellee, D.C. No.
4:16-cr-01061-DCB-JR-1
v.
MARK RYAN SHIPLEY, AKA Marc R. MEMORANDUM*
Shipley, AKA Marc Ryan Shipley,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Arizona
David C. Bury, District Judge, Presiding
Submitted June 13, 2019**
San Francisco, California
Before: GOULD and IKUTA, Circuit Judges, and PEARSON,*** District Judge.
Defendant Mark Shipley appeals his conviction and sentence for knowing
possession of a firearm as a convicted felon, in violation of 18 U.S.C. § 922(g)(1).
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Benita Y. Pearson, United States District Judge for the
Northern District of Ohio, sitting by designation.
We have jurisdiction under 28 U.S.C. § 1291 and we affirm.
1. Shipley contends that the district court erred by precluding his entrapment
by estoppel defense. We review de novo a district court’s decision to exclude
evidence of an entrapment by estoppel defense. United States v. Brebner, 951 F.2d
1017, 1024 (9th Cir. 1991). A court may preclude an entrapment by estoppel
defense when no rational view of the evidence supports the defense. Id.We conclude that Shipley timely notified the defense of his desire to bring
the defense. But we hold that the district court did not err because no rational view
of the evidence supports the defense in this case. See id. Shipley’s reliance on any
state order or official is insufficient; our precedent clearly requires “reliance either
on a federal government official empowered to render the claimed erroneous
advice, or on an authorized agent of the federal government.” Id. at 1027. Because
our precedent requires that the federal official “affirmatively” mislead the
defendant, the alleged behind-the-scenes participation by a federal official in
Shipley’s concealed carry permitting process does not suffice. See United States v.
Ramirez-Valencia, 202 F.3d 1106, 1109 (9th Cir. 2000).
2. Shipley contends that the district court erred in denying his motion to
suppress items found at a residence. We review the denial de novo, United States
v. Gorman, 314 F.3d 1105, 1110 (9th Cir. 2002), and we review the district court’s
underlying factual findings for clear error, United States v. Martinez-Garcia, 397
2
F.3d 1205, 1213 n.5 (9th Cir. 2005) (citing Franks v. Delaware, 438 U.S. 154,
155–56 (1978)).
The warrant established probable cause to believe that evidence of Shipley’s
firearm possession would be located in the residence on the day it was searched.
Among other supporting evidence, state and federal officials saw Shipley with a
firearm on several occasions; federal agents observed a person similar in
appearance to Shipley, with a car similar to Shipley’s, at the residence the day
before the search; and the day of the search, Shipley told federal agents that he
kept a firearm at the residence. See United States v. DeLeon, 979 F.2d 761, 764
(9th Cir. 1992) (citing Illinois v. Gates, 462 U.S. 213, 238 (1983)).
Even if the serial numbers of the Sig Sauer 556 and Glock .40 guns were struck
from the warrant, the remaining information in the warrant was sufficient to
establish probable cause that Shipley kept firearms at the residence, and was
“specific enough to enable the person conducting the search reasonably to identify
the things authorized to be seized.” United States v. Spilotro, 800 F.2d 959, 963
(9th Cir. 1986). Nor was the information in the warrant regarding guns at the
residence stale, given that guns, “unlike drugs, are durable goods useful to their
owners for long periods of time.” See United States v. Collins, 61 F.3d 1379, 1384
(9th Cir. 1995) (quoting United States v. Singer, 943 F.2d 758, 763 (7th Cir.
1991)). Lastly, Shipley did not establish that the warrant affiant knowingly or
3
recklessly included a reference to a gun that had already been recovered. See
United States v. Smith, 588 F.2d 737, 740 (9th Cir. 1978).
3. Shipley argues that the enhancements for a Large Magazine (U.S.S.G. §
2K2.1(a)(4)(B)) and 8–24 Firearms (U.S.S.G. § 2K2.1(b)(6)(B)) should not apply
because the large magazine and firearms were seized in the illegal search. We
reject this argument because we conclude, for reasons discussed above, that the
search was not illegal.
4. Shipley argues that the obstruction of justice enhancement, U.S.S.G. §
3C1.1, should not apply because his conduct did not materially hinder or actually
impede the investigation. We review a district court’s interpretation of the
Sentencing Guidelines de novo, and its factual findings for clear error. United
States v. Mix, 457 F.3d 906, 911 (9th Cir. 2006).
Where the obstructive conduct occurs contemporaneously with arrest, the
enhancement applies only where the obstruction “result[ed] in a material hindrance
to the official investigation.” U.S.S.G. § 3C1.1 cmt. 4(D). Similarly, if the
obstructive conduct is “providing a materially false statement to a law enforcement
officer,” the adjustment is not warranted unless the statement “significantly
obstructed or impeded the official investigation or prosecution.” U.S.S.G. § 3C1.1.
cmt. 4(G); United States v. McNally, 159 F.3d 1215, 1217 (9th Cir. 1998).
However, where the conduct underlying the enhancement is “directing . . . another
4
person to . . . conceal evidence that is material to an official investigation . . . or
attempting to do so,” material hindrance or actual impediment is not required.
U.S.S.G. § 3C1.1 cmt. 4(D).
Here, the district court found “clear evidence of an obstruction of justice in
this case, particularly in the request made by the defendant [to] his wife to secrete
or hide or get rid of the firearm that was at the premises.” The material hindrance
or actual impediment requirements do not apply to that type of obstructive
conduct; the district court did not err in applying the enhancement.
We affirm Shipley’s conviction and sentence.
AFFIRMED.
5