United States v. Wilbert Knight, Jr. , 710 F. App'x 733 ( 2017 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS OCT 5 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 16-10404
Plaintiff-Appellee, D.C. No.
2:15-cr-00272-HDM-PAL-1
v.
WILBERT EARL KNIGHT, Jr., MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the District of Nevada
Howard D. McKibben, District Judge, Presiding
Submitted September 15, 2017**
San Francisco, California
Before: GOULD, TALLMAN, and WATFORD, Circuit Judges.
Wilbert Earl Knight appeals the district court’s sentence on his conviction
for being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1).
Knight asserts four arguments on appeal. First, he contends that his prior
conviction for Louisiana armed robbery was not a conviction for a crime of
*
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).
violence for purposes of U.S.S.G. §§ 2K2.1(a)(4)(A) and 4B1.2. Second, he
contends that the sentencing judge improperly based his sentence on rehabilitative
considerations. Third, he contends that the district court procedurally erred by not
first setting forth the sentencing guideline range before addressing the 18 U.S.C.
§ 3553(a) factors to be considered in imposing a sentence. Fourth, he contends
that the Government should have moved for and the district court should have
granted him a third point reduction for acceptance of responsibility. We affirm the
district court decision, except with respect to the third point for acceptance of
responsibility. On that issue, we vacate and remand for further proceedings
consistent with this disposition.
We hold that Louisiana armed robbery is a crime of violence for purposes of
U.S.S.G. §§ 2K2.1(a)(4)(A) and 4B1.2. In assessing whether Louisiana armed
robbery is a crime of violence, we apply the “categorical” approach laid out in
Taylor v. United States, 495 U.S. 575 (1990). Under that approach, we ask
whether the full range of conduct covered by the statute falls within the meaning of
the term “crime of violence” under the Sentencing Guidelines. United States v.
Grajeda, 581 F.3d 1186, 1189 (9th Cir. 2009).
The Louisiana criminal statute Knight violated defines armed robbery as
follows:
Armed robbery is the taking of anything of value belonging to another
from the person of another or that is in the immediate control of
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another, by use of force or intimidation, while armed with a dangerous
weapon.
La. Stat. Ann. § 14:64. Knight claims that Louisiana armed robbery is not a
categorical crime of violence, because “force or intimidation” under the Louisiana
statute need not involve the use, attempted use, or threatened use of physical
force—i.e. “force capable of causing physical pain or injury” as required by
Johnson v. United States, 559 U.S. 133 (2010).
The Louisiana courts interpreting the “force or intimidation” clause of the
robbery statute routinely note that the heightened penalty for robbery, as compared
to theft, serves to “emphasize the increased risk of danger to human life posed
when a theft is carried out in face of the victim’s opposition.”1 State v. Mason, 403
So.2d 701, 704 (La. 1981); State v. Jones, 767 So.2d 808, 810 (La. Ct. App. 2000);
State v. Florant, 602 So.2d 338, 341 (La. Ct. App. 1992); see also United States v.
Brown, 437 F.3d 450, 452 n.2 (5th Cir. 2006). Notably, the Florant court refused
to uphold a verdict for robbery when the defendant merely snatched a $20 bill and
walked away. Florant, 602 So.2d at 341. The court held that this was insufficient
force, noting that an “additional ‘use of force’ in overcoming the will or resistance
of the victim is necessary to distinguish the crime of robbery from the less serious
1
Robbery is identical to armed robbery except that the latter includes and the
former excludes a dangerous weapon element. Compare La. Rev. Stat. § 14:64
with id. § 14:65. Hence, any analysis of the force or intimidation clause of the
robbery statute applies equally to armed robbery.
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crime of theft.” Id. (quoting State v. LeBlanc, 506 So. 2d 1197, 1200 (La. 1987)).
These cases lead us to conclude that Louisiana armed robbery requires physical
force that satisfies the standard put forth in Johnson. The district court did not err
in finding that Knight’s prior conviction was for a crime of violence.
As for Knight’s second and third claims, no objection was made below, and
so we review those claims for plain error. See Johnson v. United States, 520 U.S.
461, 466-67 (1997) (noting that plain error is (a) error, (b) that is plain, (c) that
affects substantial rights and (d) that “seriously affects the fairness, integrity, or
public reputation of judicial proceedings.”). Reviewing the record we see no
reason to believe that the district court relied on impermissible rehabilitative
concerns in imposing the sentence. As such, there was no error at all, much less
plain error. The district court did note that Knight would receive education and
training during his period of incarceration. However, in context, there is no
indication that the district court lengthened Knight’s sentence for rehabilitative
reasons. Indeed, the district court explicitly found that the offense in question was
“very serious” and then imposed a sentence roughly midway between the top and
bottom of the guideline range.
As for Knight’s contention that the district court erred by not setting forth
the guideline range before allowing the parties to discuss the § 3553(a) factors, we
hold that this also was not plain error. There is no question that Knight was given
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sufficient opportunity to argue what sentence was appropriate—and indeed, he did.
The sentencing court sufficiently justified its rulings, explained its consideration of
the § 3553(a) factors, and concluded that “a substantial period of incarceration is
appropriate; particularly, considering the background of the defendant.” Knight
presents no valid or persuasive argument for thinking that his substantial rights
were affected by the order in which the sentencing proceeded. And, this alleged
error in form did not “seriously affect[] the fairness, integrity, or public reputation
of judicial proceedings.” See Johnson, 520 U.S. at 467.
Finally, Knight contends that his willingness to enter a guilty plea should
entitle him to a three-point reduction for acceptance of responsibility instead of the
two-point reduction he was granted.
Knight initially pled not guilty and requested to extend his trial date. He later
moved to suppress evidence. When the motion was denied, Knight requested
another extension. Knight later signed a plea agreement, further delaying the trial
date, but—at the change of plea proceeding—withdrew his plea agreement and
asked to plead guilty without it. At sentencing, the Government refused to move
for the third point on grounds that it had been forced to respond to a motion to
suppress. The district court apparently accepted this rationale, and no other
justification for refusing the point was offered or discussed.
We have held that a motion to suppress evidence “cannot be held against a
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defendant for purposes of the adjustment.” United States v. Vance, 62 F.3d 1152,
1157 (9th Cir. 1995); see also, United States v. Kimple, 27 F.3d 1409, 1414 (9th
Cir. 1994), as amended on denial of reh’g (Sept. 19, 1994) (holding that the
reduction should not be denied “on the basis that [the defendant] exercised his
constitutional rights at the pretrial stage of the proceedings” by filing a motion to
suppress). In addition, we have noted that the Government does not have
unbounded discretion to refuse to move for the third point; it can only refuse to do
so for the reasons articulated in section 3E1.1(b). United States v. Sahagun-
Gallegos, 782 F.3d 1094, 1097 (9th Cir. 2015). Those reasons are limited to when
failing to timely notify of an intention to enter a guilty plea either (1) did not allow
the government to avoid preparing for trial or (2) impeded the government’s or
court’s ability to allocate their resources efficiently. U.S.S.G. § 3E1.1(b).
In so far as the government refused to move for and the district court did not
grant the third point for acceptance of responsibility because of Knight’s motion to
suppress, the Government and the district court may have relied on impermissible
considerations. Yet, there were other facts in the record, such as delays, that may
have impeded the government’s trial preparation or allocation of resources, which
might have supported withholding the third point. However, the district court did
not explicitly make this finding. We therefore vacate and remand for resentencing.
In considering whether to move for and grant the third point, the Government and
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the district court should look only to the reasons set forth in U.S.S.G. § 3E1.1(b).
That is, the district court should assess whether any delay led the government to
prepare for trial, or required the government or the court to expend resources
inefficiently, over and above what was required to respond to the motion to
suppress.
AFFIRMED IN PART, VACATED AND REMANDED IN PART.
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