United States v. Kemp , 705 F. App'x 741 ( 2017 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT August 24, 2017
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 15-3309
(D.C. No. 2:14-CR-20131-CM-TJJ-1)
CHRISTOPHER R. KEMP, (D. Kan.)
Defendant - Appellant.
ORDER AND JUDGMENT*
Before TYMKOVICH, Chief Judge, McKAY and BALDOCK, Circuit Judges.
_________________________________
Defendant Christopher Kemp pled guilty to escaping from custody in violation of
18 U.S.C. § 751. While (re)incarcerated and awaiting sentencing, Defendant assaulted a
correctional officer with a makeshift knife. Because of this assault, the sentencing court
denied Defendant’s request for an acceptance-of-responsibility reduction under U.S.
Sentencing Guidelines § 3E1.1. On appeal, Defendant challenges this denial, arguing
that the court committed reversible error because it considered postconviction,
presentencing criminal conduct, i.e., assaulting a correctional officer, which was
“unrelated” to the offense of conviction, i.e., escaping from custody. Defendant also
raises two issues related to his supervised release conditions.
*
This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
First, we address the district court’s denial of Defendant’s request for a reduction
for acceptance of responsibility. Under § 3E1.1(a) of the Sentencing Guidelines, district
courts should decrease a defendant’s offense level “[i]f the defendant clearly
demonstrates acceptance of responsibility for his offense.” The Application Notes
provide that courts may consider, among other factors, a defendant’s “voluntary
termination or withdrawal from criminal conduct or associations” in determining whether
the defendant has accepted responsibility. U.S.S.G. § 3E1.1(a), cmt. n.1(B).
“The guidelines do not, however, qualify that factor to permit consideration of
only criminal conduct related to or of the same nature as the offense of conviction.”
United States v. Prince, 204 F.3d 1021, 1023 (10th Cir. 2000) (affirming the denial of an
acceptance-of-responsibility reduction because the defendant stabbed another prisoner
while awaiting sentencing). To the contrary, “the guidelines do not prohibit a sentencing
court from considering, in its discretion, criminal conduct unrelated to the offense of
conviction in determining whether a defendant qualifies for an adjustment for acceptance
of responsibility under § 3E1.1.” Id. at 1024; see also United States v. Jordan, 549 F.3d
57, 61 (1st Cir. 2008) (“Criminal conduct, whatever its nature, is a powerful indicium of
a lack of contrition. Thus, we hold that a district court, in determining the propriety vel
non of an acceptance-of-responsibility credit, may consider a defendant’s commission of
any post-indictment criminal conduct, whether or not it bears a significant connection to,
or constitutes a significant continuation of, the offense of conviction.”); United States v.
Mara, 523 F.3d 1036, 1038 (9th Cir. 2008) (“That a defendant’s continuing criminal
conduct is different in nature, character, or degree from the offense of conviction does not
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undermine the fact that it is inconsistent with acceptance of responsibility.”). Therefore,
the district court did not err by considering the postconviction, presentencing assault on a
correctional officer. Because Prince controls, we affirm the district court’s denial of
Defendant’s request for a reduction for acceptance of responsibility. Insofar as
Defendant challenges the correctness of the holding in Prince, “[o]ne panel of this court
cannot overrule the judgment of another panel absent en banc consideration or an
intervening Supreme Court decision that is contrary to or invalidates our previous
analysis.” United States v. White, 782 F.3d 1118, 1126–27 (10th Cir. 2015). There has
been no such intervening authority.
Next, Defendant argues that the district court erred when it authorized warrantless
searches as a condition of his supervised release because, Defendant asserts, he is not
required to register as a sex offender. This, too, is squarely foreclosed by precedent.
United States v. Flaugher, 805 F.3d 1249, 1251 (10th Cir. 2015) (rejecting the same
challenge to the warrantless-search condition advanced by Defendant), cert. denied, 137
S. Ct. 35 (2016). Defendant acknowledges as much. (See Appellant’s Opening Brief
at 28.) Because Flaugher controls, we affirm the district court’s decision to impose a
warrantless-search condition as part of Defendant’s supervised release.
Finally, Defendant argues that his supervised release conditions should be
modified to reflect the District of Kansas’s standard conditions of supervised release.
The District of Kansas had adopted a standing order which provides that all criminal
defendants placed on supervised release by any judge of the District of Kansas shall
comply with fourteen enumerated conditions of supervised release. At sentencing, the
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court ordered Mr. Kemp to “comply with the standard conditions that have been adopted
by this court.” (R. Vol. 2 at 48.) Subsequently, however, the court entered a written
judgment with thirteen “standard conditions” of supervised release, which were not quite
the same as the conditions listed on the District’s standing order, though the discrepancies
are minor.
Since filing this appeal, Defendant has been convicted of possession of
contraband—i.e., the makeshift knife Defendant used to assault a correctional officer—in
prison, in violation of 18 U.S.C. § 1791(a). He has appealed that conviction. In this
subsequent case, the court imposed a different set of conditions of supervised release.
This set tracks the District of Kansas’s current standing order. Unless his conviction for
possession of contraband in prison is reversed on appeal, Defendant will serve the two
terms of supervision concurrently, and, both parties agree, the more recently imposed
conditions of supervised release will control. Defendant requests, however, that the
conditions of supervised release in this case be modified to mirror the current standard
conditions, as imposed in his most recent conviction. This way, if his recent conviction is
affirmed, there will be no confusion as to which set of conditions he must follow. If his
recent conviction is reversed, then he will still only need to comply with the court’s
standard conditions and not the differently worded conditions that the court included in
its written judgment without announcing them orally at sentencing in this case. Given the
confusion that court’s written judgment has already created, we agree that such
clarification would be appropriate. We REMAND to the district court to modify
Defendant’s supervised release conditions in case number 2:14-cr-20131-CM-1 to reflect
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the District of Kansas’s current standard conditions as set forth in Standing Order
No. 16-2, unless there is good cause to deviate from the standing order.
Entered for the Court
Monroe G. McKay
Circuit Judge
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