United States v. Jacob Kanatzar ( 2004 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 03-3376
___________
United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the Western
* District of Missouri.
Jacob A. Kanatzar, *
*
Appellant. *
___________
Submitted: January 13, 2004
Filed: June 7, 2004
___________
Before WOLLMAN, RICHARD S. ARNOLD, MORRIS SHEPPARD ARNOLD,
Circuit Judges.
___________
MORRIS SHEPPARD ARNOLD, Circuit Judge.
After the district court1 denied his motion to suppress evidence obtained during
an inventory search of the vehicle that he was driving, Jacob Kanatzar conditionally
pleaded guilty to being a felon in possession of a firearm, see 18 U.S.C. §§ 922(g)(1),
924(a)(2). The district court sentenced Mr. Kanatzar to 90 months in prison, and he
appeals the denial of his suppression motion and his sentence. We affirm.
1
The Honorable Fernando J. Gaitan, Jr., United States District Judge for the
Western District of Missouri.
I.
Mr. Kanatzar contends that his fourth amendment right to be free from
unreasonable searches was violated when the police impounded a vehicle that he was
driving and conducted an inventory search. We review the district court's factual
findings for clear error and its conclusion that the police did not violate
Mr. Kanatzar's fourth amendment rights de novo. See United States v. Wells,
347 F.3d 280, 286-87 (8th Cir. 2003).
The district court adopted the following factual findings of the magistrate
judge. Two Kansas City, Missouri, police officers were on routine patrol in an
unmarked police car when the driver of a Chevrolet Caprice (later identified as
Mr. Kanatzar) made a double-lane change directly in front of their vehicle without
signaling. After the Caprice turned onto a side street, the police stopped it. One of
the officers, Jason Crump, approached Mr. Kanatzar, informed him of the traffic
violation, and asked for a driver's license, which he was unable to produce. Officer
Krump then asked Mr. Kanatzar to step out of the vehicle and placed him under arrest
for an illegal lane change and failure to have his driver's license. Some time during
this interaction, Mr. Kanatzar informed the officer that he lived in Wichita, Kansas.
In the meantime, the other officer determined that the driving privileges of the
vehicle's passenger had been suspended.
The police decided to impound the vehicle because Mr. Kanatzar was from out
of state and was under arrest and going to jail where he would be required to post
bond, the passenger did not have a valid driver's license, and the vehicle was parked
in a "high crime area with a high incidence of auto thefts and break-ins." During an
inventory search of the vehicle, the police uncovered three firearms, along with fake
I.D.'s, printers, scanners, ski masks, and a large amount of cash.
The Kansas City Police Department's "general towing requirements" provide
that "[v]ehicles shall be towed," inter alia, "when the owner/operator is not
-2-
considered to be a responsible person, is unable to operate the vehicle, and is unable
to exercise any of [three] options": "[d]rive the vehicle to a police facility," "[r]elease
the vehicle to a qualified driver," or "[s]ign an Authorization Not to Tow Vehicle ...
allowing the arresting officer to leave the vehicle legally parked at the arrest scene."
The police department guidelines also provide that an officer has "discretion" to
decide whether to permit an arrested driver to leave his or her vehicle at the scene of
an arrest, and that "[g]ood judgment will be used before a vehicle is allowed to
remain parked at an arrest scene, [and] [c]onsideration will be given to [among other
things] area crime rate." The district court concluded that the officers had complied
with police department procedures and did not violate Mr. Kanatzar's fourth
amendment rights by impounding the vehicle and making an inventory of its contents.
The police may impound vehicles "[i]n the interests of public safety and as part
of what the Court has called 'community caretaking functions.' " See South Dakota
v. Opperman, 428 U.S. 364, 368 (1976) (quoting Cady v. Dombrowski, 413 U.S. 433,
441 (1973)). Officers are permitted to exercise their discretion in deciding whether
to impound a vehicle, so long as that discretion is "exercised according to standard
criteria and on the basis of something other than suspicion of evidence of criminal
activity." Colorado v. Burdine, 479 U.S. 367, 375 (1987).
In his brief, Mr. Kanatzar acknowledges that it was "within Officer Crump's
discretion" to impound the Caprice or to leave it where it was parked. He contends,
however, that the officers should not have based their decision on the fact that the car
was parked in a high-crime area or that Mr. Kanatzar was from out of state. Although
Mr. Kanatzar relies on a Seventh Circuit case to argue that the degree of crime in the
area should not be considered when determining whether to impound a vehicle, see
United States v. Duguay, 93 F.3d 346, 352-53 (7th Cir. 1996), we (as well as other
circuit courts) have considered the likelihood of theft or vandalism when determining
the reasonableness of an impoundment. See e.g., United States v. Garner, 181 F.3d
988, 992 (8th Cir. 1999), cert. denied, 528 U.S. 1119 (2000); see also United States
-3-
v. Kornegay, 885 F.2d 713, 716 (10th Cir.1989), cert. denied, 495 U.S. 935 (1990);
United States v. Staller, 616 F.2d 1284, 1290 (5th Cir.1980), cert. denied, 449 U.S.
869 (1980). In addition, in Bertine, 479 U.S. at 376 n.7, the Supreme Court noted
that a police directive prohibiting parking a vehicle (rather than impounding it)
" 'where there is reasonable risk of damage or vandalism' ... protect[ed] the vehicle
and its contents and minimize[d] claims of property loss."
Another appropriate police consideration here was the absence of anyone
immediately available to drive the Caprice. See United States v. Stephens, 350 F.3d
778, 780 (8th Cir. 2003); United States v. Martin, 982 F.2d 1236, 1240
(8th Cir.1993). We have said that the "[p]olice may take protective custody of a
vehicle when they have arrested its occupants," id., and they may "take immediate
possession and secure the vehicle" when the driver does not have a valid driver's
license, Stephens, 350 F.3d at 780. Although Mr. Kanatzar's passenger was not
arrested, she was unable to drive the car because her license had been suspended, and
we believe, moreover, that the fact that Mr. Kanatzar was from Wichita made it less
likely that the police could quickly locate someone else to take custody of the vehicle.
Mr. Kanatzar also argues in his brief that even though the police department
"had a written policy directing a content inventory of all vehicles being towed,
Officer Crump clearly had an investigative motive to search Mr. Kanatzar's vehicle"
because he testified that "he believed Mr. Kanatzar was attempting to conceal his
identity." We conclude, however, that after the decision was made to impound the
vehicle, the law permitted an inventory search consistent with police procedures to
protect Mr. Kanatzar's property and to protect the police against claims of lost or
stolen property and from potential danger. See Opperman, 428 U.S. at 369; see also
United States v. Rowland, 341 F.3d 774, 779 (8th Cir. 2003), cert. denied, 124 S. Ct.
969 (2003). Even if the officer had another motive, the "presence of an investigative
motive does not invalidate an otherwise valid inventory search." Garner, 181 F.3d
at 991-92.
-4-
We conclude that the police did not act unreasonably in deciding to impound
the vehicle and in conducting an inventory search. For all of the reasons stated, we
uphold the district court's denial of the motion to suppress.
II.
Mr. Kanatzar also challenges the sentencing court's imposition of an
enhancement under U.S.S.G. § 2K2.1(b)(5), which requires a four-level increase in
a defendant's offense level if the defendant "used or possessed any firearm ... in
connection with another felony offense." We review the court's findings of fact for
clear error and its conclusions of law de novo. See United States v. Mack, 343 F.3d
929, 935-36 (8th Cir.2003), cert. denied, 124 S. Ct. (2004).
Here the sentencing court applied the four-level increase based on a connection
between the firearms and the state felony of possessing a forging instrumentality, see
Mo. Rev. Stat. § 570.100. Mr. Kanatzar did not object to the probation officer's
statement in the presentence investigation report (PSR) that the police found in the
trunk of the car that he was driving three loaded firearms, a computer scanner, a
digital camera, spray adhesive, a counterfeit detector pen, several fraudulent driver's
licenses, photographic paper, $4300 in currency, and two ski masks. According to
the PSR, the defendant was "in possession of equipment used to manufacture
counterfeit checks and other evidence indicating he was involved in fraudulent check
passing activity." Although the defendant did not object to the underlying facts in the
PSR, he challenges the sentencing court's finding that because "all the paraphernalia
for crime was found together" he possessed a firearm "in connection with" the state
felony.
We have said that "[i]n connection with means that the firearm must have some
purpose or effect with respect to, and must facilitate, or have the potential of
facilitating, another felony offense; its presence or involvement cannot be the result
of accident or coincidence." United States v. Fredrickson, 195 F.3d 438, 439-40
-5-
(8th Cir.1999) (per curiam) (internal quotations omitted); see also United States v.
Regans, 125 F.3d 685, 686 (8th Cir.1997), cert. denied, 523 U.S. 1065 (1998). But
the government need not prove that the firearm was used in the commission of the
felony, only that it was used or possessed in connection with it. See United States v.
Scolaro, 299 F.3d 956, 957 (8th Cir.2002), cert. denied, 123 S. Ct. 1774 (2003).
Although we have stated that possessing a firearm contemporaneously with the
commission of another felony requires a § 2K2.1(b)(5) enhancement "unless it is
clearly improbable that the firearm was used in connection with that felony," United
States v. Marks, 328 F.3d 1015, 1017 (8th Cir. 2003) (internal quotations omitted),
we agree with Mr. Kanatzar that the "clearly improbable" standard is rightly limited
to cases in which the other felony offense is drug related. In Regans, 125 F.3d at 687,
we borrowed the "clearly improbable" language from the commentary to U.S.S.G.
§ 2D1.1(b)(1), a guideline that increases the offense level for drug-trafficking if the
defendant possesses a dangerous weapon while committing the drug offense, see
U.S.S.G. § 2D1.1(b)(1) & comment. (n. 3), and applied that standard (apparently for
the first time) to determine the propriety of a § 2K2.1(b)(5) enhancement when the
defendant is charged with possessing a gun. The defendant in Regans was found in
possession of both a gun and heroin, see 125 F.3d at 685, and we stated that a
"finding of the requisite connection in this situation is consistent with the purpose of
§ 2K2.1(b)(5) and cannot be clearly erroneous except, perhaps, in the exceptional
circumstances recognized in Application Note 3 to § 2D1.1--if 'it is clearly
improbable that the weapon was connected with the offense,' " 125 F.3d at 687
(emphasis added).
Since Regans, we have frequently quoted the "clearly improbable" standard
when applying § 2K2.1(b)(5), see, e.g., United States v. Linson, 276 F.3d 1017, 1018
(8th Cir. 2002), but Marks, 328 F.3d at 1017, is the only case that we have located in
which the other felony offense was not drug related. In Marks, the defendant's other
"felony offense," § 2K2.1(b)(5), was resisting arrest, but the "fighting issue" was not
-6-
whether the firearm was used or possessed in connection with that offense, but rather
whether that offense was a felony at all, 328 F.3d at 1017. We affirmed the four-level
increase in Marks based on evidence that the defendant's crime was a felony because
while fleeing from officers he displayed a pistol. See id. at 1018. Because the
defendant in Marks plainly used a firearm in connection with resisting arrest, our
holding did not require us to decide whether the "clearly improbable" language
applied. Therefore we do not believe that our reference in that case to that language
compels us to apply it here.
Although an unpublished case is not precedent, see 8th Cir. R. 28A(i), we agree
with our decision in United States v. Williams, No. 02-3477, 2003 WL 22427921
(8th Cir. Oct. 23, 2003) (per curiam). There we held that the sentencing court erred
in applying the "clearly improbable" standard in the commentary to the drug
trafficking guideline, § 2D1.1comment. (n.3), to interpret § 2K2.1(b)(5), because the
other felony offense did not involve drugs. See Williams, WL 22427921, at **2; cf.
United States v. Routon, 25 F.3d 815, 819 (9th Cir.1994). As we noted in Williams,
the commentary to § 2D1.1 indicates that the enhancement for weapons possession
reflects the increased risk of violence when drug traffickers possess weapons. See
§ 2D1.1 comment. (n.3). With respect to crimes that are not drug related, however,
we hold that the sentencing court should simply determine whether the enhancement
in § 2K2.1(b)(5) applies to the facts of the case without reference to the commentary
to the drug-trafficking guideline. Cf. Mack, 343 F.3d at 935-36.
With the above holding in mind, we consider whether the sentencing court
erred in finding that Mr. Kanatzar possessed the firearms in connection with the
possession of the implements of forgery. Mr. Kanatzar argues that the physical
proximity of the guns to the evidence of the forgery offense was not enough to
establish the necessary connection between the two. He relies on the Fifth Circuit's
decision in United States v. Fadipe, 43 F.3d 993, 994 (5th Cir. 1995), in which the
defendant submitted a false credit application to a bank. In Fadipe, law enforcement
-7-
arranged a controlled delivery to the defendant of bank checks printed for his use, and
he was arrested after he drove away from his apartment with the checks. See id. He
had a loaded gun in the car's front passenger area, along with information that could
be used in bank fraud schemes. See id. The court held that the physical proximity of
the gun to the instruments of fraud was insufficient to support a finding that the gun
was possessed "in connection with" the other felony offense of bank fraud. See id.
at 994-95.
The court in Fadipe appeared to require a showing that the gun was used in
connection with the commission of the crime before the enhancement applied, see id.
at 995, but we do not read § 2K2.1(b)(5) as imposing such a requirement, see Scolaro,
299 F.3d at 957. As we have said, it is enough if the firearm "had some purpose or
effect with respect to" and had "the potential of facilitating" the felony, see Regans,
125 F.3d at 686, and we believe that there was sufficient evidence to support that
finding here. An ongoing counterfeiting operation is likely to present danger to the
defendant, giving him reason to keep weapons near the tools of his trade, which, in
turn, may embolden him to engage in the criminal activity. Here where the defendant
had three loaded weapons, cash, and ski masks in close proximity to items used to
facilitate counterfeiting, we do not believe that the sentencing court was required to
find that the presence of the guns was coincidental. We thus conclude that the
sentencing court did not err in finding that Mr. Kanatzar "used or possessed a firearm
... in connection with another felony offense." U.S.S.G. § 2K2.1(b)(5).
III.
Under the sentencing guidelines, the base offense level of a defendant
convicted of being a felon in possession of a firearm should be increased from 14 to
20 if he or she had been previously convicted of a crime of violence. U.S.S.G.
§ 2K2.1(a)(4)(A), (6). The sentencing court increased Mr. Kanatzar's base offense
level to 20 because of his prior Kansas convictions for aggravated assault and battery.
Mr. Kanatzar does not dispute that aggravated assault and battery are crimes of
-8-
violence, see U.S.S.G. § 4B1.2(a), but he argues that his base offense level should
have been only 14 because by the time he committed the instant offense, the state of
Kansas had restored his civil rights to him. We disagree.
According to the commentary to § 2K2.1(a)(4)(A), a "felony conviction"
includes "a prior ... state conviction for an offense punishable by ... imprisonment for
a term exceeding one year." U.S.S.G. § 2K2.1 comment. (n.5). The guidelines direct
the court to determine the base offense level by considering the crimes used to
calculate the defendant's criminal history score, see U.S.S.G. § 2K2.1 comment.
(n.15), which may include convictions for which the defendant's civil rights have
been restored, see U.S.S.G. § 4A1.2 comment. (n. 10). But, as Mr. Kanatzar notes,
under 18 U.S.C. § 921(20), "what constitutes a conviction" of a "crime punishable by
imprisonment for a term exceeding one year" is determined according to the law of
the jurisdiction of the conviction, and "[a]ny conviction ... for which a person ... has
had civil rights restored shall not be considered a conviction for purposes of [the
chapter addressing firearms convictions and punishment], unless such ... restoration
of civil rights expressly provides that the person may not ship, transport, possess, or
receive firearms." Mr. Kanatzar argues that his civil rights were restored following
his Kansas convictions, and therefore under § 921(a)(20) they cannot be used to
increase his base offense level. See United States v. Palmer, 183 F.3d 1014, 1017-18
(9th Cir.1999). We agree with Mr. Kanatzar that where a conflict exists a statute
generally prevails over a guideline. See United States v. Stoneking, 60 F.3d 399, 402
(8th Cir. 1995) (en banc), cert. denied, 516 U.S. 1119 (1996). But even if we assume,
without deciding, that § 921(a)(20) is applicable in these circumstances, we believe
that Mr. Kanatzar cannot prevail.
According to the defendant's argument, all of his civil rights, including his right
to possess firearms, were restored to him under Kansas law ten years after his March
1991 assault and battery convictions, and therefore those convictions should not have
been used to increase his base offense level for the firearms violation that occurred
-9-
in January 2003. Following imprisonment for the Kansas convictions, Mr. Kanatzar
was placed on parole in 1999 and discharged in February 2001. His "certificate of
discharge" from the Kansas parole board ordered that his civil rights," including the
right to vote, hold public office, and serve on a jury, be restored to him. But the
certificate further provided that "[t]hese rights shall not include the right to own,
possess, or use a firearm or other weapon as prohibited by K.S.A. [§] 21-4202 or
K.S.A. [§] 21-4204."
Mr. Kanatzar contends that as of March 2001, ten years after the assault and
battery convictions, his civil rights were fully restored to him by operation of § 21-
4204, a statute referred to in his discharge. He relies on the subsection of that statute
that describes the crime of "[c]riminal possession of a firearm" to include the
following:
possession of any firearm by a person who, within the preceding
10 years, has been convicted of ... [a] felony under K.S.A. ... 21-3410
[the aggravated assault statute] ... or a crime under a law of another
jurisdiction which is substantially the same as such felony, has been
released from imprisonment for such felony, or was adjudicated as a
juvenile offender because of the commission of an act which if done by
an adult would constitute commission of such felony, was found not to
have been in possession of a firearm at the time of the commission of the
offense, and has not had the conviction ... expunged or been pardoned."
Kan. Stat. Ann. § 21-4204(4).
We believe, however, that Mr. Kanatzar cannot benefit from this statute for
several reasons. First, the subsection upon which he relies criminalizes the
possession of a firearm by a person who "within the preceding 10 years ... has been
released from imprisonment" for an aggravated assault conviction. Cf. State v.
Chiles, 260 Kan. 75, 80, 917 P.2d 866, 870 (1996). Because Mr. Kanatzar was not
released from prison until 1999, under this provision he would not be permitted to
-10-
possess a firearm until 2009. We note, moreover, that § 21-4204(4) applies only to
individuals "found not to have been in possession of a firearm at the time of the
commission of the [previous] offense." Here, however, there is no such finding in the
record. In fact, the PSR reveals that the conduct supporting Mr. Kanatzar's state
convictions very clearly involved possessing (and discharging) firearms, and
Mr. Kanatzar did not object to that part of the PSR. Finally, we note that in Kansas
those individuals found to have possessed a firearm during what is called a "person
felony" such as aggravated assault, see Kan. Stat. Ann. § 21-3410, are prohibited
from possessing a firearm for an unlimited time period. See Kan. Stat. Ann. § 21-
4204(2). For all of the reasons stated, we believe that after his assault and battery
convictions, Kansas never restored to Mr. Kanatzar his right to possess firearms, and
thus his argument must fail.
IV.
Accordingly, we affirm the judgment of the district court.
______________________________
-11-