United States v. Robert Knopping ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 24 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 19-50322
Plaintiff-Appellee, D.C. No. 3:18-cr-04451-LAB-1
v.
ROBERT WILLIAM KNOPPING, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of California
Larry A. Burns, District Judge, Presiding
Submitted May 18, 2021**
Before: CANBY, FRIEDLAND, and VANDYKE, Circuit Judges.
Robert William Knopping appeals from the district court’s judgment and
challenges the 90-month sentence and several conditions of supervised release
imposed following his guilty-plea conviction for importation of methamphetamine,
in violation of 21 U.S.C. §§ 952, 960. We have jurisdiction under 28 U.S.C.
*
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).
§ 1291. We affirm in part, vacate in part, and remand.
Knopping first contends that, when calculating his Guidelines range, the
district court erred by declining to reduce his offense level by a third point for
acceptance of responsibility under U.S.S.G. § 3E1.1(b). We review the district
court’s application of the Guidelines to the facts for abuse of discretion. See
United States v. Herrera, 974 F.3d 1040, 1045 (9th Cir. 2020). The district court
did not abuse its discretion by concluding that Knopping’s failure to appear at the
initial sentencing and subsequent decision to abscond for several months were
inconsistent with complete acceptance of responsibility. See U.S.S.G. § 3E1.1
cmt. n.6 (“The timeliness of a defendant’s acceptance of responsibility is a
consideration under both subsections [of the Guideline], and is context specific.”);
United States v. Tuan Ngoc Luong, 965 F.3d 973, 991 (9th Cir. 2020) (acceptance
of responsibility adjustment turns on whether defendant expressed “personal
contrition” and “a genuine acceptance of responsibility for his actions” (internal
quotation marks omitted)).1 Though not necessary to our analysis, we also note
that the district court granted a substantial downward variance of 172 months from
the bottom of the applicable Guidelines range and fully explained why a greater
1
Though the district court did not impose it, the government recommended at
sentencing that, because Knopping absconded, he should receive a two-level
upward adjustment for obstruction of justice. Conduct resulting in an obstruction
of justice enhancement “ordinarily indicates that the defendant has not accepted
responsibility for his criminal conduct.” U.S.S.G. § 3E1.1 cmt. n.4.
2 19-50322
variance was not warranted.
Knopping also contends that the written judgment’s inclusion of the
mandatory and standard conditions of supervised release conflicts with the district
court’s oral pronouncement of sentence, which did not include these conditions.
However, imposition of mandatory and standard conditions is “implicit in an oral
sentence imposing supervised release.” United States v. Napier, 463 F.3d 1040,
1043 (9th Cir. 2006). Contrary to Knopping’s argument, nothing in Napier
requires the district court to state at sentencing that it will be imposing the standard
conditions. See id.Finally, Knopping contends that four of the special conditions in the written
judgment contain additional restrictions that must be stricken because they were
not included in the oral pronouncement. We agree as to three of the conditions.
Specifically, the district court’s oral pronouncement of sentence did not include:
(1) the requirement in Special Condition 1 that Knopping “comply with both
United States and Mexican immigration laws;” (2) the requirements in Special
Condition 2 that Knopping “[a]llow for reciprocal release of information between
the probation officer and the treatment provider,” and “[m]ay be required to
contribute to the costs of services rendered in an amount to be determined by the
probation officer, based on ability to pay;” and (3) the requirement in Special
Condition 5 that Knopping “warn any other residents that the premises may be
3 19-50322
subject to searches pursuant to this condition.” We therefore vacate the judgment
and remand so the district court can enter a corrected written judgment that does
not contain the foregoing clauses. See United States v. Jones, 696 F.3d 932, 938
(9th Cir. 2012).
We disagree that the language of Special Condition 3 in the written
judgment conflicts with the court’s oral pronouncement. Rather, the phrase “or in
which you have an interest” clarifies what it means for Knopping to own a vehicle
for the purposes of reporting it to his probation officer. See Napier, 463 F.3d at
1043 (later written sentence controls when it “merely clarifies an ambiguity in the
oral pronouncement”).
AFFIRMED in part, VACATED in part, and REMANDED.
4 19-50322