United States v. Eric Hunter ( 2019 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS NOV 13 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 18-30186
Plaintiff-Appellee, D.C. No.
1:17-cr-00037-BLW-1
v.
ERIC COURTNEY HUNTER, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the District of Idaho
B. Lynn Winmill, District Judge, Presiding
Argued and Submitted November 5, 2019
Seattle, Washington
Before: GOULD and NGUYEN, Circuit Judges, and R. COLLINS,** District
Judge.
Eric Courtney Hunter appeals the district court’s application of two
sentencing enhancements. We have jurisdiction under 28 U.S.C. § 1291.
Reviewing the district court’s application of the Sentencing Guidelines for an
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Raner C. Collins, United States District Judge for the
District of Arizona, sitting by designation.
abuse of discretion, United States v. Gasca-Ruiz, 852 F.3d 1167, 1170 (9th Cir.
2017) (en banc), we affirm.
Hunter stole $27,000 and a BMW from a woman in whose house he was
living. Hunter had a shotgun during the theft and stored the shotgun, loaded, under
the backseat of the BMW while he was driving away. A jury convicted Hunter of
two counts under 18 U.S.C. § 922(g)(1). After reading the Initial Presentencing
Report, Hunter called the presentence investigator and left a voicemail in which
Hunter stated that he “look[ed] forward to dealing with [the investigator] in the
future.” At sentencing, the district court applied a section 2K2.1(b)(6)(B)
enhancement because the court determined that Hunter possessed the shotgun in
connection with the theft and applied a section 3C1.1 enhancement because the
court determined that Hunter’s voicemail constituted obstruction of justice.
The district court’s application of the section 2K2.1(b)(6)(B) sentencing
enhancement was not an abuse of discretion. The question is whether “the firearm
or ammunition facilitated, or had the potential of facilitating, another felony,”
U.S.S.G. § 2K2.1 cmt. n.14(A) (U.S. Sentencing Comm’n 2016), or, in other
words, whether the firearm “had some potential emboldening role in” the felony,
United States v. Routon, 25 F.3d 815, 819 (9th Cir. 1994). A key factor is
accessibility. Id. Here, the shotgun was accessible because Hunter had the
shotgun while committing the theft, and because Hunter, during his attempted
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getaway, stored the shotgun, loaded, under the backseat while driving away.
Although the shotgun was not within arm’s reach, and the district court said that it
was not “readily accessible,” the shotgun’s presence was not an “accident or
coincidence.” United States v. Ellis, 241 F.3d 1096, 1100 (9th Cir. 2001). Equally
important, because he put the shotgun in the car after the theft, it is obvious that it
was available to him for his use while he was stealing the money and the car.
Also, the district court’s application of the section 3C1.1 enhancement was
not an abuse of discretion. “Obstructive conduct can vary widely in nature, degree
of planning, and seriousness.” U.S.S.G. § 3C1.1 cmt. n.3 (U.S. Sentencing
Comm’n 2016). The district court found the voicemail to be “chilling” and in this
way determined that the call was potentially obstructive. Although the district
court did not make an express finding that Hunter attempted to willfully obstruct
justice by threatening the probation investigator, the literal language used by
Hunter in the message carried an unmistakable meaning in its context. We see no
grounds on which to hold the district court’s determination applying the
obstruction-of-justice enhancement to be an abuse of discretion.
The district court’s findings pertaining to the obstruction-of-justice
enhancement were adequately specific. Over Hunter’s objection, the district court
stressed that the call was volunteered, was chilling, and potentially affected the
presentence report. The specificity of the district court’s findings was more than
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adequate. See United States v. Gardner, 988 F.2d 82, 83 (9th Cir. 1993) (per
curiam); United States v. Marquardt, 949 F.2d 283, 286 (9th Cir. 1991) (per
curiam).
AFFIRMED.
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