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 2016-06

United States v. Kenyatta Steppes ( 2016 )


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  •                                                                             FILED
NOT FOR PUBLICATION
JUN 10 2016
UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,                        No. 15-10243
Plaintiff - Appellee,              D.C. No. 2:14-cr-00100-GMN-
GWF-1
v.
KENYATTA BERNARD STEPPES,                        MEMORANDUM*
Defendant - Appellant.
Appeal from the United States District Court
for the District of Nevada
Gloria M. Navarro, Chief District Judge, Presiding
Argued and Submitted May 11, 2016
San Francisco, California
Before: FARRIS, O’SCANNLAIN, and CHRISTEN, Circuit Judges.
Kenyatta Steppes challenges the sentence imposed upon his conviction
under 18 U.S.C. § 2113(a) for one count of credit union robbery, one count of bank
robbery, and two counts of attempted bank robbery. Because the facts are known
to the parties, we do not repeat them here.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
I
The district court did not err in applying a career offender enhancement
under the federal sentencing guidelines. See U.S. Sentencing Guidelines Manual
§ 4B1.1 (U.S. Sentencing Comm’n 2014). Notwithstanding the residual clause in
section 4B1.2(a)(2), each of Steppes’s prior crimes of conviction categorically
qualifies as a “crime of violence” under the remainder of the definition provided in
section 4B1.2(a). See United States v. Selfa,
    918 F.2d 749
    , 751–52 (9th Cir. 1990);
United States v. Potter,
    895 F.2d 1231
    , 1237 (9th Cir. 1990); cf. United States v.
Ruiz-Apolonio,
    657 F.3d 907
    , 911 (9th Cir. 2011) (holding that a conviction under
Cal. Penal Code § 261(a)(2) is a “crime of violence” under section 2L1.2 of the
sentencing guidelines). None of the cases cited by Steppes is “clearly
irreconcilable” with our prior opinions holding these crimes categorically to be
crimes of violence. Miller v. Gammie,
    335 F.3d 889
    , 900 (9th Cir. 2003) (en
banc).
II
The district court did not abuse its discretion in ordering Steppes’s sentence
to be served consecutively to the sentence imposed upon revocation of his
supervised release. The court properly consulted relevant factors under 18 U.S.C.
§ 3553(a) when making that decision. See, e.g., United States v. Shouse,
    755 F.3d 2 
    1104, 1108 (9th Cir. 2014) (upholding sentence ordered to run consecutively, in
part, because offense was committed while defendant was on probation); United
States v. Dowd,
    417 F.3d 1080
    , 1089 (9th Cir. 2005) (affirming consecutive
sentence based on district court’s concerns over recidivism).
III
The government concedes that it should have moved to reduce Steppes’s
offense level by an additional point under sentencing guidelines section 3E1.1(b).
We therefore vacate Steppes’s sentence and remand for a resentencing hearing, at
which the government will file such a motion.
AFFIRMED in part, VACATED in part, and REMANDED.
3