United States v. Benjamin Scruggs ( 2023 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 14 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 22-10127
Plaintiff-Appellee, D.C. No.
3:21-cr-00003-HDM-CLB-1
v.
BENJAMIN SCRUGGS, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the District of Nevada
Howard D. McKibben, District Judge, Presiding
Submitted March 10, 2023**
Las Vegas, Nevada
Before: GRABER, CLIFTON, and BENNETT, Circuit Judges.
Defendant Benjamin Scruggs timely appeals his conviction for being a felon
in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) & 924(a)(2)
(2021), and his resulting sentence of seventy months of imprisonment followed by
three years of supervised release. We remand for the limited purpose of correcting
*
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).
an error in the written judgment, but we otherwise affirm the conviction and
sentence.
1. Reviewing de novo the district court’s denial of Defendant’s motion to
suppress evidence of a firearm, United States v. Evans, 786 F.3d 779, 784 (9th Cir.
2015), we agree with the district court that the police officers did not violate the
Fourth Amendment. Officer Shane Pearman talked to a tall, white man with a
goatee who had run from the scene of a shooting, and the man declined to give his
name. Officer Pearman then learned that Matt George, who had an active warrant
for his arrest, may have been involved in the shooting, and Officer Pearman
reviewed mugshots and information in the police database. Reports stated that
George was a white man standing up to 6’1” tall, and his photographs appeared
similar to the tall, white man who had fled the scene. The facial features, hair
style, and facial hair of both men are strikingly similar. Officer Pearman
reasonably mistook Defendant for George. See Sharp v. County of Orange, 871
F.3d 901, 910 (9th Cir. 2017) (“In a case of mistaken identity, ‘the question is
whether the arresting officers had a good faith, reasonable belief that the arrestee
was the subject of the warrant.’” (quoting Rivera v. County of Los Angeles, 745
F.3d 384, 389 (9th Cir. 2014))).
Although some factors suggested that perhaps the man was not George,
those factors do not undermine the overall conclusion that Officer Pearman’s
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mistake was a reasonable one. For example, George’s weight consistently was
listed as approximately 160 pounds, less than Defendant’s weight of 240 pounds.
But, as the district court observed, a person’s weight fluctuates, and Officer
Pearman saw Defendant only when he wore baggy clothes. Body-camera footage
does not show a man plainly much larger than 160 pounds. We have carefully
reviewed the full record, including the body-camera footage, and we agree with the
district court that Officer Pearman’s mistake was objectively reasonable.
We also agree with the district court that the arresting officers reasonably
concluded that a pat-down frisk was warranted. A shooting had occurred only one
day earlier. When approached by officers, Defendant acted evasive, lied to the
officers and, despite being warned specifically not to put his hands in his pockets,
he put one hand in his pocket. He was wearing a baggy sweatshirt that the officers
reasonably feared concealed a weapon.
Because the officers did not violate the Fourth Amendment, we need not,
and do not, reach the government’s alternative argument that the evidence was
admissible under the attenuation doctrine pursuant to Utah v. Strieff, 579 U.S. 232(2016).
2. The district court did not err by imposing a risk-notification condition of
supervised release. As Defendant concedes, his argument is foreclosed by our
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decision in United States v. Gibson, 998 F.3d 415, 423 (9th Cir. 2021), cert.
denied, 142 S. Ct. 832 (2022).
3. As the government concedes, the district court erred by not specifying in
the written judgment that Defendant must participate in an outpatient drug
treatment program. See United States v. Hernandez, 795 F.3d 1159, 1169 (9th Cir.
2015) (holding that the oral pronouncement of a sentence controls over the written
judgment). “As we have done in the past, we remand so that the district court can
make the written judgment consistent with the oral pronouncement.” Id. (brackets
omitted) (citation and internal quotation marks omitted).
REMANDED with the instruction to amend the written judgment to
conform with the oral pronouncement of the sentence; otherwise AFFIRMED.
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