United States v. Kevin Peterson

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 17-30084
Plaintiff-Appellee,
D.C. No.
v. 2:16-cr-00150-RSL-1
KEVIN TERRELL PETERSON,
Defendant-Appellant. OPINION
Appeal from the United States District Court
Western District of Washington
Robert S. Lasnik, Senior District Judge, Presiding
Argued and Submitted June 15, 2018
Seattle, Washington
Filed September 4, 2018
Before: Milan D. Smith, Jr., and Paul J. Watford, Circuit
Judges, and Douglas L. Rayes, * District Judge.
Opinion by Judge Rayes
*
The Honorable Douglas L. Rayes, United States District Judge for
the District of Arizona, sitting by designation.
2 UNITED STATES V. PETERSON
SUMMARY **
Criminal Law
The panel affirmed the district court’s denial of a motion
to suppress, vacated a sentence, and remanded for
resentencing in a case in which the defendant was convicted
for being a felon in possession of a firearm in violation of
18 U.S.C. § 922(g)(1).
The panel held that in denying the defendant’s motion to
suppress the handgun found in his backpack, the district
court properly concluded that the handgun inevitably would
have been discovered in an inventory search at the time of
booking. The panel wrote that had the officers arrested the
defendant only on misdemeanor warrants, and had they
complied with Revised Code of Washington § 10.31.030,
the defendant would have been able to post bail, thereby
avoiding the booking and inventory search altogether. But
because the officers would have booked the defendant on
obstruction or resisting arrest charges absent discovery of the
gun, and because bail had not yet been set on those charges,
the defendant would have been taken into custody upon
booking, and his possessions would have been inventoried
at that time.
The panel held that the district court erred in treating the
defendant’s first-degree robbery conviction under Revised
Code of Washington § 9A.56.190 as a crime of violence
under U.S.S.G. §§ 2K2.1(a)(2) and 4B1.2. The panel
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
UNITED STATES V. PETERSON 3
rejected the government’s argument that Washington first-
degree robbery is a categorical match for the offenses of
robbery and extortion enumerated in § 4B1.2(a)(2). The
panel explained that because Washington robbery
encompasses threats to property, it does not fall categorically
within generic robbery; and that under a definition of
“extortion” added to § 4B1.2’s commentary in 2016,
Washington’s robbery statute is not a categorical match
because it allows for a conviction to rest on fear of injury to
property alone.
The panel held that the district court did not abuse its
discretion in applying a two-level enhancement for reckless
endangerment during flight under U.S.S.G. § 3C1.2 because
the defendant’s actions reasonably can be construed as being
“in preparation of flight,” and because these actions
reasonably could be viewed as presenting a substantial risk
of harm to the officers and others on the interstate.
COUNSEL
Jesse Cantor (argued) and Ann K. Wagner, Assistant Federal
Public Defenders; Office of the Federal Public Defender,
Seattle, Washington; for Defendant-Appellant.
Charlene Koski (argued), Assistant United States Attorney;
Annette L. Hayes, United States Attorney; United States
Attorney’s Office, Seattle, Washington; for Plaintiff-
Appellee.
4 UNITED STATES V. PETERSON
OPINION
RAYES, District Judge:
Defendant-Appellant Kevin Peterson appeals the district
court’s denial of his motion to suppress the handgun found
in his backpack. The district court concluded that the
evidence inevitably would have been discovered in an
inventory search. We affirm the order.
Peterson also challenges his sentence of 48 months’
imprisonment imposed for being a felon in possession of a
firearm, in violation of 18 U.S.C. § 922(g)(1). The district
court concluded that Peterson’s prior conviction for first-
degree robbery was a “crime of violence” as that term is
defined by U.S. Sentencing Guidelines (“Sentencing
Guidelines” or “U.S.S.G.”) section 4B1.2(a) which, along
with a prior controlled substance offense, increased his base
offense level to 24 under U.S.S.G. section 2K2.1(a)(2). The
district court also concluded that his conduct warranted a
two-level enhancement under U.S.S.G. section 3C1.2 for
reckless endangerment during flight. Finding that
Peterson’s prior conviction for first-degree robbery was not
a “crime of violence,” we affirm in part and reverse in part.
Accordingly, Peterson’s sentence is vacated, and this matter
remanded for resentencing.
I. Background
On August 14, 2015, King County police officers
arrested Peterson on outstanding warrants. At the time of the
arrest, the arresting officer instructed Peterson to remove his
backpack so that he could be handcuffed. The officer waited
to search the backpack until after he had handcuffed and
secured Peterson in the back of the patrol car. Upon opening
the backpack, the officer discovered a handgun, which
UNITED STATES V. PETERSON 5
officers on the scene soon determined was stolen. The
officers informed Peterson of additional charges for
possession of the firearm, and then transported him to King
County Jail, where Peterson was booked on charges of
unlawful possession of a firearm and possession of a stolen
firearm, both felony offenses.
After indictment for being a felon in possession of a
firearm, Peterson filed a motion to suppress evidence of the
handgun discovered in his backpack. The district court
denied the motion, finding that the gun inevitably would
have been discovered during an inventory search of the
backpack during Peterson’s booking.
On January 19, 2017, at the close of a stipulated-facts
bench trial, the district court found Peterson guilty of being
a felon in possession of a firearm. Before sentencing, the
United States Probation Office submitted a Presentence
Report and a Sentencing Recommendation. The Probation
Officer’s calculation of Peterson’s base offense level
incorporated, among other things, a finding that Peterson’s
prior Washington state felony conviction for first-degree
robbery constituted a crime of violence under the
Guidelines, and a two-level enhancement for reckless
endangerment during flight.
Peterson objected to the sentencing recommendations,
but the district court overruled his objections and applied the
recommended base offense level. Peterson timely appealed
the district court’s denial of his motion to suppress and its
application of sentencing enhancements under sections
2K2.1(a)(2) and 3C1.2.
6 UNITED STATES V. PETERSON
II. Discussion
Peterson raises several arguments on appeal. First, he
claims that the district court erred in denying his motion to
suppress because the inevitable discovery exception to the
exclusionary rule is inapplicable. Second, Peterson
challenges his sentence, arguing that the district court
improperly found his first-degree robbery conviction
constituted a crime of violence under sections 2K2.1(a)(2)
and 4B1.2, and in applying a two-level enhancement for
reckless endangerment during flight under section 3C1.2.
We address each of these claims in turn.
A. Motion to Suppress
“We review de novo motions to suppress, and any factual
findings made at the suppression hearing for clear error.”
United States v. Negrete-Gonzales, 966 F.2d 1277, 1282 (9th
Cir. 1992). “[I]nevitable discovery rulings are mixed
questions [of law and fact] that . . . should be reviewed under
a clearly erroneous standard.” United States v. Lang,
149 F.3d 1044, 1047 (9th Cir. 1998).
The exclusionary rule allows courts to suppress evidence
obtained as a result of an unconstitutional search or seizure.
Mapp v. Ohio, 367 U.S. 643, 655–66 (1961). The
exclusionary rule does not apply, however, if the
government establishes by a preponderance of the evidence
that the unlawfully obtained information “ultimately or
inevitably would have been discovered by lawful means[.]”
Nix v. Williams, 467 U.S. 431, 444 (1984); see also United
States v. Andrade, 784 F.2d 1431, 1433 (9th Cir. 1986)
(holding that potentially unconstitutional search incident to
arrest did not warrant application of the exclusionary rule
because police would have found the evidence while taking
inventory of the defendant’s belongings during booking).
UNITED STATES V. PETERSON 7
Here, the district court found that, under the
circumstances, the warrantless search of Peterson’s
backpack was not justified as a search incident to arrest, but
that the evidence nonetheless was not subject to exclusion
because it inevitably would have been discovered during an
inventory search at the time of booking. Specifically, the
district court found that “even if the deputies had not
searched [Peterson’s] backpack, they would have had cause
to book him for something more serious than the warrants:
obstructing a law enforcement officer or resisting arrest
. . . .”
On appeal, the government contends that the handgun
discovered in Peterson’s backpack inevitably would have
been discovered during the inventory search, but also argues
the search was a proper search incident to arrest. For
purposes of this decision, we will assume that the district
court properly found that the warrantless search of
Peterson’s backpack was not justified as a search incident to
arrest. We affirm because the district court properly applied
the inevitable discovery rule.
“[I]t is not ‘unreasonable’ for police, as part of the
routine procedure incident to incarcerating an arrested
person, to search any container or article in his possession,
in accordance with established inventory procedures.”
Illinois v. Lafayette, 462 U.S. 640, 648 (1983); see also
United States v. Cormier, 220 F.3d 1103, 1111 (9th Cir.
2000) (noting that courts should consider state law in
addition to any local police department policies when
determining lawfulness of inventory search conducted by
state or local police officers). Peterson does not dispute that,
if he were booked, his backpack would inevitably have been
8 UNITED STATES V. PETERSON
subject to an inventory search. 1 Instead, he contends that the
discovery of the handgun was not inevitable because, but for
the illegal search of his backpack at the time of his arrest, the
officers would have had cause to book him only on his
misdemeanor warrants, for which he would have posted bail
and avoided the inventory search altogether.
We agree that the evidence suggests that Peterson’s
backpack would not have been subject to an inventory search
had he been arrested only for his misdemeanor warrants.
Under Washington law, arrestees capable of posting bail
may avoid incarceration. See State v. Smith, 783 P.2d 95, 98
(Wash. Ct. App. 1989). Revised Code of Washington
section 10.31.030 provides that, when someone is arrested
under the authority of a warrant, the arresting officer must
provide the arrestee with notice of the charge and the amount
of bail set by the warrant. Smith, 783 P.2d at 98. An
inventory search conducted before an arrestee is provided
1
The officers testified that Peterson’s backpack would have been
searched during the booking process, written policies supported their
testimony, and the policies were sufficiently detailed regarding the
situation at hand. For instance, Sergeant Michael Allen of the King
County Jail testified that the arresting agency takes custody of backpacks
because the jail does not accept backpacks from arrestees awaiting
booking. Consistent with this testimony, section 5.05.001 of King
County Jail’s General Policy Manual states that intake officers at the
county jail shall “[s]creen all property upon receipt from the outside
agencies” and “return oversized items,” like backpacks to the
transporting officer for return “to their department’s safe keeping area.”
Detective Clayton Minshull of the King County Sheriff’s Office testified
that, in such situations, the arresting officer conducts an inventory search
to determine whether an item contains perishables, contraband, or
valuables and places the backpack into evidence for safekeeping.
Minshull’s testimony is supported by section 8.05.000 of the General
Orders Manual for the King County Sheriff’s Office, which provides
that, “[i]tems not accepted by the jail should be inspected by the deputy
prior to booking.”
UNITED STATES V. PETERSON 9
the information required by section 10.31.030 is unlawful.
Id.; see also State v. Caldera, 929 P.2d 482, 483–84 (Wash.
Ct. App. 1997) (holding inventory searches unlawful when
conducted prior to providing arrestees the opportunity to
post bail as required by section 10.31.030).
Here, no arresting officer advised Peterson of the amount
of bail for his misdemeanor warrants, which was set at
$135,000. Peterson presented sufficient evidence of his
ability to post a bail bond in that amount. Accordingly, had
the officers arrested Peterson only on the misdemeanor
warrants, and had they complied with section 10.31.030,
Peterson would have been able to post bail, thereby avoiding
the booking and inventory search process altogether.
Peterson’s ability to post bail on the misdemeanor
warrants, however, has no bearing on whether his backpack
would have been subject to an inventory search had he been
booked on charges of obstructing law enforcement officers
or resisting arrest because bail had not yet been set on those
charges at the time Peterson was booked. The district court
credited the arresting officer’s testimony that he
“absolutely” would have booked Peterson on obstruction of
law enforcement officers and resisting arrest charges had he
not searched the backpack and discovered the handgun.
During the arrest, Peterson twice broke away from officers
and tried to escape on foot. Although Peterson was not
charged with these crimes at booking, the district court
credited officer testimony that it was standard practice to
book arrestees only on felony charges when both felony and
misdemeanor charges are available. Because the officers
would have booked Peterson on obstruction or resisting
arrest charges absent discovery of the gun, and because bail
had not yet been set on those charges, Peterson would have
been taken into custody upon booking. The evidence
10 UNITED STATES V. PETERSON
demonstrates that it is standard procedure to inventory a
defendant’s possessions at the time of booking if the King
County jail will not accept the item and the arrestee will be
taken into custody. The district court did not err in denying
Peterson’s motion to suppress because the handgun
inevitably would have been discovered.
B. Crime of Violence Sentencing Enhancement
Peterson was found guilty of being a felon in possession
of a firearm, in violation of 18 U.S.C. § 922(g)(1). Under
the Sentencing Guidelines, the base offense level for that
offense varies depending on whether the defendant has one
or more prior felony convictions for a “crime of violence” or
a controlled substance offense. U.S. Sentencing Comm’n,
Guidelines Manual, § 2K2.1(a) (Nov. 2015). The district
court determined that Peterson had two such convictions
under Washington law: (1) first-degree robbery and
(2) delivery of cocaine. On appeal, Peterson challenges only
whether his first-degree robbery conviction constitutes a
“crime of violence.”
We review de novo a district court’s interpretation of the
Sentencing Guidelines. United States v. Robinson, 869 F.3d
933, 936 (9th Cir. 2017). To determine whether a prior
felony conviction qualifies as a “crime of violence” under
section 4B1.1(a), we use the “categorical approach,” under
which “‘we look only to the statute of conviction,’ and
‘compare the elements of the statutory definition of the
crime of conviction with a federal definition of the crime to
determine whether conduct proscribed by the statute is
broader than the generic federal definition.’” United States
v. Simmons, 782 F.3d 510, 513 (9th Cir. 2015) (quoting
United States v. Lee, 704 F.3d 785, 788 (9th Cir. 2012)).
Stated differently, the sentencing enhancement is prohibited
if the scope of conduct covered by Washington first-degree
UNITED STATES V. PETERSON 11
robbery is broader than the federal definition, even if the
conduct that led to the defendant’s prior conviction was, in
fact, violent. See Taylor v. United States, 495 U.S. 575, 600
(1990).
At the time of Peterson’s sentencing, the Sentencing
Guidelines defined the term “crime of violence” as follows:
The term “crime of violence” means any
offense under federal or state law, punishable
by imprisonment for a term exceeding one
year, that—
(1) has as an element the use, attempted use,
or threatened use of physical force against the
person of another, or
(2) is murder, voluntary manslaughter,
kidnapping, aggravated assault, a forcible sex
offense, robbery, arson, extortion, or the use
or unlawful possession of a firearm described
in 26 U.S.C. § 5845(a) or explosive material
as defined in 18 U.S.C. § 841(c).
U.S.S.G. § 4B1.2(a). The first clause of this definition
commonly is referred to as the “elements clause,” and the
second as the “enumerated offenses” clause. Although an
offense qualifies as a “crime of violence” if it is covered by
either clause, we focus on the enumerated offenses clause
because the government contends only that Washington’s
first-degree robbery constitutes a “crime of violence” under
section 4B1.2(a)(2). 2 In particular, the government argues
2
Peterson argues in his opening brief that neither section
4B1.2(a)(1) nor section 4B1.2(a)(2) applies to his first-degree robbery
12 UNITED STATES V. PETERSON
that Washington first-degree robbery is a categorical match
for the enumerated offenses of robbery and extortion.
“Robbery” is an enumerated offense that constitutes a
crime of violence. But the Sentencing Guidelines refer only
to “generic” robbery, which has been defined as “aggravated
larceny, containing at least the elements of misappropriation
of property under circumstances involving immediate
danger to the person.” United States v. Becerril-Lopez,
541 F.3d 881, 891 (9th Cir. 2008) (quoting United States v.
Santiesteban-Hernandez, 469 F.3d 376, 380 (5th Cir.
2006)). “Generic robbery requires danger to the person, not
merely danger to property.” United States v. Edling,
895 F.3d 1153, 1157 (9th Cir. 2018).
Peterson was convicted of robbery under Revised Code
of Washington section 9A.56.190, which states:
A person commits robbery when he or she
unlawfully takes personal property from the
person of another or in his or her presence
against his or her will by the use or threatened
use of immediate force, violence, or fear of
conviction. Because the government has not responded to Peterson’s
section 4B1.2(a)(1) argument, it has waived reliance on the elements
clause. See, e.g., United States v. Castillo-Marin, 684 F.3d 914, 919 (9th
Cir. 2012) (noting that the government waives an argument when it does
not make that argument at the time it filed its answering brief).
Notwithstanding the government’s waiver, we have serious doubts that
Washington first-degree robbery is a categorical match under the
elements clause because Washington’s robbery offense includes force
directed at property, which is not covered in the elements clause. See
United States v. Edling, 895 F.3d 1153, 1157 (9th Cir. 2018).
UNITED STATES V. PETERSON 13
injury to that person or his or her property or
the person or property of anyone.
Id. (emphasis added). Because Washington robbery
encompasses threats to property and generic robbery
excludes threats that are limited to property, the minimum
conduct necessary to constitute Washington robbery does
not fall categorically within generic robbery. See Edling,
895 F.3d at 1157 (“[B]y allowing a conviction to rest on fear
of injury to property alone, [the State’s] robbery statute is
not a categorical match for generic robbery.”); United States
v. Bercier, 192 F. Supp. 3d 1142, 1151 (E.D. Wash. 2016)
(finding that because Washington second-degree robbery
criminalizes physical force against property it is overbroad
and not a categorical match for generic robbery).
The enumerated offenses clause also lists “extortion”
among the offenses that constitute a crime of violence. In
2016, before Peterson was sentenced, the Sentencing
Commission (“Commission”) added for the first time a
specific definition of “extortion” to section 4B1.2’s
commentary, which provides: “‘Extortion’ is obtaining
something of value from another by the wrongful use of
(A) force, (B) fear of physical injury, or (C) threat of
physical injury.” U.S.S.G. § 4B1.2 cmt. n.1; U.S.S.G. Supp.
to App. C, Amend. 798 at 131 (2016). “[T]he Guidelines’
new definition of extortion narrows the offense by requiring
that the wrongful use of force, fear, or threats be directed
against the person of another, not property.” Edling,
895 F.3d at 1157; see United States v. Bankston, — F.3d — ,
2018 WL 4016853, at *3 (9th Cir. Aug. 23, 2018) (holding
that California robbery is “no longer a categorical match”
under the new definition). Washington’s robbery statute
therefore is not a categorical match because it allows for a
conviction to rest on fear of injury to property alone.
14 UNITED STATES V. PETERSON
In sum, Washington first-degree robbery is not a
categorical match under the enumerated offenses clause of
section 4B1.2(a)(2). We therefore find that the district court
erred in treating Peterson’s first-degree robbery conviction
as a crime of violence.
C. Reckless Endangerment During Flight
Sentencing Enhancement
The district court did not abuse its discretion in applying
a two-level enhancement for reckless endangerment during
flight under section 3C1.2 when calculating Peterson’s
guidelines range. See United States v. Reyes-Oseguera,
106 F.3d 1481, 1483 (9th Cir. 1997) (“We review the district
court’s application of the Sentencing Guidelines to the facts
for an abuse of discretion.”). This enhancement may be
applied if the defendant “recklessly created a substantial risk
of death or serious bodily injury to another person in the
course of fleeing from a law enforcement officer . . . .”
U.S.S.G. § 3C1.2. “During flight” is construed broadly, and
includes conduct “in the course of fleeing,” id., in
“preparation for flight,” and “in the course of resisting
arrest.” U.S.S.G. § 3C1.2 cmt. n.3.
The district court found that Peterson’s actions during
transport to the jail were “very dangerous and created a
substantial risk of harm” to the officers. Specifically,
Peterson, who was in double restraints, began violently
kicking the windows in the rear compartment of the patrol
car. Peterson failed to heed commands to stop kicking and
was pepper sprayed. This subdued him only temporarily,
however, and he soon resumed violently kicking the rear
windows. Fearing that Peterson would kick out the rear
window and attempt to escape, thereby potentially causing a
collision on the interstate, the officer moved across multiple
lanes of traffic to pull off the interstate and reapply
UNITED STATES V. PETERSON 15
Peterson’s restraints. We find that the district court did not
abuse its discretion in applying the sentencing enhancement
because Peterson’s actions reasonably can be construed as
being “in preparation of flight,” and because these actions
reasonably could be viewed as presenting a substantial risk
of harm to the officers and others on the interstate.
III. Conclusion
For the foregoing reasons, we affirm the district court’s
denial of Peterson’s motion to suppress, reverse the district
court’s finding that Washington first-degree robbery
constitutes a crime of violence under sections 2K2.1(a)(2)
and 4B1.2, and affirm the district court’s application of a
two-level enhancement for reckless endangerment during
flight under section 3C1.2. Accordingly, we vacate
Peterson’s sentence and remand for resentencing.
AFFIRMED in part; REVERSED in part, and
REMANDED.