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United States v. Peterson

United States Court of Appeals, Ninth Circuit

September 4, 2018

United States of America, Plaintiff-Appellee,
v.
Kevin Terrell Peterson, Defendant-Appellant.

          Argued and Submitted June 15, 2018 Seattle, Washington

          Appeal from the United States District Court Western District of Washington D.C. No. 2:16-cr-00150-RSL-1 Robert S. Lasnik, Senior District Judge, Presiding

          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.

          Before: Milan D. Smith, Jr., and Paul J. Watford, Circuit Judges, and Douglas L. Rayes, [*] District Judge.

         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 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.

          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 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 ...


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