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.