659 F. App'x 386
9th Cir.2016Background
- In Oct 2014 Tate had an altercation with ex-girlfriend Tiffany McCollom; she told 911 and police Tate hit her on the head with a gun. Tate was arrested and recorded jail calls urging her not to testify.
- A grand jury charged Tate with being a felon in possession of a firearm (18 U.S.C. § 922(g)(1)); he pleaded guilty without a written plea agreement.
- At sentencing the government sought two Guidelines enhancements: (1) base offense level 20 under U.S.S.G. § 2K2.1(a)(4)(A) because Tate had a prior robbery conviction qualifying as a “crime of violence,” and (2) a § 3C1.1 obstruction-of-justice enhancement based on recorded jail calls.
- The district court held an evidentiary hearing, found the enhancements applied (ultimately by clear and convincing evidence), and sentenced Tate to 120 months (top of the Guidelines range).
- Tate appealed, arguing (1) his prior California robbery (§ 211) is not a crime of violence post-Johnson, (2) procedural errors at sentencing (standard of proof and factual findings), (3) improper use of jail calls for obstruction, and (4) substantive unreasonableness of the sentence.
Issues
| Issue | Plaintiff's Argument (Tate) | Defendant's Argument (Government) | Held |
|---|---|---|---|
| Whether CA § 211 robbery is a "crime of violence" for U.S.S.G. § 2K2.1(a)(4)(A) after Johnson | § 211 robbery does not categorically qualify post-Johnson; remand required | Becerril-Lopez controls: § 211 necessarily involves generic robbery or extortion, both listed as crimes of violence in § 4B1.2 | Affirmed: § 211 qualifies; no remand needed |
| Standard of proof for sentencing enhancements (preponderance vs. clear and convincing) | District court used preponderance; should have used clear and convincing | Even if error, court ultimately found enhancements by clear and convincing evidence, so harmless | No plain error; harmless because findings met clear-and-convincing standard |
| Sufficiency of factual findings for weapon-in-connection enhancement (domestic battery with deadly weapon) | Government failed to prove Tate committed battery with a deadly weapon | Credible evidence (911 call, victim statements to officers) supported finding he hit victim with a gun | Findings not clearly erroneous; enhancement proper |
| Whether obstruction enhancement under § 3C1.1 can be based on calls about the battery (not the federal firearm charge) | Calls concerned battery and predated the firearms investigation; so no connection to instant offense | Battery involved use of the firearm; calls indicate Tate knew gun was being investigated, linking obstruction to the federal offense | Enhancement proper: obstructive conduct related to the felon-in-possession offense |
| Substantive reasonableness of 120-month sentence | District court gave insufficient weight to mitigation and over-weighted criminal history/pending state sentence | Court considered § 3553(a) factors and relied on recidivism, deterrence, and public danger | Sentence within Guidelines and not an abuse of discretion; substantively reasonable |
Key Cases Cited
- Johnson v. United States, 135 S. Ct. 2551 (2015) (held the ACCA residual clause void for vagueness)
- United States v. Becerril-Lopez, 541 F.3d 881 (9th Cir. 2008) (held CA § 211 robbery categorically a crime of violence for Guidelines purposes)
- Molina-Martinez v. United States, 136 S. Ct. 1338 (2016) (harmless-error principles for Guidelines calculation)
- United States v. Lato, 934 F.2d 1080 (9th Cir. 1991) (connection required between obstruction and the instant offense)
- United States v. Carty, 520 F.3d 984 (9th Cir. 2008) (standards for reviewing substantive reasonableness of a sentence)