United States v. Patrick Innie

(1992), district we held reasons for of its statement written court’s satisfied sentence

choosing particular Johnson, how- 3553(c). The statement defendant’s particular ever, discussed served background, and and characteristics 3553(e) A statement.5 purposes of the not sentencing form is boilerplate on a circle consideration the individual equivalent of 3553(c) Upshaw. by required sentences on vacate Wilson’s We therefore resentencing 2 and remand counts expressly open a statement with outlined sentencing factors considers the 3553(a). PART, IN IN VACATED AFFIRMED PART, REMANDED. AND America,

UNITED STATES Plaintiff-Appellee, Defendant-Appellant. INNIE, Patrick No. 92-50239. Appeals, Court States Circuit. Ninth April Argued and Submitted 5, 1993. Decided Oct. has not been def[endan]t explained heroin addiction 5. The written statement Johnson " requires public Protection able to master. four had that the defendant robberies, 'committed ” John- at the maximum.’ a sentence of release within a time each one short son, at 1173. driven previous All robberies. this on

842 fact to murder for hire is a crime of violence under the Sentencing Guidelines.

I Patrick Innie appear failed to pleading guilty

accessory after the fact to the commission of murder for hire in violation of 18 U.S.C. 3. A warrant was issued for his arrest. 16, 1989, On February Innie was arrested by the City Culver in Police the parking lot of West End Gardens Motel in Culver City, arrest, California. After his Innie con- sented to an interview with federal marshals. Upon being advised of his Miranda rights, Innie told the marshals that he using was his name, brother’s that he staying was in room motel, 4 at the that he was driving a 1977 Cadillac, and that he was supporting himself by “cooking meth.” He said that there was a bag black guns with two in it in bed his motel room. Innie told the marshals that the barrel of one of guns had been con- verted from a 10 millimeter to a .45 caliber gun and that the other was a small semiauto- matic. He said that there would be metham- phetamine in refrigerator. Innie admit- ted, addition, that there was a case in the trunk of the Cadillac which sight- contained a ing scope and a 10 gun millimeter barrel. Innie also told that marshals there would room, abe woman in the that he had met her Vegas before, in Las about a week she James, Francis Deputy J. Federal Public only knew him as “Mike” and that she knew Defender, CA, Angeles, Los for defendant- nothing guns about the drugs. appellant. After receiving consent, Innie’s en- law Villeza, Rob B. Atty., Asst. Ange- Los forcement officers searched the motel room les, CA, for plaintiff-appellee. and the Cadillac. The registered room was Appeal from the United States District (or Winnie).” to “Clifford Innie In motel Court for the Central District of California. room, by bed, the officers found a black bag containing guns Innie had described. WALLACE, Before: Judge, Chief refrigerator freezer, In the and they found FERNANDEZ, O’SCANNLAIN and Circuit quart-size glass five containing liquid bottles Judges. methamphetamine glass and a bottle contain- They acetone. also found a serrated O’SCANNLAIN, Judge: Circuit spatula, blades, razor paper, litmus a heat We decide must whether a sentencing lamp, plates, two propane tank, a hot a de- a determine convicted defendant’s sealing bags, vice for beaker, a glass glass offense upon level based the total baking dishes, funnel, volume of a plastic a small and containing methamphetamine marijuana amounts of methamphet- and and whether Cadillac, after the In amine. the trunk of the Penagos, F.2d States v. containing sighting United a tool box found officers (9th Cir.1987). numerous rounds gun scope for a also found digital scale was A ammunition. the evidence Innie concedes addition, In car. trunk of the in the Indeed, he possession. to show sufficient from Las Ve- that a woman indicates record again in court and the district argued before at the time of motel room gas was in the was sufficient that the evidence his brief search. methamphet manufacturing him of convict trial, convicted, jury Innie was 841(a)(1). § in violation of U.S.C. amine metham- to distribute possession with intent event, compels his con any the evidence in violation phetamine readily jury could A cession. reasonable (Count 841(a)(1) One); carrying of and use doubt, knowingly find, beyond any crime during drug-trafficking a firearm methamphetamine. See Unit possessed 924(c) (Count Two); violation of 18 U.S.C. Hernandez, ed States firearm possession being a felon (9th Cir.), (Count 922(g)(1) of 18 U.S.C. violation (1989); 107 L.Ed.2d Three); fugitive possession being a Castillo, 922(g)(2) in violation a firearm Cir.1988). Four). (Count to a total He was sentenced however, that the evi argues, Innie prison. 420 months of to dis intent insufficient to show dence was unavailing. argument is The His tribute. II support for Innie as his lone case cited was insuf- that the evidence Innie contends Solis, v. argument, United States meth- possession him of convict ficient to (where (9th Cir.1988) 307, indictment 309 the’ intent to distribute.1 amphetamine with manufacturing, in charged defendant with sufficiency of evidence to “We review posses jury could convict for struction by viewing the support a criminal conviction variance), inapposite. sion constituted fatal light favorable to the in the most evidence Moreover, than suffi is more the evidence ‘any determining whether prosecution and that Innie intended to cient to demonstrate found the fact could have rational trier of may drug. juryA infer the distribute beyond a crime of the essential elements a controlled substance to distribute intent ” Garza, doubt.’ reasonable Smith, v. quantity alone. United States from (quoting F.2d 552 980 (9th Cir.1987). Innie F.2d 1170 307, 319, 99 Virginia, 443 U.S. v. Jackson methamphetamine, grams of possessed 3388 (1979)). 2781, 2789, L.Ed.2d 560 Moreover, 33,880 produce doses. enough to sufficiency of the evi- reviewing “When may inferred that an reasonably be “[i]t dence, jury re- must ‘assume we drugs something possessor of has armed in manner which ... all matters solved personal use.” than mere more mind (citation omit- verdict.’” Id. supports the Tarazon, v. United States ted). Cir.1993) (9th v. (quoting (9th Cir.), Savinovich, F.2d in with the possession The crime of 109 S.Ct. methamphetamine has tent to distribute (1988)). guns had two Innie States elements. See United three essential (9th Cir.1991). Intent to distribute also possession. his Ocampo, presence packaging from beyond be inferred prove a rea government The must Martinez, (1) materials. United States know that the defendant sonable doubt Cir.1992). (2) Officers methamphetamine, ingly, possessed the id.; in the Cadillac and a digital (3) found scale it. See an intent to distribute with government rested and by framing 29 after the his R.Crim.P. confusion evidences some 1. Innie Therefore, challenge again a sen- has sufficiency as at the end of trial. of the evidence fact, government points tencing sufficiency as the properly issue. In of the evidence raised a out, for Innie's motion the district refused claim. acquittal Fed. entry judgment under distributed, motel room. sealing bags rather than the device amount of fundamentally, during pure drug involved, Finally, and most his is used to determine marshals, length implement interview Innie admitted of the sentence. To by “cooking supporting himself principle, Congress that he mandatory set meth.” minimum corresponding sentences to the weight of a “mixture or substance contain- readily of fact could a rational trier ing a detectable amount of’ the various of 21 find all the essential elements controlled substances.... It intended the 841(a)(1) beyond a reasonable doubt. penalties drug trafficking gradu- to be according weight drugs ated to the Ill they in whatever form found —cut or [are] Innie contends that the district court uncut, pure impure, ready for wholesale by calculating erred the base offense level for ready for distribution at the retail level. upon the Count One based entire amount of (citations at -, Id. 111 S.Ct. at 1925 omit liquid containing methamphet mixture ted). Therefore, the Court concluded that amine, portion, rather than the consumable plain dictionary meaning given should be because, arrest, at the time of sub his “the at -, to the term “mixture.” Id. hardly any stance would be marketable or of contends, however, at 1926. Innie that it is quantity.” consumable The metham apply plain language- irrational to phetamine mixture found in the motel room Guidelines this ease because to do so eight percent pure. was four to would be to create the kind of plain language of the Guidelines clear disparity designed that the Guidelines were ly requires any that “if a com to avoid. any pound contains detectable amount of a argues Innie that him based substance, controlled the entire amount of upon the entire amount of the mixture is compound the mixture or shall be considered (1) irrational manufacturing because had the measuring quantity.” the U.S.S.G. process progress comple- been allowed to to (1988). Moreover, § 2D1.1 n.* this court has tion, pure a much smaller amount of meth- error, rejected the contention that it is amphetamine actually pro- would have been applying statutorily the mandated minimum (2) mixture, duced and because the in the sentence, for a district court to use the entire found, only form in which it was contained weight methamphetamine solution that methamphetamine along small amount of yet readily marketable. United was not by-products with unreacted chemicals and Beltran-Felix, States v. — poisonous ingested. both of which are if The (9th Cir.1991), ---, 1076-77 U.S. argument per- Sixth Circuit found this to be (1992). 112 S.Ct. 117 L.Ed.2d 123 Jennings, United States suasive however, argues, that we should reconsider (6th Cir.1991). F.2d 129 plain language both the of the Guidelines and Beltran-Felix light Supreme the Jennings, In the Sixth Circuit held that Chapman v. United decision in Court’s legislative intent the sentenc- — States, -, of both 21 and the scheme U.S.C. compels limiting Sentencing Guidelines Chapman, Supreme In held that Court methamphetamine amount of to amount customarily paper the “blotter used to dis- capable producing. that the defendant tribute is a ‘mixture or LSD[] substance Jennings Id. at 137. The distinguished containing a detectable amount’ of un- LSD” Chapman dilutant, grounds that a on the at-, 841. Id. der cutting agent, carrier medium increases conclusion, reaching at that drug the amount of that a defendant has that Court noted appropri- it available to sell and is therefore subject

Congress adopted ap- punishment a “market-oriented” ate to the defendant to Id. weight proach punishing drug trafficking, to un- for the entire of the mixture. quantity The der which the total of what is court stated comment, panel passing previous only a In a contained small [i]f [container] rejected methamphetamine appears mixed to- to have the Sixth this court amount of chemicals poisonous Jennings opinion unreacted and reaffirmed gether with Circuit’s Robins, have been no by-products, there would States v. Beltran-Felix. See United (error mixture could be dis- possibility that the stage At this to consumers. tributed weight cornmeal to determine include manufacturing process, cocaine). the defendants court fol quantity of The Robins attempting increase the were not Rolande-Gabrtel, applying Acosta and lowed they had methamphetamine amount of easily separated and distin principle dilutant, by adding a cut- available to sell a mix guishable substances do not constitute medium, carrier but rather ting agent, or mixing purpose of ture or solution where the methamphet- distill attempting to were drug is to mask the rather the substances by- uningestable the otherwise amine from facilitate distribution. Id. 1389-90. than to manufacture. products of its However, suggested that a the Robins court methamphetamine Jennings containing liquid court concluded Id. contrary to the mixed with a illogical and than cocaine it was both was different pun- agent the defendants like corn legislative readily separable packaging intent to hold weight of the mixture mixture was ishable for the entire meal because the entire they produced that could have neither metham necessary production when methamphetamine nor distributed amount of phetamine. Id. methamphet- containing the the mixture this circuit government points out that remanded the amine. Id. at 136. The court apply plain language of has continued to evidentiary the district court for an case to in metham the statute and the Guidelines properties chemical hearing to determine the subsequent phetamine cases decided mixture. See, Bres Chapman. e.g., argument entire amount of Innie’s that the (9th Cir.1991). sette, In Bres 947 F.2d 1361 considered because it the mixture cannot be sette, rejected appellant’s con this court ready at either the was not for distribution version of the foot tention that the amended support finds further wholesale or retail level with 2D1.1 was inconsistent note to section Acosta, We refused purposes of the Guidelines.2 (cocaine (2d Cir.1992) dissolved 554-55 by the appellant’s sentence to determine (“under mar- liqueur importing) creme mixture, rather than weight of the mixture is approach, when the ket-oriented methamphetamine con pure of the amount (and ingestible therefore not market- not mixture, footnote “[t]he tained in the because able), is no reason to base a sentence there its face perfectly clear and consistent on is mixture”), weight useless on the entire of a beyond go not interpret it we need and to Rolande-Gabriel, 938 and United at 1362. words themselves.” Id. (11th Cir.1991) (irrational to follow the courts have refused Other mixture weight entire of cocaine consider opinion in metham Jennings Sixth Circuit’s obviously unusable while mixed with that was phetamine In States v. Walk cases. material). interpret liquid Those cases waste (5th Cir.), er, cert. de proposition Chapman standing for the as , — -, 113 S.Ct. weight the entire

that it is rational include nied (1992), Fifth Circuit rejected only mixture is a mixture where that effectively Chapman over the assertion in the chain of distribution. Waste usable requiring use of from, precedent circuit’s ruled that distinguished “easily material that is liquid contain from,” weight total substance ingestible portion separated calculating methamphetamine in a defen drug not considered. See of the should be 2D1.1, offense level under section dant’s base id. weight the mixture or substance use the entire 2. The footnote to 2D1.1 was amended in pure methamphetamine, weight specifically provide or the of the that to determine the of- 1.1(c) greater. 2D n.* is U.S.S.G. or substance whichever fense level in the case of mixture containing methamphetamine, should disparity by allowing despite liquid risk of the fact that most of the doing so, purity deciding waste material.3 In the court ex court to consider both in plicitly Jennings guidelinerange refused to follow and Ro where within the to sentence by providing upward lande-Gabriel. Id. at 412 n. 5. The Walker a defendant and for an Chapman departure unusually high court reasoned that did not involve if the mixture is of purity.5 Baker, methamphetamine; liq 883 F.2d at 15. be nor did it involve a Moreover, drug likely pure, uid. Id. at 412. the court noted cause the to be more language Chapman caught prod that much of the ally supports actu manufacturer with the finished necessarily the conclusionthat it is rational uct will not receive a lesser sen liquid tence than one arrested with the same to consider the total amount of a mix containing methamphetamine. methamphetamine ture Id. amount of in a solution of greater weight. Finally, total Id. unlike a agree We with the Fifth Circuit. The packaging agent liqueur mere like the creme plain unambiguous language of the Robins, in Acosta or the cornmeal in requires Guidelines that the entire amount of entire mixture can be said to facilitate containing a mixture or substance a detecta methamphetamine the distribution of be methamphetamine ble amount of be used.4 methamphetamine cause the could not have Chapman, Supreme applied In Court produced Robins, been without it. plain language of the statute in a more am biguous context than we face here. Whether at 1390. short, Innie has failed to convince us Congress paper intended that blotter used to application plain language distribute LSD be considered a "mixture or Guidelines is irrational. The district court substance" is much less clear from the lan by calculating did not err Innie's offense guage of the statute than whether the entire upon level based liquid the total volume of the methamphetamine volume of a mixture containing methamphetamine. Indeed, Chapman, should be considered. Supreme expressly distinguished Court `V between the methamphetamine. Chapman, treatment of LSD and at -, - U.S. grant The district court refused to 1924; Sherrod, 111 S.Ct. at see acceptance responsi Innie a reduction for F.2d at 1510. bility. Under the Guidelinesin effect at the sentenced, appears time Innie was a reduction for The Guidelines scheme to be con- Congress's impose acceptance responsibility sistent with directive to was warranted quantity pu- clearly sentences based on rather than "if the defendant demonstrates a rec rity. Baker, ognition acceptance per See United States v. and affirmative (5th Cir.), responsibility sonal for his criminal conduct." 3E1.1(a). (1989); U.S.S.G. Whether or not a de 107 L.Ed.2d 518 see Chapman, -, accepted responsibility also 1925. The Guidelines scheme lessens the - U.S. at 111 S.Ct. at fendant has for his crime is a factual determination to which the weight containing 3. The Fifth CircuitreaffirmedWalkerin United the total Sherrod, 1501, (5th methamphetamine pur- Statesv. 964 F.2d 1509-11 is inconsistentwith the Cir.), denied, -, 832, pose cert. - U.S. 113S.Ct. of the Guidelines. Under the versionof (1992) dismissed, effect, pro- 121L.Ed.2d701 and cert. - § 2Dl.l nowin the Commissionhas U.S. -, 834, (1992) separate pure 113S.Ct. 122L.Ed.2d111 vided phetamine. offenselevelsfor metham- -, 1367, and cert. - U.S. 113S.Ct. denied, require TheGuidelinesnow the sen- (1993) 122L.Ed.2d745 andcert. - U.S. tencing court to "use the offenselevel deter- -, The First Circuithas alsorefusedto followJen (1993). 113 S.Ct. 122 L.F.d.2d791 by weight mined the entire of the mixtureor by substanceor the offenseleveldetermined the nings or Rolande-Gabriel.See UnitedStatesv. weight pure methamphetamine, ... Lopez-Gil, (1st 1128-29 Cir. greater." 2D11(c) § whicheveris U.S.S.G. n.~'. 1992),op. part grounds withdrawnin on other (considering weight net of cocainemixedwith § 5. The 1989amendmentto 2D1.1lessensthe fiberglass material). suitcase disparityby providing separate riskof calculus pure methamphetamine. § 4. TheNovember 1989amendmentto 2D1.1 See U.S.S.G. 2D1.l(c)fl*; infra, using § see also n. 4. furtherunderminesInnie'scontentionthat pleading guilty, the or for not applies. tence interview of review clearly standard erroneous Gonzalez, carry burden of demon- must F.2d defendant v. United States Cir.1990). responsibility. (9th judge acceptance of sentencing strating the “The Herrera-Figueroa, 918 v. the defen- States unique position to evaluate See United in a J., (Leavy, For this acceptance responsibility. F.2d of dant’s dissenting part). reason, concurring part and the determination great deference judge is entitled district court’s Because of the on review unless not be disturbed should regarding unique position, its determination (quoting U.S.S.G. Id. without foundation.” not to be dis responsibility is acceptance of comment, 5)). (n. 3E1.1, it is without turbed “unless foundation.” to law argues that his admissions Innie Aichele, F.2d v. States United arrest at the time of his officers omitted) enforcement Cir.1991) (9th (emphasis (quotation responsibility. acceptance his demonstrate identified sev original). The district court voluntary and made truth- appears It that he contri that were inconsistent with eral facts meaning of the within the ful admissions Al guilt at trial. Innie denied his tion. commentary to section 3E1.1. U.S.S.G. may manifest a sincere though a defendant comment, (n. 1(e)). 3E1.1, He told if exercises his constitu contrition even he running, admit- tired of marshals that he was trial, put the right his decision to tional cooking methamphetamine, consented ted to proof trial government to its burden of at car, and told room and to the search his guilt may denying be essential elements they find exactly where would the marshals acceptance responsi with an inconsistent drugs. His admissions guns and the comment, (n. 3E1.1, bility. See U.S.S.G. prov- government had made before the were 2); at 710. Restrepo, 930 F.2d see also case at trial. en its Cf. Moreover, the district court was entitled (9th Cir.1991); Restrepo, to discuss the that Innie refused consider comment, (n. 3E1.1, 1(g)) see also U.S.S.G. not probation officer and did ease with the (the is relevant to timeliness of admissions evidencing remorse at the make a statement responsibility). acceptance of Aichele, at sentencing hearing. See 710; 767; Restrepo, 930 F.2d sentencing, At the district Skillman, 1378-79 States rejected implicitly Innie’s contention his — dismissed, -, Cir.1990), accep pre-trial demonstrated admissions 353, 116 L.Ed.2d 275 responsibility, stating: tance of guilty. his ease. He pled not He tried He inculpatory that Innie made The fact proceedings guilty. During the was found not neces to the marshals does admissions Officer, he refused to the Probation with sarily that he was remorseful demonstrate the Probation Offi- discuss the matter with review, we the standard of contrite. Given demonstration of cer. there is no clear So that the district court’s deni cannot conclude acceptance affirmative recognition and request for a two-level reduction al of Innie’s any regard. responsibility clearly responsibility was acceptance of argues he was not response, erroneous. presentence review with bound to submit to Moreover, notes that probation officer. he V binding on the presentence report is not Innie as The district court sentenced sentencing court correct. The court. He is 4B1.1 of the offender under section a career judgment to resolve independent its must use so, assigned doing the court Guidelines. v. the issues before it. See United States According level of 37. Innie a base offense (9th Cir.), 1092, 1099 cert. Belgard, 894 F.2d 4B1.1, to section 860, 164, denied, 111 112 S.Ct. (1) (1990). if a career offender defendant is argument [a] Innie’s misses L.Ed.2d 129 eighteen years old at least mark, Although defendant was a district however. (2) offense, of the instant failing at the time may punish a defendant for not felony conviction is a presen- instant offense of fact-gathering at a participate

849 of violence presents is either crime or a involves conduct that a serious (3) offense, potential physical injury controlled substance risk of to another. felony defendant has at least two 4B1.2(1) (1991). § U.S.S.G. “The amend convictions of either a crime of violence or emphasis ment analysis shifted the from an a controlled substance offense. charged the ‘nature’ of the crime to an analysis undisputed charged It is that Innie meets the of the elements of the first crime requirements or charged two of section 4B1.1. whether the actual ‘conduct’ of contends, however, presented the defendant the district court a serious risk of physical by injury to finding prior felony erred that his convic another.” United States v. Sahakian, (9th Cir.1992). 740, accessory tion as an after the fact to murder 965 F.2d 742 that, hire We have since was a crime of violence. We review held under the current Guidelines, version of the determining “[i]n district court’s determination that Innie whether an offense career offender de novo. United States ‘involves conduct that (9th Becker, 568, Cir.1990), presents potential a serious physical 919 F.2d 570 risk of another,’ 911, injury 4B1.2(l)(ii), § U.S.S.G. may courts consider the definition may of the crime and also consider the con February Innie was arrested on ‘expressly charged[] duct in the count of which, ongoing, because the crimes were which defendant was convicted.’ the date of commission of the offenses comment, (n. 4B1.2, 2).” § U.S.S.G. charged in this case. He was sentenced on Young, States v. 990 F.2d Cir. March 1992. The version of the Guide- 1993). application Because of the Guidelines lines effect at the time of Innie’s 1989 sentencing effect at the time of Innie’s arrest defined the term “crime of violence” Innie, would result in a harsher sentence for by reference to 18 U.S.C. under prohibits the Ex using Post Facto Clause 4B1.2, section a crime of violence was those Guidelines. See United States v. War (a) an offense that an has as element the ren, (9th Cir.1992). 980 F.2d For use, use, attempted or threatened use of reason, government concedes that physical against person prop- force or applicable Guidelines are those that were another, erty of or in effect at the time the offense was commit (b) any felony other offense that is a ted. that, nature, its involves a substan- Guidelines, Under the 1989 we must physical against tial risk that force apply ‘categorical approach’” the “so-called person property of another be used predicate to determine whether Innie’s con committing in the course of the offense. viction as fact to mur (1988); Becker, see also der for hire was a crime of violence. See 569; O’Neal, United States v. 937 Becker, so, doing 919 F.2d at 570. In we “do (9th Cir.1990). specific not look to the which occa conduct Guideline 4B1 was amended effec conviction, only sioned but to the [Innie’s] 1, 1989, subsequent tive November Id.; statutory definition of the crime.” see date that Innie committed the offenses at Selfa, also 918 F.2d issue here. The amendment eliminated all (9th Cir.1990) (applying categorical ap reference to 18 U.S.C. 16. See United O’Neal, proach); United States v. O’Neal, 1374 n. 8 (same); Young, cf. (9th Cir.1990). The amendment effect at (examining charged F.2d at 472 actual con the time of Innie’s Guidelines). redefined duct under current crime of violence to be an offense that (i) use, attempted has as an element the A

use, physical or threatened use of force i (ii) against another, person is a (a) arson, extortion, inquiry, burglary dwelling, begin of a or We our under subsection § explosives, by asking whether the involves use of or otherwise of 18 U.S.C. use, against the an offense who has an the committed offense has as element predicate prevent in to hinder or use, order physical of United States attempted or threatened use in- punishment apprehension, trial or property of an- his person or against the force every that risk in case volves a substantial other. Becker, 919 may used. physical force be Cf “an ‘ele court has defined This (in degree every first n. 5 case of F.2d at 571 part’ of “a of a crime” as ‘constituent ment’ risk force will burglary there is a substantial proved by the must be which the offense property of a against person the or be used every a convic in case to sustain prosecution Thus, dwelling). the occupant of the lawful given a statute.” United tion under a accessory cannot be considered offense Cir.1988) 996, 1010 Sherbondy, 865 F.2d in 18 U.S.C. violence as defined crime of 924(e)(2)(B)(i)).6 § (applying 18 U.S.C. 16(b). § “[w]hoever, knowing provides § that U.S.C. has against the States that offense United an B relieves, committed, receives, comforts been argues we government to hinder or the offender order or assists underlying In the offense should consider punish apprehension, or prevent his trial accessory of conviction to be an element nie’s ment, accessory after the fact.” 18 is an words, accessory the offense. In other the element, require, § not as an 3 does U.S.C. predi government us to consider Innie’s asks use, use, attempted use of the or threatened “accessory an cate conviction to have been as person property physical against the force ” rather fact murder hire after the use or threat of Nor must the of another. “accessory after the fact.” Under than as an every case to sustain a proven force be government’s theory, the defi the accessory after the fact. as an conviction accessory as an offense nition of the includes Thus, accessory crime of offense is a not underlying of element violation 16(a). § as defined 18 U.S.C. violence argument has government’s fense. The underlying appeal. some Commission ii as an prerequisite a for conviction offense is whether, by its next must ask We accessory the fact. after nature, a risk the offense involves substantial Nava-Maldonado, F.Supp. against person or force physical (D.Nev.1983); Bala see also United States v. may property of another be used (10th Cir.1979), no, 624, 633 618 F.2d 16(b). § commission. 18 of its U.S.C. course above, apply we the Guide noted because As reason, an in For that L.Ed.2d prior to the lines in effect November accessory after charging one as an dictment amendment, inquir prohibited from we are underlying offense as plead fact must actually charged. In the conduct into accessory offense. See well as the whether, stead, generically, may only we ask (1st McLennan, States accessory the fact an the crime Cir.1982). in against an the United States offense ease, the offense Innie’s physical force this a substantial risk volves fact as an after the simply conviction used in its commission. We be that, nature, of 18 receiving, murder for hire violation say U.S.C. its cannot theory, government’s § comforting assisting someone 1959.7 relieving, Under (em- 924(e)(2)(B)(i) § "category” another....” help what 6. To define constitutes Guidelines, added). language purposes phasis of both sec- conduct for criminal interpreting the determining circuit has looked to cases requires this tions "elements” language nearly Career identical Armed given crime. Becker, Act, 18 U.S.C. 924. Criminal (i) Career Subsection of the Armed 1952B), (formerly § it 7. Under U.S.C. 1959 Act, 924(e)(2)(B), identi- is Criminal maim, murder, kidnap, crime to federal (a) U.S.C. 16. Subsec- cal to subsection of 18 dangerous weapon, as- commit assault with (i) felony provides have that a violent must tion bodily injury, resulting or threat- in serious sault use, use, attempted or threat- "as element the violence, receipt a crime of en to commit against person physical use of force ened 851 inquiry the elements of Innie’s conviction as a limited into the charged facts in (1) information). the commission of a murder would include the indictment or On the other by hand, in of for hire violation 18 U.S.C. 1959 that, suggest some of our cases under (2) individual; another the defendant’s categorical approach, the we can look to the (3) offense; knowledge and of assistance charging papers jury instructions the by prevent after the fact the defendant to the purpose limited determining the nature of trial, apprehension, punishment or of the of- predicate a offense where an offense has 1959; §§ fender. See 18 U.S.C. 3 and see permutations. various See United States v. 1463, Lepanto, also United States v. Mendez, (9th Cir.1993) (10th Cir.1987) (defining the elements of (deciding conspiracy whether to rob is a statute). accessory Taking govern- 924(c)); crime of violence under section see approach, ment’s we should then ask whether States, Taylor also v. United 495 U.S. being accessory an fact after the to murder 2143, 2160, 109 L.Ed.2d 607 (a) use, for hire has as an element the at- (1990) (in 924(e), the context of section sen- use, tempted physical or threatened use of tencing go beyond court can the mere fact of against person property force or an- range conviction in a narrow of cases where (b) nature, other or its involves a substan- jury actually required to find all the physical against per- tial risk that force felony). elements of a violent We leave for property son or of another be used in day question another whether we can the course of its commission. charging papers look to the to determine the underlying accessory offense to an after the previ It is not clear whether our conviction, fact because we conclude below prevent employing ous cases us from that, government’s approach, even under the government’s proposed approach. A viola being accessory an after the tion of 18 U.S.C. 1959 is not a constituent fact to murder part accessory offense which for hire is not a crime of must be violence as defined proved by prosecution every case to the 1989 Guidelines. accessory

sustain conviction under the stat ute; § merely requires proof 18 U.S.C. i that some federal offense has been commit Thus, prior ted. to determine that a government’s pro convic Under accessory posed tion as an after approach, the fact included we first must ask whether might being the violation of 18 accessory we an after the fact to murder has, element, beyond use, have to look attempt the certified record of for hire an as use, charging papers jury conviction to the physical ed or threatened use of force Preston, against person property instructions. See United States v. of another. (3d denied, Cir.1990), cert. Even if the murder hire of S.Ct. L.Ed.2d fense is considered to be an element of the (1991); offense, Taylor, accessory culpability United States v. for the murder (using accessory indict is not attributed to the defendant. offense), accessory ment to determine defendant’s defendant is liable for the act 2592, 110 receiving, relieving, comforting, or assist uncertain, force, ing are not for We how murderer the use ever, whether, Guidelines, under the 1989 we the murderer’s use of force. For that rea son, charging papers jury accessory can look to the an after the fact is not liable (whoever principal. § 2 instructions to determine the offense under as a Cf. aids, abets, counsels, commands, lying accessory certainly an conviction. We induces or precluded looking procures are from the actual the commission of an offense is charged particular punishable principal). conduct case. See as Becker, 570; Selfa, 919 F.2d at 918 F.2d at after the fact to murder for hire (defin 751; Young, see also 990 F.2d at 472 does not fit the definition of crime of violence (a) inquiry charged into actual conduct found subsection of 18 U.S.C. enterprise engaged racketeering activity. from an consideration 852 Thomp v. person); States from the United

ii 507, (point son, F.2d 511 891 being an must ask whether We next denied, 495 person), a cert. ing a firearm at hire, fact to murder for accessory after the 1957, 922, L.Ed.2d 319 109 U.S. nature, risk that by involves a substantial its that, persuaded simply are not We person property against the physical force fact case, accessory after the every being an in the course of its may be of another used risk for hire involves a substantial to murder contends that government The commission. of commission will be that force used known harboring and concealment accessory offense. necessarily poses a sub killer professional violence. On risk of continued stantial

basis, argues that conviction government iii accessory fact to murder after the as an points out that a government defen- The (b) of 18 U.S.C. falls within subsection hire a crime of conspires to commit who dant the situation creat recognize 16. We of violence abets a crime violence or aids and accessory an by convicted as someone ed Pres- of violence. See a crime has committed for hire includes the fact to murder after ton, (conspiracy to at commit 910 F.2d 86-87 offi of law enforcement potential reactions Morrison, 972 robbery); v. United States United parties. other third See and cials Cir.1992) 269, (9th (aiding and 270-71 F.2d (9th Sherman, 324, 328 v. States 928 destruction). govern- abetting malicious Cir.) (looking chance that law enforcement to accessory being argues that an after ment response there to officials will resort armed analogous. is to a of violence the fact crime others), security of cert. by posing risk to However, accessory being an the offense of — denied, -, 112 116 S.Ct. U.S. aiding from clearly different the fact is after Leavitt, (1991); States v. 100 United L.Ed.2d or abets abetting. one who aids and Unlike (1st Cir.1991) (defendant, 517 violence, accessory after the of an a crime officers, person might have or some other the commission fact does not aid in response); United hurt officers’ been Similarly, one unlike offense. Davis, 973, 976 881 F.2d States violence, crime of conspires to who commit Cir.1989) (victims may with measures react agree to accessory fact does not an after the situation), well escalate the Preston, the crime of violence. commit Cf. S.Ct. agree (conspirator must do F.2d at 86 (1990). Yet, obvi it is far from act). The Guidelines now an unlawful that, case, receiving, relieving, every ous the Guidelines effect reflect this difference: assisting murderer in comforting or “hired” “ of provide that ‘crime violence’ specifically prevent that murderer’s order to hinder or aiding and ... include the of abet- offenses punishment, involves a apprehension, trial or conspiring, attempting to commit ting, may be physical risk that force substantial comment, 4B1.2, such offenses.” U.S.S.G. anoth against person property of used Morrison, (n. 1); F.2d at 270-71. also see er. are when we com Our doubts confirmed is in the Guidelines of No mention made pare to be crimes of other crimes considered accessory after the being of an fact offense injury they risk of because of the violence short, proposed crime of violence. (vehicu O’Neal, 937 F.2d create. Cf. analogy fails. Sherman, F.2d at 327 manslaughter); lar (armed burglary premises); of commercial McDougherty, 920 F.2d United C (9th Cir.1990) (robbery), cert. denied at the effect time Under Guidelines 113 L.Ed.2d 227 arrest, crime of Innie’s 1989 (1991); Becker, (burglary at 573 919 F.2d § 3 accessory the fact under 18 U.S.C. after during daytime); a residence Cir.1992) Nor are we Parson, (3d not a crime violence. 955 F.2d

(reckless that, categorical ap- Leavitt, persuaded under endangerment); (oral threat); proach, being an fact at 517 States v. McVi Cir.1990) car, (1st Ac- (larceny hire a crime of violence. murder for 2-3 cordingly, we vacate the district court’s de- exception is limited to those situations where termination that Innie awas career offender language the statute defines itself Sentencing under the Guidelines remand crimes both violence and nonviolence. resentencing. Thus, in United Selfa, 918 F.2d 749 (9th Cir.), denied, cert. 498 U.S. (1990), L.Ed.2d 532 the district

VI court determined that the defendant’s two There was sufficient evidence convict to prior convictions for robbery bank in viola possession Innie of methamphetamine with 2113(a) tion § of 18 U.S.C. constituted crimes intent to distribute. sentencing judge of violence. The paragraph first of section properly into took account the amount entire 2113(a) prohibits bank robbery committed containing methamphet- “by violence, force and intimidation” amine. Denial of a two-level reduction for while the second paragraph criminalizes the acceptance responsibility clearly was not of entering act or attempting to enter a bank erroneous. The career offender status de- with intent to commit felony a in it. As we improper termination was being since an ac- Selfa, only discussed the first paragraph cessory after fact was not a crime of describes crime of violence. Id. at 751-52 violence. n. 2. & upheld Nonetheless we the district AFFIRMED part, part, VACATED in court’s decision to apply § U.S.S.G. 4B1.1 and REMANDED for resentencing. presentence because the report, upon “based a review portions of relevant of the record WALLACE, Judge, Chief concurring: prior convictions, including a review of the documents, charging ... I concur in majority opinion except for showed that this defendant had been convict section I join VB. cannot part this ed of actual robbery pursuant bank to the majority opinion, only and concur in its re- 2113(a).” first paragraph Id.; § of 18 U.S.C. sult. see Mendez, also United States v. 992 F.2d opinion very Our narrow: it concerns (9th Cir.1993) (hold {Mendez) 1490-92 only the Guidelines effect at the time of ing conspiracy to rob in violation of 18 U.S.C. Innie’s Under categorical arrest. ap § 1951 a crime of purposes violence of 18 proach Guidelines, of those we “not look 924(c) even though section 1951 also specific to the conduct” of which the defen conspiracy covers to among extort other convicted, dant was only “but to the statutory — crimes), denied, U.S. -, cert. 114 S.Ct. definition of the crime.” United States v. (1993). 126 L.Ed.2d 214 Likewise, in Becker, Cir.1990), Taylor States, 111 S.Ct. 2143, 2160, (1990), 109 L.Ed.2d 607 pleaded guilty to Supreme suggested Court that the accessory after the fact to murder for hire in violation of 18 U.S.C. 3. This categorical approach may permit ... provides “[wjhoever, statute knowing go beyond court to the mere that an against offense the United States has fact of conviction range a narrow committed, receives, relieves, been comforts jury eases where a actually required or assists the offender in order to hinder or to find all generic the elements of burgla- prevent apprehension, his punish trial or ry. example, For in a burgla- whose State ment, accessory is an agree after the fact.” I ry entry statutes include an automobile that, with majority statutory under this building, as well as a if indictment definition, accessory after the fact offense jury information and instructions show is not a Maj. crime of op. violence. at 851. that the charged defendant was with only

Our cases do burglary carve exception building, out limited jury and that the general to the rule that may only necessarily a court entry look had to find an of a build- to the fact of convict, conviction and then the the. Government should However, definition of the offense. be allowed to use the conviction for en- [pursuant 18 U.S.C. hancement 924(e)], added.)

(Emphasis acces not describe the 3 does per “using fact crime several sory after the mutations, any of which constitutes one Mendez, at 1490.

same offense.” applies Rather, statutory definition the same the fact every conviction nature of regardless of the offense, for whether it be murder federal categorical tax evasion. Under hire or therefore, go from we are barred approach, statutory definition of beyond the determining whether Innie’s offense accessory after the as an felony conviction a crime of vio murder hire was fact to for Indeed, interpretation any different lence. Young, leave United States would (9th Cir.1993), filed, petition 1993) (No. 93-5647), (U.S. superflu Aug. ous. America, Plaintiff-

UNITED STATES Appellee-Cross-Appellant, KILGORE, Raymond Lee Defendant- Appellant-Cross-Appellee. 92-30354,

Nos. 92-30383. Appeals, Court of

Ninth Circuit. September Argued and Submitted 14, 1993. Oct. Decided Abercrombie, Camiel, Mair, A. Cam- Peter WA, Rummonds, Seattle, for defendant-

iel & appellant-eross-appellee. WA, Seattle, Wiehl, Atty.,

Lis Asst. U.S. Justice, Fischer, Dept, of M. and Louis DC, plaintiff-appellee-cross- Washington, appellant.

Case Details

Case Name: United States v. Patrick Innie

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Oct 5, 1993

Citation: 7 F.3d 840

Docket Number: 92-50239

Court Abbreviation: 9th Cir.