FILED
NOT FOR PUBLICATION
MAR 30 2018
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 16-30286
Plaintiff-Appellee, D.C. No. 2:14-cr-00166-RMP-1
v.
MEMORANDUM*
TIMOTHY BINFORD,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Washington
Rosanna Malouf Peterson, District Judge, Presiding
Argued and Submitted March 5, 2018
Seattle, Washington
Before: RAWLINSON, CLIFTON, and CHRISTEN, Circuit Judges.
Timothy Binford appeals the sentence imposed on him by the district court
following his jury trial conviction for unlawful possession of a firearm. We affirm.
We have already held that a conviction for felony harassment (threat to kill)
under Wash. Rev. Code § 9A.46.020(2)(b) is categorically a conviction for a
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
crime of violence. United States v. Werle, 877 F.3d 879, 884 (9th Cir. 2017).
Binford acknowledges that decision but argues that our earlier decision in United
States v. Valdivia-Flores, 876 F.3d 1201 (9th Cir. 2017), stands for the proposition
that no Washington state conviction can serve as an aggravated felony at all. See
id. at 1208–09. We are bound by our decision in Werle. The panel that rendered
that decision was aware of Valdivia-Flores and nonetheless concluded to the
contrary.
We have also held that a conviction for armed bank robbery under 18 U.S.C.
§ 2113(a), (d) is categorically a crime of violence. United States v. Watson, 881
F.3d 782, 786 (9th Cir. 2018).
The issue that remains is whether the district court erred in enhancing
Binford’s advisory guideline sentencing range under U.S.S.G. § 2K2.1(b)(6) for
possession of a firearm in connection with another felony offense. Application
Note 14(A) to the relevant Guideline states that subsection (b)(6)(B) “appl[ies] if
the firearm or ammunition facilitated or had the potential of facilitating, another
felony offense . . . .” (Emphasis added.) The district court found a sufficient
factual connection to support application of the enhancement. The district court’s
finding was not clearly erroneous. Binford possessed debit cards and credit cards
in the names of other individuals. The contents of Binford’s bag included the
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firearm, drug paraphernalia and traces of methamphetamine, and items that were
described as a “‘Burglary 101’ toolset.” Beyond the proximity of those items, the
district court cited witness statements that connected Binford and his firearm to
burglaries and robberies, and observations of Binford going into a pawn shop and
engaging in other activity consistent with burglary and identity theft. The finding
that the firearm had the potential for facilitating a burglary was not clearly
erroneous.
AFFIRMED.
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