F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
OCT 31 2001
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 00-4107
KENNETH J. WALTERS, also known
as Ken-Dog,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Utah
(D.C. No. 99-CR-513ST)
Edward R. Montgomery, Salt Lake City, Utah, for Defendant-Appellant.
Veda M. Travis, Assistant United States Attorney (Paul M. Warner, United States
Attorney, with her on the brief), Salt Lake City, Utah, for Plaintiff-Appellee.
Before EBEL, PORFILIO and HENRY, Circuit Judges.
EBEL, Circuit Judge.
Defendant-Appellant Kenneth J. Walters pled guilty to illegal possession of
a firearm after a domestic-violence conviction, in violation of 18 U.S.C.
§ 922(g)(9). On appeal, he alleges four errors: (1) the government violated due
process by failing to disclose reports relevant to his sentence enhancements; (2-3)
the district court erred by enhancing his sentence for possessing a stolen firearm
and for possessing a firearm in connection with another felony, see USSG
§ 2K2.1(b)(4), (b)(5); and (4) the district court failed to rule on his motion for a
reduced sentence due to the victim’s conduct, see USSG § 5K2.10.
We AFFIRM that the government did not violate Walters’s due process
rights. Further, we AFFIRM the district court’s decisions to enhance Walters’s
sentence. Finally, we REMAND for the district court to consider in the first
instance whether § 5K2.10 applies in this case.
BACKGROUND
A. The Assault, the Truck, and the Handgun
1. The Assault of Nickilynn Avery and Walters’s Arrest
On August 13, 1999, Salt Lake County Sheriff’s deputy Gene Van
Roosendaal responded to a domestic assault complaint in Kearns, Utah.
Nickilynn Avery (“Avery”) reported to him that Walters had assaulted her in his
camper, and that she had fled to a neighbor’s house only after Walters fell asleep.
Officers noticed that Avery had severe swelling and bruising on her arms, ear,
face, and the top of her head, as well as swelling, bruising, and puncture wounds
on her hands. Avery recounted that Walters had beaten her with his fists, and that
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the puncture wounds on her hands were made by the rings Walters wore, which
had protruding metal ornaments.
Avery told officers that Walters had been driving an older model red-and-
white pickup truck and was staying in a camper trailer parked next to his brother’s
house in Kearns. She warned the officers that Walters had a gun, was “out of his
mind,” and was addicted to methamphetamine.
Officers found the truck and the camper trailer at the address Avery had
given. The door to the trailer was open, allowing officers to see Walters sleeping
inside. After attempting to wake him by shouting through the open door, two
officers entered, physically woke Walters up, and placed him in handcuffs for
officer safety. Deputy Van Roosendaal asked him about the gun, and Walters
initially denied possessing it. Confronted with Avery’s statement to the contrary,
however, Walters admitted he had one under the front seat of the pickup truck.
The officers found it – a loaded, Ruger P89 9 mm semiautomatic handgun – as
well as three other 9 mm magazines in the cab of the truck. 1 Officers then
1
Walters suggests in his Opening Brief that the officers violated his
constitutional rights by arresting him without a warrant and by interrogating him
without having given him Miranda warnings. Indeed, as noted below, on October
15, 1999, Walters filed a motion to suppress the gun and his statements from that
night. The district court held an evidentiary hearing on his suppression motion on
January 12, 2000. Walters, however, changed his plea to guilty before the court
ruled on his suppression motion. Walters does not advance as one of his listed
issues on appeal that police violated his constitutional rights on the night of
(continued...)
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arrested Walters for committing two state-law crimes: assault with intent to
commit serious bodily injury and carrying a concealed, loaded firearm in a
vehicle. 2
2. Scott Center’s Pickup Truck and the Check Forgery Scheme
Officers also asked Walters about the pickup truck. Walters admitted the
truck was not his, but he insisted it belonged to a friend, whose name Walters
would not give. Officers ran checks to determine its owner and whether it was
stolen. They discovered that it was registered to Carol Eggett of Bountiful, Utah,
and that it was not listed as stolen on the FBI’s National Crime Information
Center computer.
Subsequent investigation, in September 1999, revealed that Eggett had
bought the $11,000 truck for her grandson, Scott Center, because Center’s poor
credit history prevented him from financing it himself. Eggett bought it for
Center, in part, because he had just finished drug and alcohol rehabilitation and
she hoped it would enable him to keep a legal job and not begin using drugs
again.
(...continued)
1
August 13, 1999, so he has waived that issue. See Abercrombie v. City of
Catoosa, 896 F.2d 1228, 1231 (10th Cir. 1990).
These charges were later dismissed pursuant to a plea agreement in an
2
unrelated case.
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Center testified at the January 2000 suppression hearing that Walters took
the truck as leverage to get Center to pay a $2000 debt owed to Walters after a
payroll-check forgery scheme failed. Center explained that in June 1999 Walters
gave him and an individual known as “Demon-Dog” twenty blank payroll checks
which had been stolen from a construction company. Center, who had experience
passing forged checks, was supposed to teach Demon-Dog the trade. Center later
discovered that Walters expected them to cash the checks for at least $500 each
and that he demanded a 20% cut, for a total of $2000.
When Center and Demon-Dog attempted to cash the first check, however,
Center felt the bank teller was stalling and told Demon-Dog they should leave.
Demon-Dog insisted on staying, so Center exited the bank and waited for Demon-
Dog in the truck parked outside. As police arrived, Center left. Demon-Dog was
arrested.
When Center called Walters later that afternoon to explain what happened,
Walters told him, “You better not run into me.” Center knew of Walters’s
reputation and criminal history, including convictions for multiple assaults and
illegal weapons possession. At 2 a.m. that morning, Center was lured by a young
woman into an apartment where Walters and Demon-Dog were waiting. They told
Center that they were going to “have fun” with him. Walters had a hammer on his
belt; Center had heard him say he used it to crack ribs. Demon-Dog hit Center,
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breaking his nose. They let Center leave without further injury, though, after he
paid a “ransom” of $200.
A few days later some of Walters’s “people” caught Center and brought
him to Walters at a car wash because Center had not yet paid Walters the $2000
from the check forgery scheme. They drove to Walters’s trailer, where Walters
demanded the $2000 while he menacingly wiped down a gun and placed it in front
of Center. Walters eventually let Center go that day without having paid the debt.
One morning a few days later Center was sleeping in a chair and was
awakened by Walters, who was pointing a knife at him. With Walters was Julie
Perry, the woman who had stamped the signature on the stolen payroll checks.
Ostensibly, Perry convinced Walters to let her and Center go “raise money.”
After a while, Perry persuaded Center to loan her his truck for about an hour.
Perry never returned the truck to Center, and when he saw her a few days later she
told him she had given the truck to Walters.
Days after that, Center saw Walters with the truck, and Walters told him
that once he paid the $2000 Walters would return his truck. Center retorted that
he would try to come up with $2000, but he would not pay Walters “extortion
money” for the truck. A couple of months later, in December 1999, a Salt Lake
City detective found the truck, stripped down, in a vacant lot in the warehouse
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district. There was visible damage to the interior of the truck and numerous parts
had been removed, including the tires, rims, and seats.
3. Richard M. Gowers’s Handgun and its Chain of Possession
Meanwhile, investigation of the gun took a similar trajectory. On either
August 13 or 14, 1999, Deputy Van Roosendaal ran a check to see if the gun had
been reported stolen, and the computer reported it had not been. The FBI agent
assigned to the case, Agent Montefusco, further investigated whether the gun was
stolen. The agent interviewed the gun’s owner, Richard M. Gowers, who said that
it had been missing since June or July of 1998. Gowers did not report the gun
stolen, however, because he suspected that his son, Robbie Gowers, who was
seventeen in 1998, had taken it.
Robbie admitted to the agent that he had taken the gun in July 1998; he said
he took it for the purpose of shooting rabbits. According to Robbie, he loaned the
gun to his stepbrother-in-law, Justin Montoya, but Montoya never returned it,
even after Robbie asked him for it several times. Montoya, in contrast, told the
agent that he intended to buy the gun from Robbie for $200, but he admitted that
he never paid for it. He also reported that a few days after he received the gun he
traded it to a man known only by his first name, Ryan, for one-quarter ounce of
methamphetamine. With this information, FBI agents interviewed Walters again,
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who stated that, to his knowledge, a person named Ryan owned the gun. He
admitted at his change-of-plea hearing that he possessed the gun while driving the
truck.
B. Procedural History and Discovery
1. Indictment
Based on two misdemeanor domestic assault convictions from 1995, on
September 8, 1999, a federal grand jury indicted Walters for illegal possession of
a firearm after a domestic-violence conviction, in violation of 18 U.S.C.
§ 922(g)(9). On October 15, 1999, Walters filed a motion to suppress the gun and
the statements he gave to police on August 13, 1999. The first hearing on this
motion to suppress was held on November 15, 1999, but it was continued when
the court learned that the government had sent two FBI 302 reports – on Eggett
and Center – so late that Walters had received them the day before the hearing.
Obviously frustrated, the court told the government to “[g]o through [the
evidence] again and make damn sure everything is furnished that should be.”
After the continued suppression hearing was completed on January 12, 2000, the
court ordered the parties to provide further briefing and took the motion to
suppress under advisement. Walters changed his plea to guilty on March 8, 2000,
before the court ruled on his suppression motion.
-8-
At the outset of this case, the government had an “open file” policy. A
little over a month into discovery, however, the government sought a protective
order to prevent disclosure of a report dated September 20, 1999, summarizing an
interview with Avery in which she implicates Walters in a host of criminal
activity. The government was concerned that if Walters knew of Avery’s
statements, he would try to hurt her. The district court granted this limited
protective order, requiring that the report be turned over to Walters two weeks
prior to trial.
2. Sentencing and the Withheld Reports
The probation office prepared a presentence report (“PSR”) recommending,
among other things, that Walters receive a four-level enhancement for possessing
a firearm in connection with a felony, viz., possessing a stolen truck (Center’s),
see USSG § 2K2.1(b)(5), and a two-level enhancement for possessing a stolen
firearm (Gowers’s), see USSG § 2K2.1(b)(4). Walters did not challenge the
accuracy of the relevant facts contained in the PSR. Therefore, under the law of
this circuit, they are deemed admitted as true. See United States v. Graves, 106
F.3d 342, 344 (10th Cir. 1997).
Walters complains, however, that the government violated Walters’s due
process rights by failing to turn over during discovery FBI 302 reports which
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support the two sentencing enhancements he challenges on appeal. It is
undisputed that the government did give to Walters the Deputy Van Roosendaal
report regarding both his interview with Avery on the night of the assault and his
statement that the computer check did not reveal that the gun was stolen.
However, Walters objects, first, that the government failed to disclose two reports
which, he alleges, could have been used to impeach Avery: (1) a subsequent
interview of Avery by an FBI agent 3 and (2) an interview with Avery’s mother in
which she describes what Avery told her about the night of the assault. Second,
Walters complains the government failed to turn over the report detailing the
FBI’s subsequent investigation of Gowers’s handgun. 4 It was this report that
provided the factual basis for the PSR’s conclusion that the gun was stolen.
In addition to these due process complaints, Walters also moved the
sentencing court to consider a reduction to Walters’s sentence under § 5K2.10
(Victim’s Conduct), arguing that Center’s complicity in carrying out the check
forgery scheme led to Walters’s taking Center’s truck.
Despite being “very troubled” by the government’s failures to disclose
evidence appropriately during discovery, the district court found that both
3
The record is unclear whether this report was covered by the protective
order. For the purposes of this appeal, we assume it was not.
The government concedes that a “clerical error” led to it improperly
4
withholding the 302 report regarding the chain of possession of the gun.
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sentencing enhancements relevant to this appeal applied. 5 First, the district court
found that Walters possessed Gowers’s gun in connection with the felony of
unlawfully possessing Center’s truck. The court decided that possessing the gun
had the “potential to facilitate” the continued illegal possession of the truck by
Walters because it “emboldened” him to keep the truck “vis-a-vis Mr. Center or
anyone else for that matter.” Thus, the court determined that § 2K2.1(b)(5)’s
four-level enhancement applied. Second, the district court increased Walters’s
offense level by two levels under § 2K2.1(b)(4) due to the fact that the gun was
stolen. (Vol. VI at 31.) The district court never addressed Walters’s motion for a
reduction of his sentence under § 5K2.10.
Walters appealed.
DISCUSSION
A. Jurisdiction and Standard of Review
We exercise jurisdiction pursuant to 18 U.S.C. § 3742(a) (appeal by a
defendant to review a sentence). We review a district court’s interpretation of the
Sentencing Guidelines de novo, and its factual findings for clear error. See
5
The court also applied other enhancements, but they are not relevant to this
appeal.
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United States v. Swanson, 253 F.3d 1220, 1222 (10th Cir. 2001), cert. denied,
Swanson v. United States, --- S. Ct. ----, 2001 WL 1117850 (U.S. Oct. 29, 2001)
(No. 01-6394); see also 18 U.S.C. § 3742(e) (“The court of appeals shall give due
regard to the opportunity of the district court to judge the credibility of the
witnesses, and shall accept the findings of fact of the district court unless they are
clearly erroneous and shall give due deference to the district court’s application
of the guidelines to the facts.”). We view “[e]vidence underlying a district
court’s sentence . . ., and inferences drawn therefrom, in the light most favorable
to the district court’s determination.” United States v. Conley, 131 F.3d 1387,
1389 (10th Cir. 1997).
B. Alleged Brady Violation due to Withheld Reports regarding Assault on Avery
Walters argues that the government denied him due process as interpreted
by Brady v. Maryland, 373 U.S. 83 (1963), by failing to turn over two reports
which he alleges could have been used to impeach Avery. Walters contends that
this error requires that he be allowed to withdraw his guilty plea. We disagree.
The Brady doctrine provides that “suppression by the prosecution of
evidence favorable to an accused upon request violates due process where the
evidence is material either to guilt or to punishment.” Brady, 373 U.S. at 87
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(emphasis added). 6 Thus, to establish a Brady violation, a defendant must
demonstrate that “(1) the prosecutor suppressed evidence; (2) the evidence was
favorable to the defendant as exculpatory or impeachment evidence; and (3) the
evidence was material.” Gonzales v. McKune, 247 F.3d 1066, 1075 (10th Cir.
2001).
“[A] defendant who has pleaded guilty may thereafter only challenge the
voluntariness of his plea.” United States v. Wright, 43 F.3d 491, 495 (10th Cir.
1994) (citing United States v. Broce, 488 U.S. 563, 569 (1989)). This court has
held that “under certain limited circumstances, the prosecution’s violation of
Brady can render a defendant’s plea involuntary.” Wright, 43 F.3d at 496,
although “habeas relief would clearly be the exception.” “In the context of an
attack on the validity of a plea, evidence is considered material where there is a
reasonable probability that but for the failure to produce such information the
defendant would not have entered the plea but instead would have insisted on
going to trial.” United States v. Avellino, 136 F.3d 249, 256 (2d Cir. 1998)
(quotation marks and citation omitted); cf. Hill v. Lockhart, 474 U.S. 52, 59
(1985) (stating that to demonstrate “prejudice” in the context of ineffective
assistance of counsel during the plea process a “defendant must show that there is
6
Accordingly, we reject the government’s suggestion that Brady does not
apply to “reports related only to . . . sentencing enhancements.”
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a reasonable probability that, but for counsel’s errors, he would not have pleaded
guilty and would have insisted on going to trial”). “Assessment of that question
involves an objective inquiry that asks not what a particular defendant would do
but rather what is the likely persuasiveness of the withheld information.”
Avellino, 136 F.3d at 256 (quotation marks and citation omitted).
Assuming, without deciding, that the two withheld reports provide material
for impeaching Avery, we conclude that the government’s action in not disclosing
them, while distressing, was not material. There is no objective evidence that had
Walters had the two reports he would have insisted on going to trial.
Walters argues that being able to impeach Avery was important because
“she would have likely been the only witness who could have connected Mr.
Walters and the gun.” Cf. Avellino, 136 F.3d at 256 (“In general, evidence whose
function is impeachment may be considered to be material where the witness in
question supplied the only evidence linking the defendant to the crime.”).
Walters overlooks, however, that he admitted to Deputy Van Roosendaal that he
had a gun in the truck and that police then found that gun. On appeal, he does not
challenge this evidence as improperly admitted. Therefore, Walters’s only reason
for impeaching Avery is irrelevant. Hence, the reports are not material and no
Brady violation occurred.
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C. “Stolen Gun” Sentence Enhancement
Walters next contends that the district court erred in applying a two-level
sentencing enhancement pursuant to § 2K2.1(b)(4) of the Sentencing Guidelines.
Section 2K2.1(b)(4) requires a two-level enhancement “if any firearm was stolen,
or had an altered or obliterated serial number.” “The enhancement under
subsection (b)(4) for a stolen firearm . . . applies whether or not the defendant
knew or had reason to believe that the firearm was stolen . . . .” USSG § 2K2.1,
cmt. n. 19.
Walters argues that: (1) the government’s failure to turn over the FBI 302
report pertaining to the chain of custody of the gun constitutes a violation of his
due process rights, and therefore the district court erred in considering this
evidence, or, alternatively, Walters should be permitted to withdraw his guilty
plea; (2) he should be entitled to withdraw his plea under an estoppel defense to
the plea agreement based on Utah contract law; and (3) the evidence was
insufficient to support an inference that the gun was stolen.
1. Due Process Claims
“This court reviews de novo whether a violation of a defendant’s due
process rights occurred.” United States v. Fria Vazquez Del Mercado, 223 F.3d
1213, 1214 (10th Cir. 2000), cert. denied, Fria Vazquez Del Mercado v. United
- 15 -
States, 531 U.S. 1027 (2000). Walters advances two theories for his argument
that the government violated his due process rights by failing to disclose the
report discussing the chain of possession of the gun. First, he argues that the
government’s failure to disclose the report indicating the gun was stolen, after it
had turned over Van Roosendaal’s report stating it was not, is antithetical to “the
fundamental maxim of fairness” that sits “[a]t the very core of the Due Process
clause.” Second, Walters contends that the government’s failure to disclose this
evidence constitutes a Brady violation.
a. Fundamental Fairness
Walters argues that it is fundamentally unfair for the government to make
an affirmative representation that the gun was not stolen, to contend that it was
operating under an “open file” policy, and then to fail to forward a subsequent
report showing that the gun was likely stolen. Walters fails to cite any authority
for his position, and we could not find any ourselves. Furthermore, this claim –
that the government violated due process by failing to turn over evidence – is, in
essence, merely re-packaging and seeking to extend Brady. In the absence of any
authority, we decline to extend Brady and, instead, turn to that claim itself.
b. Brady
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We repeat: To establish a Brady violation, a defendant must demonstrate
that “(1) the prosecutor suppressed evidence; (2) the evidence was favorable to
the defendant as exculpatory or impeachment evidence; and (3) the evidence was
material.” Gonzales v. McKune, 247 F.3d 1066, 1075 (10th Cir. 2001). Walters
fails to establish that the suppressed report was favorable or material. As to the
former, Agent Montefusco’s report tracing the gun’s chain of possession from
Richard M. Gowers to “Ryan” to Walters is not favorable to Walters. The report
certainly is not exculpatory; in no way does it justify, excuse or clear Walters
from guilt for the crime to which he pled guilty – possessing a firearm by a person
convicted of domestic violence. The report is irrelevant as to that crime, and it is
inculpatory as to the sentencing enhancement for possessing a stolen gun, USSG
§ 2K2.1(b)(4).
Walters argues that this report contains favorable evidence because it
would have enabled him to impeach Robbie Gowers as a thief and drug user.
Impeaching Robbie is irrelevant (and, therefore, immaterial) to both Walters’s
conviction and the “stolen gun” enhancement. There is no objective evidence that
had the government disclosed the report to Walters before he changed his plea,
Walters would not have pled guilty but would have insisted on going to trial. See
Avellino, 136 F.3d at 256. Assuming, for the sake of argument, that Walters
could have used this report thoroughly to discredit Robbie’s testimony at trial,
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that fact would have had no effect on the jury’s deliberations regarding whether
Walters was guilty of illegal possession of a firearm by a person convicted of
domestic violence or whether Walters possessed a stolen firearm in violation of
USSG § 2K2.1(b)(4). Therefore, there is no reason to believe that had Walters
possessed this report he would not have pled guilty.
Walters counters that “when he was considering his decision to change his
plea [from not guilty to guilty] he did so under the mistaken belief that the
2K2.1(b)(4) enhancement would not apply.” However, he does not establish that
anyone gave him assurances that the 2K2.1(b)(4) enhancement would not apply.
Further, reporting to Walters that a computer check did not reveal the gun stolen
is far from an assurance that the gun was not in fact stolen. Walters’s affirmative
responses to the district court’s questions at his change-of-plea hearing are
instructive:
COURT: I presume, Mr. Walters, that you believe there is some
benefit to you entering a plea of guilty . . . . Whatever benefit you
believe exists, however, is not a reason to plead guilty. You should
plead guilty only if you are guilty and for no other reason. Do you
understand that?
WALTERS: Yes.
***
COURT: Do you understand that the maximum possible penalty of
the crime to which you are entering a plea of guilty, [in] violation of
18 U.S. Code Section 922(g)(9), is: Ten years of imprisonment, and a
fine of $250,000, or both . . . ?
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WALTERS: Yes.
***
COURT: Do you understand that if your attorney or anyone else has
attempted to estimate or predict what your sentence will be, that their
estimate or prediction could be wrong?
WALTERS: Yes.
COURT: No one, not even your attorney or the government, can nor
should give you any assurance of what your sentence will be because
that sentence cannot be determined until after the probation office
report is completed and I have ruled on challenges to the report and
determined whether I believe there are grounds to depart, up or
down, from the guideline range. Do you understand that?
WALTERS: Yes.
COURT: You also fully understand that even if your sentence is
different from what your attorney or anyone else told you that it
might be, or if it is different than what you expect, you will still be
bound to your guilty plea and you will not be allowed to withdraw
your plea of guilty?
WALTERS: Yes.
***
COURT: Do you understand that . . . I am completely free to
disregard the government’s recommendation or position and to
impose whatever sentence I believe is appropriate under the
circumstances and guidelines and you will have no right to withdraw
your plea?
WALTERS: Yes.
COURT: Do you understand then that if the sentence is more severe
than expected but within the guidelines, you cannot withdraw the
plea?
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WALTERS: Yes.
COURT: I find that the defendant understands the charge against him
and understands the rights he’s waiving by agreeing to the plea
agreement.
Walters does not allege that this Rule 11 colloquy was insufficient or that, besides
his Brady claim, he entered his guilty plea involuntarily or with insufficient
knowledge. It is well established that a defendant’s dissatisfaction with the
length of his sentence generally is an insufficient reason to withdraw a plea. See
United States v. Elias, 937 F.2d 1514, 1520 (10th Cir.1991).
Therefore, we reject Walters’s claim that the government’s failure to turn
over Agent Montefusco’s report regarding the gun being stolen violated Brady.
2. Equitable Estoppel Claim
Walters further argues that the trial court erred by not invoking the
principle of equitable estoppel to bar the government from relying on Agent
Montefusco’s report to support this sentence enhancement. Walters contends he
relied on both the government’s first representation that the gun was not stolen
and the government’s failure to correct that misunderstanding when he pled
guilty.
This argument fails for several reasons. First, Walters failed to raise this
argument to the district court, so we review only for plain error. See Jones v.
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United States, 527 U.S. 373, 388 (1999). It is clear that the district court did not
commit plain error by failing to invoke the principle of equitable estoppel sua
sponte to exclude the subsequent report on the gun being stolen. Second,
Walters’s reliance was not reasonable given the district court’s thorough Rule 11
colloquy which expressly warned Walters that he should not plead guilty on the
basis of estimations of the length of the sentence he could receive. Finally, this
argument strikes us as simply a recycled version of his previous arguments which
we reject above. He has not distinguished it in any way, and therefore it appears
to fall within Brady. Yet, as we concluded above, the government did not violate
Brady because the report was neither favorable nor material.
3. Walters’s Remedies for the Government’s Apparent Misconduct
At the close of sentencing, the district court noted that it was “very
troubled by the series of events in this case wherein the United States failed to
disclose appropriately . . . information to [Walters] as the law would have
required.” We, too, are troubled by the series of non-disclosures by the
government. Walters failed to avail himself, however, of two available remedies
at the district court level. First, Federal Rule of Criminal Procedure 16(d)(2)
provides,
If at any time during the course of the proceedings it is brought to the
attention of the court that a party has failed to comply with this rule
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[regarding discovery], the court may . . . prohibit the party from
introducing evidence not disclosed, or it may enter such other order
as it deems just under the circumstances.
This rule seems tailor-made for this case. Second, Walters could have sought to
withdraw his plea, arguing the government’s non-disclosures constituted a “fair
and just reason” for withdrawal. See Fed. R. Crim. P. 32(e). At oral argument,
Walters’s counsel stated that he considered, but rejected, moving to withdraw the
plea. Perhaps he had good reason to do so. We do not know what off-the-record
negotiations took place to secure his plea or what strategic decisions his counsel
made which led him to not seek to withdraw the plea. To be sure, however, at the
district court level Walters had the tools to remedy what he now contests was
government misconduct.
4. Factual Finding that Gun was Stolen
The district court found that the gun was stolen. In the context of applying
§ 2K2.1(b)(4), this court has interpreted the term “stolen” to mean “all felonious
takings . . . with intent to deprive the owner of the rights and benefits of
ownership, regardless of whether or not the theft constitutes common-law
larceny.” United States v. Rowlett, 23 F.3d 300, 303 (10th Cir. 1994) (quoting
United States v. Turley, 352 U.S. 407, 417 (1957)). The evidence shows that
Robbie took the gun from his father, Richard Gowers. Robbie then either loaned
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or sold the gun to Montoya. Montoya, in turn, traded the gun to Ryan for a
quarter-ounce of methamphetamine. While it may be unclear who in this chain of
possession first had the requisite intent to deprive Richard Gowers of the rights
and benefits of ownership, it is indisputable that one or more of them did.
Therefore, we conclude that the district court did not clearly err in finding that the
gun was stolen.
Consequently, we affirm the district court’s two-level enhancement for
unlawful possession a stolen gun under USSG § 2K2.1(b)(4).
D. “Possessing a Gun in Connection with Another Felony” Sentence Enhancement
Sentencing Guideline § 2K2.1(b)(5) instructs a court to increase by four
levels a defendant’s base offense level “[i]f the defendant used or possessed any
firearm or ammunition in connection with another felony offense.” USSG
§ 2K2.1(b)(5). The district court applied this enhancement, finding that Walters
possessed Gowers’s gun in connection with the felony of unlawfully possessing
Center’s stolen truck. The court found that possessing the gun had “the potential
to facilitate” the offense of keeping the stolen truck because it “emboldened”
Walters to maintain possession of the truck “vis-a-vis Mr. Center or anyone else
for that matter.” (Citing United States v. Routon, 25 F.3d 815, 817-19 (9th Cir.
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1994) and United States v. Hunt, No. 97-3267, 1998 WL 223267, at *2-3 (10th
Cir. May 5, 1998))).
We have explained that the “in connection with” requirement of
§ 2K2.1(b)(5) is analogous to the “in relation to” requirement of 18 U.S.C.
§ 924(c)(1), which “is satisfied if the government shows that the weapon
facilitates or has the potential to facilitate the . . . offense, but is not satisfied if
the weapon’s possession is coincidental or entirely unrelated to the offense.”
United States v. Gomez-Arrellano, 5 F.3d 464, 466-67 (10th Cir. 1993) (citing the
“expansive” reading of § 924(c) in Smith v. United States, 508 U.S. 223, 238
(1993)); see also United States v. Bunner, 134 F.3d 1000, 1006 (10th Cir.1998).
Here, police discovered the gun under the front seat of the truck, the very
thing the district court found Walters illegally possessed and wanted to protect
from Center and others. Walters admitted at his change-of-plea hearing that he
possessed the gun while driving the truck. Center confronted Walters at least
once in an attempt to get his truck back. Avery knew Walters carried a gun, and
given Walters’s penchant for flaunting weapons and his well-known reputation
for violence, it is highly likely that others knew he had a gun as well. Walters
somehow obtained the truck from Perry – perhaps by collusion, perhaps by
coercion. Taking these facts and observations together, we hold that the district
court did not clearly err when it concluded that the gun had the potential to
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facilitate Walters’s unlawful possession of Center’s stolen truck. Therefore, we
affirm the district court’s application of the four-level enhancement under
§ 2K2.1(b)(5).
E. Downward Departure for “Victim’s Conduct” under USSG § 5K2.10
In his objection to the PSR, Walters argued that if the district court
enhanced his base offense level under § 2K2.1(b)(5) it should also reduce the
sentence under § 5K2.10 (Victim’s Conduct) because Center’s “wrongful conduct
contributed significantly to provoking” the behavior that led to the § 2K2.1(b)(5)
enhancement. The government conceded at oral argument that this issue was
properly raised and preserved for the district court. It is undisputed that the
district court did not rule on this motion by Walters; it seems to have slipped
through the cracks. The government argued on appeal that the district court could
not, as a matter of law, depart downward on the ground asserted by Walters.
Walters is entitled to have the district court consider in the first instance
whether § 5K2.10 applies. See R. Eric Peterson Constr. Co. v. Quintek, Inc. (In re
R. Eric Peterson Constr. Co.), 951 F.2d 1175, 1182 (10th Cir. 1991) (stating that
as a general rule, an appellate court does not consider issues not ruled upon
below, and thus it is appropriate to remand the case to the district court to first
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address this issue). Therefore, we REMAND for consideration of the
applicability of Sentencing Guideline § 5K2.10.
CONCLUSION
We AFFIRM the district court’s sentencing enhancements under
§ 2K2.1(b)(4) (stolen gun) and § 2K2.1(b)(5) (possession of a gun in connection
with another felony). We REMAND for the district court to consider whether
Walters qualifies for a sentence reduction under § 5K2.10 (victim’s conduct).
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United States v. Walters
Court: Court of Appeals for the Tenth Circuit
Date filed: 2001-10-31
Citations: 269 F.3d 1207
Copy CitationsCombined Opinion