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United States v. Adkins

United States Court of Appeals, Ninth Circuit

March 5, 2018

United States of America, Plaintiff-Appellee,
v.
Tineimalo Adkins, Defendant-Appellant.

          Argued and Submitted October 10, 2017

         Appeal from the United States District Court No. 1:13-cr-00860-LEK-16 for the District of Hawaii Leslie E. Kobayashi, District Judge, Presiding

          Marcus B. Sierra (argued), Honolulu, Hawaii, for Defendant-Appellant.

          Jill Aiko Otake (argued), Assistant United States Attorney, United States Attorney's Office, Honolulu, Hawaii, for Plaintiff-Appellee.

          Before: Mary M. Schroeder, Dorothy W. Nelson, and M. Margaret McKeown, Circuit Judges.

         SUMMARY [*]

         Criminal Law

         The panel affirmed a conviction and sentence for a Violent Crime in Aid of Racketeering under 18 U.S.C. §§ 1959(a)(3), (2).

         The panel held that the district court erred when it instructed the jury on the federal definition of "knowingly, " which lacked a self-defense instruction, rather than on the Hawaii definition. The panel held that the error was harmless.

         The panel held that the Sentencing Commission's deletion of the residual clause in the career offender guideline, U.S.S.G. § 4B1.2(a), was a substantive rather than clarifying amendment, and that the residual clause therefore applies to the defendant, who was sentenced prior to the amendment.

         The panel held that the defendant's prior Hawaii convictions for unlawful imprisonment in the first degree and burglary in the first degree qualify as crimes of violence under the residual clause.

          OPINION

          D.W. NELSON, Circuit Judge

         OVERVIEW

         Tineimalo Adkins appeals his conviction for a Violent Crime in Aid of Racketeering (VICAR) under 18 U.S.C. §§ 1959(a)(3), (2). Adkins argues that the district court erred in instructing the jury on the federal, rather than state, definition of "knowingly." Because any error was harmless, we AFFIRM Adkins's conviction.

         Adkins also appeals his 210 month sentence, arguing that his prior convictions do not constitute crimes of violence under U.S.S.G. § 4B1.2. Because we find that Adkins's burglary and false imprisonment convictions qualify as crimes of violence under § 4B1.2's residual clause, we AFFIRM Adkins's sentence.

         FACTUAL BACKGROUND & PROCEDURAL HISTORY

         While incarcerated at the Halawa Correctional Facility in Hawaii, Adkins and five other members of the United Samoan Organization (USOs) prison gang beat B.L., a member of a rival gang, for owing a drug debt to the USOs.

         On October 10, 2014, a jury found Adkins guilty of a Violent Crime in Aid of Racketeering in violation of 18 U.S.C. §§ 1959(a)(3), (2). As the basis for the VICAR offense, Count 4 of the Indictment specifically alleged that Adkins knowingly committed an assault on B.L. "in violation of [s]ection 707-710 of the Penal Code of the State of Hawaii." Adkins submitted a Proposed Jury Instruction No. 4 setting forth the material elements of a section 707-710 violation, including the definitions of "serious bodily injury" and "knowingly" in the Hawaii Penal Code. The Hawaii Penal Code definition in Adkins's proposed instruction was: "A person acts 'knowingly' with respect to a result of his conduct when he is aware that it is practically certain that his conduct will cause such a result." The proposed definition also contained a self-defense instruction. In contrast, the government proposed a federal definition of "knowingly" that did not contain a self-defense instruction: "The word 'knowingly' means that the act was done voluntarily and intentionally, and not because of mistake or accident." Over Adkins's objections, the court adopted the government's broader, federal definition of "knowingly."

         Before sentencing, the government requested that Adkins be designated a career offender under U.S.S.G. § 4B1.1. At that time, Adkins had three prior convictions: a 1997 conviction for Unlawful Imprisonment in the First Degree under Hawaii Revised Statutes section 702-721 and Sexual Assault in the Third Degree under Hawaii Revised Statutes section 707-732, both arising from the same incident; and a 2003 conviction for Burglary in the First Degree under Hawaii Revised Statutes section 708-810.

          Adkins filed a Motion to Continue Sentencing, pending the outcome of Johnson v. United States, 135 S.Ct. 2551 (2015). The Supreme Court in Johnson ultimately struck down the residual clause of the Armed Career Criminal Act ("ACCA") as unconstitutionally vague. Johnson, 135 S.Ct. at 2557. Since § 4B1.2 contains an identically worded residual clause to the one found in the ACCA, the parties agreed that Johnson by extension applies to the Sentencing Guidelines. The district court thus did not conduct a residual clause analysis for any of Adkins's convictions in light of Johnson and the parties' agreement.

         The district court held that Hawaii's Burglary in the First Degree met the federal generic definition of burglary and Hawaii's Sexual Assault in the Third Degree matched the generic definition of sexual abuse of a minor, making both convictions crimes of violence. The district court did not reach whether Hawaii's False Imprisonment in the First Degree was a crime of violence.

         Because the district court ruled that Adkins had at least two prior convictions that were crimes of violence, he was subject to a 12-level increase (20 to 32) in his offense level calculations. The advisory guideline imprisonment range for an offense level of 20 is 70 to 87 months. An offense level 32 has a range of ...


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