and Submitted October 10, 2017
from the United States District Court No.
1:13-cr-00860-LEK-16 for the District of Hawaii Leslie E.
Kobayashi, District Judge, Presiding
B. Sierra (argued), Honolulu, Hawaii, for
Aiko Otake (argued), Assistant United States Attorney, United
States Attorney's Office, Honolulu, Hawaii, for
Before: Mary M. Schroeder, Dorothy W. Nelson, and M. Margaret
McKeown, Circuit Judges.
panel affirmed a conviction and sentence for a Violent Crime
in Aid of Racketeering under 18 U.S.C. §§
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
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
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
NELSON, Circuit Judge
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.
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.
BACKGROUND & PROCEDURAL HISTORY
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.
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."
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.
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.
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.
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 ...