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United States v. Studhorse

United States Court of Appeals, Ninth Circuit

March 2, 2018

United States of America, Plaintiff-Appellee,
v.
Keith Bennett Gordon Studhorse II, AKA Keith Bennett Studd, AKA Keith Bennett Studhorse, Defendant-Appellant.

          Submitted February 7, 2018 [*] Seattle, Washington

         Appeal from the United States District Court for the Eastern District of Washington D.C. No. 2:16-cr-00087-TOR-1 Thomas O. Rice, Chief District Judge, Presiding

          Before: MILAN D. SMITH, JR. and MARY H. MURGUIA, Circuit Judges, and EDUARDO C. ROBRENO, [**] District Judge.

         SUMMARY [***]

         Criminal Law

         The panel affirmed (1) the district court's denial of the defendant's motion to dismiss a count charging him with possession of body armor by a violent felon in violation of 18 U.S.C. §§ 931(a)(1) and 924(a)(7), and (2) its interpretation and application of the Sentencing Guidelines.

         Section 931(a) prohibits a person from possessing body armor if he or she has been convicted of a felony that is a "crime of violence" as defined in 18 U.S.C. § 16. The panel held that attempted first degree murder under Washington law constitutes a "crime of violence" under 18 U.S.C. § 16(a) because it requires specific intent and has as an element an intentional, threatened, attempted, or actual use of force.

         The panel held that, for the same reasons, attempted first degree murder under Washington law is a "crime of violence" under USSG § 4B1.2(a).

          Matthew Campbell, Federal Defenders of Eastern Washington & Idaho, Spokane, Washington, for Defendant-Appellant.

          George J.C. Jacobs III, Assistant United States Attorney; Joseph H. Harrington, United States Attorney; United States Attorney's Office, Spokane, Washington; or Plaintiff-Appellee.

          OPINION

          Milan D. Smith, Jr., Judge

         Defendant-Appellant Keith Bennett Studhorse, II, appeals (1) the district court's denial of his motion to dismiss Count 2 of the indictment, which charged him with possession of body armor by a violent felon, and (2) the district court's interpretation and application of the United States Sentencing Guidelines. He argues that the district court erred in denying his motion to dismiss and in calculating his sentence because it improperly determined that Studhorse's prior Washington State conviction for attempted first degree murder qualified as a "crime of violence." We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C § 3742, and we affirm.

         FACTUAL AND PROCEDURAL BACKGROUND

         On May 17, 2016, a two-count indictment was filed against Defendant-Appellant Keith Bennett Studhorse, II, charging him in one count with a violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2) (felon in possession of a firearm), and in a second count with a violation of 18 U.S.C. §§ 931(a)(1) and 924(a)(7) (violent felon in possession of body armor). Studhorse moved to dismiss Count 2 on July 8, 2016. Studhorse argued that dismissal was required because his three relevant prior convictions under Washington state law (for attempted first degree murder, second degree manslaughter, and riot with a deadly weapon) did not constitute crimes of violence as defined in 18 U.S.C. § 16. In its response, the Government argued that attempted first degree murder and riot constituted crimes of violence; it declined to address whether second-degree manslaughter was a "crime of violence" as well.

         On July 28, 2016, the district court held a hearing on Studhorse's motion. The court denied the motion on August 2, 2016, on the basis that attempted first degree murder is a "crime of violence." Studhorse then entered a plea of guilty pursuant to a conditional plea agreement that permitted him to later challenge the denial of his motion and his sentence.

         A presentence investigation report (PSR) was prepared in advance of Studhorse's sentencing. The PSR relied on the district court's determination that Studhorse's prior conviction for attempted first degree murder qualified as a "crime of violence, " and calculated that Studhorse's base offense level was 20, total adjusted offense level was 17, and criminal history category was IV. This resulted in an advisory guideline range of 37-46 months imprisonment.

         At sentencing on December 7, 2016, Studhorse objected to the PSR's categorization of his prior conviction for attempted first degree murder as a "crime of violence." The Government also objected to the PSR, arguing that Studhorse's two other convictions for second-degree manslaughter and riot should be counted as crimes of violence. Studhorse disputed this, and the district court overruled the Government's objections, but affirmed its holding with regard to Studhorse's attempted first degree murder conviction. The district court adopted the PSR's sentencing calculations, [1] though it ultimately varied upward to sentence Studhorse to 84 months' incarceration. Studhorse timely appealed.

         STANDARD OF REVIEW

         We review de novo both the district court's denial of Studhorse's motion to dismiss Count 2 of the indictment, see United States v. Gomez-Rodriguez, 96 F.3d 1262, 1264 (9th Cir. 1996) (en banc), and its interpretation and application of the Sentencing Guidelines, e.g., ...


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