United States of America v. Kenneth Randale Door

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
KENNETH RANDALE DOOR,
Defendant - Appellant.
No. 14-30170
D.C. No. 3:12-cr-05126-RBL-1
MEMORANDUM*
Appeal from the United States District Court
for the Western District of Washington
Ronald B. Leighton, District Judge, Presiding
Argued February 4, 2016
Submitted March 24, 2016
Seattle, Washington
Before: KOZINSKI, O’SCANNLAIN, and GOULD, Circuit Judges.
Kenneth Door appeals both the denial of his motions to suppress evidence
and his sentence. We affirm Door’s conviction and defer resolution of Door’s
sentence until the Supreme Court issues a decision in Mathis v. United States, No.
15-6092 (U.S. 2016).
FILED
APR 05 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Cir. R. 36-3.

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1. Considering the totality of the circumstances, we conclude that
Officer Dougherty-Sanders had reasonable cause to search Door’s house. See
Wash. Rev. Code § 9.94A.631(1); State v. Jardinez, 338 P.3d 292, 295 (Wash.
App. 2014) (equating “reasonable cause” with “reasonable suspicion” under Terry
v. Ohio, 392 U.S. 1 (1968)). Door argues that Joe’s tip was unreliable, that
Hansen’s sense that he was followed by Door’s car was a mere hunch, and that the
officers’ belief that Door was home but not answering his door was innocuous.
“Terry, however, precludes this sort of divide-and-conquer analysis”—“taken
together,” these observations “‘warranted further investigation.’” United States v.
Arvizu, 534 U.S. 266, 274 (2002) (quoting Terry, 392 U.S. at 22).
2. Door forfeited his Miranda claim by not raising it before the district
court’s deadline for pretrial motions. See Fed. R. Crim. P. 12(b)(3)(C). The
exception in United States v. Vasquez, 858 F.2d 1387, 1389 (9th Cir. 1988), does
not apply here because it is not clear that the district court reviewed Door’s
Miranda claim on the merits. After Door challenged the admission of his jail
statements to Hansen on voluntariness and Miranda grounds, the government
solicited testimony about whether Dougherty-Sanders read Door his Miranda
rights at Door’s house, which had no bearing on the question whether Hansen
properly Mirandized Door at the prison nineteen days later. The district court also
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referred to Judge Bryan’s earlier finding regarding whether Door heard his
Miranda rights from Dougherty-Sanders on the day of arrest. In this context, it is
not clear that the district court’s ruling “I will grant the voluntariness and the
Miranda waiver” was referring to Hansen’s actions at the jail. As the Vasquez
exception does not apply, we decline to review the forfeited claim.
3. Door challenges the district court’s conclusion that his six prior
convictions for second-degree burglary in Washington State were “violent
felonies” under 18 U.S.C. § 924(e)(1), making him an armed career criminal. The
conclusion that Door should be sentenced under the Armed Career Criminal Act
(ACCA) raised Door’s sentencing guidelines level to 34. Because the Supreme
Court has granted certiorari in Mathis v. United States, No. 15-6092 (U.S. 2016),
which will address how federal courts determine whether a prior conviction
qualifies as a “violent felony” under the ACCA, we decline to consider Door’s
challenge at this time. Although the government’s position has changed during
this case, its change in position is understandable in light of our intervening
decision in Rendon v. Holder, 764 F.3d 1077 (9th Cir. 2014). Rather than accept
Door’s request to speculate about whether the Supreme Court decision in Mathis
will affect the outcome of this case, we believe that the prudent course is to wait
for the Supreme Court’s decision in Mathis.
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4. The government argues that even without the ACCA determination,
Door had a guidelines level of 34 because of enhancements for possessing a
destructive device, U.S.S.G. § 2K2.1(b)(3)(B), for possessing a firearm in
connection with another felony offense, U.S.S.G. § 2K2.1(b)(6)(B), and for
obstruction of justice, U.S.S.G. § 3C1.1. The district court did not make any
findings of fact regarding these enhancements.
The destructive device enhancement cannot be applied to Door’s possession
of a seal bomb. We have held that “commercial explosives, absent proof of intent
to use such components as a weapon, fail to qualify as a ‘destructive device’ within
the meaning of 26 U.S.C. § 5845.” United States v. Fredman, 833 F.2d 837, 839
(9th Cir. 1987); see U.S.S.G. § 2K2.1, cmt., appl. n.1 (incorporating the statutory
definition for “destructive device” set forth in 26 U.S.C. § 5845(f)). So the seal
bomb might have been viewed as a destructive device if intended for use as a
weapon. But the government has never argued that Door had such intent, and we
see no evidence of such an intent in the record. On this record, the enhancement
cannot apply.
Regarding the other two enhancements, the district court did not make the
requisite findings for us to determine whether they properly applied. Obstruction
of justice requires proof that Door “willfully obstructed or impeded, or attempted
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to obstruct or impede, the administration of justice.” U.S.S.G. § 3C1.1. The
conduct described in the presentence report would have been sufficient for such a
finding on the theory that Door wanted to discourage Hansen from testifying at
trial. But Door disputed this evidence, and the district court did not “rule on the
dispute” as required by Federal Rule of Criminal Procedure 32(i)(3)(B).
Finally, the record contains evidence “that permits an inference that [the
firearms] facilitated or potentially facilitated—i.e., had some potential
emboldening role in”—Door’s alleged drug activity. See United States v.
Gonzales, 506 F.3d 940, 947 (9th Cir. 2007) (en banc) (quoting United States v.
Routon, 25 F.3d 815, 819 (9th Cir. 1994)). But the district court did not make a
finding that Door possessed a firearm in connection with another felony offense
such as selling drugs. U.S.S.G. § 2K2.1(b)(6)(B).
Without the required factual findings—both on the enhancement for
obstruction of justice and on the enhancement for possession of a firearm in
connection with another offense—we cannot conclude that the enhancements
apply. After we resolve the ACCA issue once Mathis is decided by the Supreme
Court, if it is necessary, we will remand on these two sentencing enhancements so
that the district court can make findings of fact that either support or rule out the
enhancements.
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5. Door’s conviction is AFFIRMED. We defer resolution of Door’s
sentence pending the Supreme Court’s disposition of Mathis v. United States, No.
15-6092 (U.S. 2016). No petitions for rehearing or rehearing en banc shall be
entertained until we issue a decision regarding Door’s sentence.
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