United States of America v. Kenneth Knockum

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
KENNETH KNOCKUM,
Defendant-Appellant.
No. 17-10148
DC No. 2:14-cr-00115-JAM-1
MEMORANDUM*
Appeal from the United States District Court
for Eastern California, Sacramento
John A. Mendez, District Judge Presiding
Argued and Submitted September 4, 2018
San Francisco, California
Before: BERZON and FRIEDLAND, Circuit Judges, and DOMINGUEZ,**
District Judge.
FILED
SEP 27 2018
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 Circuit Rule 36-3.
** The Honorable Daniel R. Domínguez, United States District
Judge for the District of Puerto Rico, sitting by designation.

-- 1 of 3 --

Kenneth Knockum (“Knockum”) appeals his conviction and sentence for
three violations of 18 U.S.C. § 287 for filing three separate false claims with the
Internal Revenue Service (“IRS”). We affirm in part and remand in part.
1. The district court did not abuse its discretion in refusing to appoint
requested advisory counsel. The district court provided a reasoned basis on which
to deny the request: the cost of standby counsel, which, unlike the cost of
representation, is not covered by the Criminal Justice Act. See United States v.
Salemo, 81 F.3d 1453, 1459-60 (9th Cir. 1996); 7A Guide to Judiciary Policy §
220.55.20(b) (2018). As a result, the district court did not abuse its discretion in
denying Knockum’s request for advisory counsel.
2. Counts Two and Three, regarding claims to the IRS for the same amount
in the same year, are not multiplicitous. The unit of charge under 18 U.S.C. § 287
is the presentation of a false claim. See United States v. Causey, 835 F.2d 1289,
1292 (9th Cir. 1987). Intent to collect separately on each claim is not required.
See id.; United States v. Milton, 602 F.2d 231, 234 (9th Cir. 1979). Knockum’s
convictions for Counts Two and Three correspond to two separate presentations of
false claims. As a result, Knockum’s convictions on those counts are not
multiplicitous.
2

-- 2 of 3 --

3. However, a finding of intent to cause a loss is necessary to establish
intended loss for the purpose of calculating the loss amount for sentencing. See,
e.g., United States v. Tulaner, 512 F.3d 576, 578 (9th Cir. 2008); U.S. Sentencing
Guidelines Manual § 2B1.1 cmt. n.3(A)(ii) (U.S. Sentencing Comm’n). The
district court record is unclear as to whether Knockum intended to recover for both
2007 claims. We remand to the district court to determine whether Knockum filed
the duplicate claims with the intent to recover twice and, if not, to reduce his
sentence accordingly.
4. Knockum’s consecutive sentences are permissible under both the
Sentencing Guidelines and the Double Jeopardy Clause of the Constitution. Under
this court’s precedent, “the district court retains discretion under 18 U.S.C. §
3584(a) to sentence either concurrently or consecutively despite the guidelines.”
United States v. Pedrioli, 931 F.2d 31, 32 (9th Cir. 1991). The record indicates that
the district court considered the factors set forth in 18 U.S.C. § 3553(a) in
determining that a consecutive sentence was appropriate. And sentencing a
defendant separately for each unit of prosecution does not violate the Double
Jeopardy Clause. United States v. Alverson, 666 F.2d 341, 347 (9th Cir. 1982).
AFFIRMED in part, REMANDED in part.
3

-- 3 of 3 --