United States v. 2010-02-24 | 09-30146 | USA V. JASON JENNEN | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 UNITED STATES OF AMERICA, No. 09-30146
Plaintiff-Appellee, D.C. No.
v. 2:08-CR-00081-  LRS-1JASON LEE JENNEN,
Defendant-Appellant. OPINION

Appeal from the United States District Court
for the Eastern District of Washington
Lonny R. Suko, Chief District Judge, Presiding
Submitted December 8, 2009*
Seattle, Washington
Filed February 24, 2010
Before: Ronald M. Gould and Richard C. Tallman,
Circuit Judges, and Roger T. Benitez,** District Judge.
Opinion by Judge Gould
*The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
**The Honorable Roger T. Benitez, United States District Judge for the
Southern District of California, sitting by designation.
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COUNSEL
Matthew Campbell, Federal Defenders of Eastern Washington
and Idaho, Spokane, Washington, for defendant-appellant
Jason Lee Jennen.
Ronald W. Skibbie, Assistant United States Attorney, Spo-
kane, Washington, for plaintiff-appellee United States of
America.
OPINION
GOULD, Circuit Judge:
Jason Lee Jennen was convicted of being a felon in posses-
sion of a firearm and ammunition, in violation of 18 U.S.C.
§ 922(g), and was sentenced to thirty-seven months in prison.
Jennen had entered a conditional guilty plea for this offense,
and permissibly appeals the district court’s denial of his
motion to suppress evidence obtained by law enforcement
during a search of his residence. He also appeals his sentence.
We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
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I
In October 2007, a Spokane Police Department (“SPD”)
detective applied for a search warrant to search Jennen’s resi-
dence and person. The detective’s affidavit accompanying the
search warrant application provided the following informa-
tion:
In early October 2007 the SPD received an anonymous tip
stating that Jennen and his girlfriend were using illegal drugs,
including methamphetamine and cocaine, in the presence of
their children. The anonymous tip disclosed the place where
Jennen resided, that Jennen had weapons and cameras and
seemed to know when police were coming and would usually
disappear accordingly, and that Jennen bragged about keeping
dynamite under his home. On October 18, 2007, the SPD,
using a confidential informant (“CI”), orchestrated a con-
trolled purchase of methamphetamine at Jennen’s residence.
The CI called Jennen and ordered methamphetamine from
him. Jennen directed the CI to his residence. The SPD main-
tained surveillance while the CI parked at Jennen’s residence
and made contact with two white males. The CI explained to
the SPD that these two white males were Jennen and his sup-
plier: the CI first made contact with Jennen’s supplier, after
which Jennen came out of his home and gave the CI a baggie
of methamphetamine in exchange for the purchase money.
The CI stated that Jennen lived with his girlfriend and their
children, that they had surveillance cameras in their home,
and that Jennen had firearms. The CI also provided Jennen’s
home phone number, which police records showed belonged
to Jennen’s girlfriend. The affidavit disclosed that the CI had
been arrested for crimes of dishonesty and was receiving
monetary compensation for his work, but that the CI was reli-
able in past investigations involving the sale of controlled
substances.
Based on the above information contained in the affidavit,
on October 19, 2007, a state judicial officer authorized the
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search warrant. The search warrant permitted, in relevant part,
the SPD to search Jennen’s residence and his person for ille-
gal drugs including methamphetamine, evidence of Jennen’s
involvement in the sale or distribution of drugs, and firearms.
On October 23, 2007, after the warrant was already issued,
the SPD unsuccessfully attempted a second controlled pur-
chase of methamphetamine from Jennen at his residence. The
CI stated that Jennen was suspicious of activity in a field to
the north and told the CI that he was “out.”
On October 25, 2007, the SPD executed the search warrant
at Jennen’s residence. Both Jennen and his girlfriend were
present, along with young children. Drug paraphernalia, pack-
aging materials, and a substance that field-tested positive for
methamphetamine were found during the search. Search of
the premises also recovered a working .22 caliber semi-
automatic rifle, a working bolt-action rifle, two non-
functional firearms, and ammunition. Two televisions in Jen-
nen’s home were set up as surveillance monitors, showing the
north and south ends of Jennen’s home.
Jennen was indicted on one count of being a felon in pos-
session of a firearm and ammunition, and one count of pos-
session of a stolen firearm. Jennen moved to suppress the
evidence obtained by law enforcement during the search, and
the district court denied the motion. Jennen thereafter entered
a conditional guilty plea to the crime of being a felon in pos-
session of a firearm and ammunition, reserving the right to
appeal the denial of his suppression motion and the court’s
sentencing ruling. At sentencing, the district court determined
that Jennen’s conviction for second degree assault with a
deadly weapon was a conviction for a “crime of violence.”
The district court calculated an advisory United States Sen-
tencing Guidelines (“Guidelines”) range of thirty-seven to
forty-six months and sentenced Jennen to the low end of the
range. Jennen’s timely appeal followed.
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II
A district court’s denial of a motion to suppress is reviewed
de novo and its factual findings for clear error. United States
v. Brown, 563 F.3d 410, 414 (9th Cir. 2009). Whether or not
there was probable cause supporting the issuance of a search
warrant is determined by the totality of the circumstances. Illi-
nois v. Gates, 462 U.S. 213, 238 (1983). The existence of
probable cause turns on whether the search warrant affidavit
“establish[ed] a reasonable nexus between the crime or evi-
dence and the location to be searched.” United States v.
Crews, 502 F.3d 1130, 1136-37 (9th Cir. 2007).
Jennen argues that the warrant was not based on probable
cause because the information leading to the warrant was
unreliable and uncorroborated and the second, failed con-
trolled purchase—attempted after the warrant was issued—
undermined probable cause.1
A
[1] To uphold the issuance of a warrant, we “need only
find that the issuing magistrate had a substantial basis for
finding probable cause.” United States v. Chavez-Miranda,
306 F.3d 973, 978 (9th Cir. 2002). For anonymous tips to be
given weight, “officers must provide some basis to believe
1Jennen also argues that the facts in the affidavit “were not necessarily
proven.” Jennen misapprehends the legal standard on review of denial of
a motion to suppress. Here, the existence of probable cause turns on the
information disclosed in the affidavit. See Crews, 502 F.3d at 1136-37.
While Jennen argues that the controlled purchase did not clearly establish
that Jennen, and not his supplier, sold the methamphetamine to the CI, the
affidavit provided that the CI stated it was Jennen who gave him the drugs.
Jennen’s argument that the affidavit should have disclosed more informa-
tion about Jennen’s supplier’s recent guilty plea to possession of metham-
phetamine is not persuasive; the affidavit provided the relevant
information necessary for a judicial officer to make a reasoned probable
cause determination.
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that the tip is true.” United States v. Clark, 31 F.3d 831, 834
(9th Cir. 1994). For an anonymous tip to be the basis for prob-
able cause, there must be additional evidence that shows the
tip is reliable: “(1) the tip must include a range of details; (2)
the tip cannot simply describe easily observed facts and con-
ditions, but must predict the suspect’s future movements; and
(3) the future movements must be corroborated by indepen-
dent police observation.” United States v. Morales, 252 F.3d
1070, 1076 (9th Cir. 2001) (internal quotation marks omitted);
see also United States v. Luong, 470 F.3d 898, 903 (9th Cir.
2006) (adopting the Morales standard for probable cause
determinations).
[2] The anonymous tip here met the Morales standard.
First, the anonymous tip included a “range of details” that
were more than “easily observed facts and conditions.” See
Morales, 252 F.3d at 1076. The anonymous tip described how
Jennen and his girlfriend were doing drugs in the presence of
children. It disclosed where Jennen resided; the types of
drugs, including methamphetamine and cocaine, being used;
that Jennen possessed weapons; and that Jennen had cameras
and seemed to know when police were coming. Second, the
tip described the continuing illegal conduct (Jennen and his
girlfriend “do drugs” and “have weapons [and] cameras”) and
where that illegal conduct would take place in the future (at
Jennen’s residence). See id. Third, important details disclosed
in the anonymous tip were corroborated by the CI: Jennen,
along with his girlfriend and their children, was residing
where the tip indicated, Jennen had firearms and surveillance
cameras, and Jennen had drugs. See id.2
2Jennen replies that certain information in the tip—that Jennen and his
girlfriend were using drugs in the presence of children and that Jennen was
keeping dynamite under his home—had not been corroborated prior to the
execution of the warrant. Morales does not require that all details in an
anonymous tip be corroborated, only that future activities be corroborated.
252 F.3d at 1076. The activities that were corroborated here gave the state
judicial officer “a substantial basis for finding probable cause.” See
Chavez-Miranda, 306 F.3d at 978.
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[3] Jennen next contests the reliability of the information
obtained through the controlled purchase because the CI had
been arrested for crimes of dishonesty and was being compen-
sated by the SPD. We disagree that the information provided
by the CI could not be relied on to establish probable cause.
In assessing this issue, and considering the evidence provided
by the CI, we keep in mind that the superordinate standard
controlling the legality of the search is probable cause, not
certainty of cause. See Los Angeles County v. Rettele, 550
U.S. 609, 615 (2007) (“The Fourth Amendment allows war-
rants to issue on probable cause, a standard well short of abso-
lute certainty.”). The mere fact that the CI received
compensation and was arrested for crimes of dishonesty is not
dispositive given the additional information provided in the
affidavit that bolstered the CI’s credibility. See United States
v. Meling, 47 F.3d 1546, 1555 (9th Cir. 1995). The affidavit
described how the CI had “assisted . . . in past investigations
that resulted in the arrests and convictions of subjects dealing
in controlled substances”3 and that “this CI has been proven
reliable.” Because the information “provided [by the CI] in
the past involved the same type of criminal activity as the cur-
rent information, the inference of trustworthiness is even
stronger.” See United States v. Angulo-Lopez, 791 F.2d 1394,
1397 (9th Cir. 1986). The CI had a track record of demon-
strated reliability in prior drug investigations and therefore the
CI could properly be considered more reliable. See United
States v. Rowland, 464 F.3d 899, 908 (9th Cir. 2006) (“[A]n
informant with a proven track record of reliability is consid-
ered more reliable than an unproven informant.”). The state
judicial officer properly issued the warrant because the state
judicial officer had “a substantial basis for finding probable
cause.” Chavez-Miranda, 306 F.3d at 978.4
3Jennen notes that the affidavit did not demonstrate that the CI’s coop-
eration, itself, led to convictions. The affidavit did not need to state that
convictions were obtained on the basis of the CI’s work to establish the
CI’s reliability.
4Jennen argues that the information obtained by the CI through the con-
trolled purchase could not corroborate the anonymous tip because of the
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B
[4] Jennen next argues that the second, failed controlled
purchase undermined probable cause supporting the warrant.
Once again we disagree, keeping in mind that it is probable
cause, not certain cause, that permits the search. See Rettele,
550 U.S. at 615. Even in light of the intervening failed con-
trolled purchase, “nothing . . . changed the facts upon which
the original affidavit was based and which gave the agents
probable cause to believe that articles subject to seizure were
in the [residence].” United States v. Nepstead, 424 F.2d 269,
271 (9th Cir. 1970). The second controlled purchase, though
it did not result in the CI obtaining methamphetamine,
showed only that Jennen had no methamphetamine that he
was willing to sell at that time once his suspicion was
aroused, and did not exculpate Jennen from his apparent
involvement in a continuing drug scheme. Given the totality
of the circumstances, the second, failed controlled purchase
did not undermine probable cause that Jennen had the items
sought in the warrant in his residence. See Gates, 462 U.S. at
238.
[5] Nor, as Jennen contends, was there an “[u]nreasonable
delay in the execution of a warrant.” See United States v.
Marin-Buitrago, 734 F.2d 889, 894 (2d Cir. 1984). The war-
rant was executed six days after it was issued. See Nepstead,
tipster’s anonymity. Doubtless, judicial officers must be cautious about
issuing warrants when part of the probable cause determination relies on
information provided in an anonymous tip. Here, the CI’s reliability and
track record, combined with the detailed nature of the information dis-
closed in the tip, provided “a substantial basis for finding probable cause.”
Chavez-Miranda, 306 F.3d at 978; see also United States v. Artez, 389
F.3d 1106, 1114 (10th Cir. 2004) (“[T]he two controlled purchases of
methamphetamine from Defendant’s residence helped corroborate the
confidential informant’s tip that the residence was utilized to distribute
methamphetamine.”); Rodriques v. Furtado, 950 F.2d 805, 812 n.9 (1st
Cir. 1991) (“The anonymous tip tended to corroborate the CI’s report. The
CI in turn, had previously provided reliable information.”).
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424 F.2d at 271 (vacating the district court’s suppression
order and concluding that the passage of six days since the
issuance of the warrant before its execution did not “detract
from probable cause”). Because there was no unreasonable
delay in executing the warrant and the “facts underlying the
magistrate’s determination of probable cause” did not
“material[ly] change,” there was no need, as Jennen argues,
for the SPD to confer with a judicial officer to see if “proba-
ble cause still exist[ed].” Marin-Buitrago, 734 F.2d at 894.
The district court did not err in denying Jennen’s motion to
suppress. Jennen’s conviction on his conditional guilty plea
stands.
III
Challenging the sentence he received, Jennen argues that
the district court erred in determining that his prior conviction
for second degree assault with a deadly weapon constituted a
“crime of violence.” We hold that Washington’s crime of sec-
ond degree assault with a deadly weapon is categorically a
crime of violence.
[6] Whether a conviction constitutes a crime of violence
under the Guidelines is reviewed de novo. United States v.
Hermoso-Garcia, 413 F.3d 1085, 1089 (9th Cir. 2005). The
Guidelines define crimes of violence to include, among oth-
ers, “any offense under federal or state law, punishable by
imprisonment for a term exceeding one year” that “has as an
element the use, attempted use, or threatened use of physical
force against the person of another.” USSG § 4B1.2(a).
[7] Under Washington law, “a person is guilty of assault in
the second degree if he or she, under circumstances not
amounting to assault in the first degree . . . [a]ssaults another
with a deadly weapon.” Wash. Rev. Code § 9A.36.021(1).
Assault is not statutorily defined but the Supreme Court of
Washington has adopted the common-law understanding of
assault, which includes three different ways of committing an
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assault: (i) “an attempt, with unlawful force, to inflict bodily
injury upon another”; (ii) “an unlawful touching with criminal
intent”; and (iii) “putting another in apprehension of harm
whether or not the actor intends to inflict or is incapable of
inflicting that harm.” Clark v. Baines, 84 P.3d 245, 247 n.3
(Wash. 2004). Second degree assault with a deadly weapon,
therefore, is committed by using a deadly weapon while
engaging in conduct that fits any of the three definitions
above, all three of which, when carried out with a deadly
weapon, have as an element the “use, attempted use, or threat-
ened use of physical force against the person of another.” See
USSG § 4B1.2(a)(1).
The first way of committing second degree assault with a
deadly weapon requires “an attempt, with unlawful force, to
inflict bodily injury upon another,” Clark v. Baines, 84 P.3d
at 247 n.3, and the use of a “deadly weapon,” Wash. Rev.
Code § 9A.36.021(1)(c). Assault by attempting to inflict bod-
ily injury with a deadly weapon is directly parallel to USSG
§ 4B1.2(a)(1)’s language of “attempted use . . . of physical
force.”
[8] The second way of committing second degree assault
with a deadly weapon requires “an unlawful touching with
criminal intent,” Clark v. Baines, 84 P.3d at 247 n.3, and the
use of a “deadly weapon,” Wash. Rev. Code
§ 9A.36.021(1)(c). Jennen argues that Ortega-Mendez v. Gon-
zales, 450 F.3d 1010 (9th Cir. 2006), stands for the proposi-
tion that unlawful touching does not require the level of
physical force of a crime of violence. See id. at 1016. Thus,
concludes Jennen, an unlawful touching with a deadly
weapon does not require the physical force of a crime of vio-
lence. Jennen is mistaken in his conclusion. In Ortega we
construed the phrase “physical force” in 18 U.S.C. § 16(a)—
the sub-section of an immigration statute worded almost iden-
tically to USSG § 4B1.2(a)(1)5—and reasoned that “the force
5Section 16(a) and USSG § 4B1.2(a)(1) define “crime of violence”
identically except that § 16(a) adds the following underlined language: A
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necessary to constitute a crime of violence [under 18 U.S.C.
§ 16(a)] must actually be violent in nature.” Id. (alteration in
original). We concluded that the “mere offensive touching”
that would constitute a simple battery under California law
did not rise to that level and therefore such a battery was not
categorically a crime of violence within the meaning of
§ 16(a). Id. at 1017-18. Here, we are not faced with the ques-
tion of whether “mere offensive touching” meets the force
requirement of a crime of violence, but rather whether unlaw-
ful touching using a deadly weapon meets the force require-
ment of a crime of violence. We conclude that it does.
In United States v. Heron-Salinas, 566 F.3d 898 (9th Cir.
2009), we were faced with the question of whether the Cali-
fornia crime of assault with a firearm was categorically a
crime of violence under 18 U.S.C. § 16. Id. at 899. The defen-
dant on appeal argued that assault with a firearm could not
categorically be a crime of violence because assault under
California law included an unconsented touching, rather than
actual force. Id. We disagreed and concluded as follows:
The use of a firearm in the commission of the crime
is enough to demonstrate that actual force was
attempted or threatened under section 16(a) . . . .
Assault with a firearm naturally falls within the
category, crime of violence, under the ordinary
meaning of that term. Heron-Salinas was convicted
of a crime of violence under 18 U.S.C. § 16.
Id. (internal quotation marks and citation omitted). Our con-
clusion that unconsented touching with a firearm requires “the
use, attempted use, or threatened use of physical force” com-
“crime of violence” requires “the use, attempted use, or threatened use of
physical force against the person or property of another.” 18 U.S.C.
§ 16(a) (emphasis added).
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pels the conclusion that unlawful touching using a deadly
weapon does too.
The third way of committing second degree assault with a
deadly weapon requires “putting another in apprehension of
harm whether or not the actor intends to inflict or is incapable
of inflicting that harm,” Clark v. Baines, 84 P.3d at 247 n.3,
and the use of a “deadly weapon,” Wash. Rev. Code
§ 9A.36.021(1)(c).
[9] Jennen argues that one can put another in apprehension
of harm without threatening use of physical force because one
can inflict harm without using physical force. But what is
required for second degree assault is not merely placing
someone in apprehension of harm, but placing them in appre-
hension of bodily harm. See State v. Byrd, 887 P.2d 396, 399
(Wash. 1995) (“[S]pecific intent either to create apprehension
of bodily harm or to cause bodily harm is an essential element
of assault in the second degree.”). It follows that placing
someone in apprehension of bodily harm with the specific
intent of so doing while using a deadly weapon requires a
“threatened use of physical force.” See USSG § 4B1.2(a)(1).
Accordingly, the district court correctly concluded that Jen-
nen’s conviction for second degree assault with a deadly
weapon was categorically a conviction for a crime of violence
and did not abuse its discretion in determining Jennen’s sen-
tence.6
6Jennen also argues that the sentence imposed was substantively unrea-
sonable. We review the reasonableness of a district court’s application of
the Guidelines for abuse of discretion. See United States v. Carty, 520
F.3d 984, 993 (9th Cir. 2008). “A correctly calculated Guidelines sentence
will normally not be found unreasonable on appeal.” United States v.
Medina-Beltran, 542 F.3d 729, 732 (9th Cir. 2008) (internal quotation
mark omitted). The district court calculated Jennen’s sentence correctly
and sentenced Jennen to the low end of the range. A low-end Guidelines-
range sentence will generally not be considered unreasonable absent
unusual circumstances. See Carty, 520 F.3d at 996. Jennen points us to no
such unusual circumstances here. The district court did not abuse its
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IV
We AFFIRM both the district court’s denial of Jennen’s
suppression motion and Jennen’s sentence.
discretion in sentencing Jennen at the lowest end of the Guidelines range.
See id. at 993. This sentence is reasonable when all factors relevant under
18 U.S.C. § 3553(a) are considered. Jennen’s repeat criminal behavior,
drug activity, and his possession of weapons warranted the sentence to
protect the public.
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