United States v. Charles Cooper, Jr.

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 6, 2018
• Docket: 16-10413
• Status: Unpublished

Opinion

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS FILED FOR THE NINTH CIRCUIT JUL 06 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS UNITED STATES OF AMERICA, No. 16-10413

Plaintiff-Appellee, D.C. No. 2:14-cr-00228-JAD-CWH-1 v.

CHARLES EDWARD COOPER, Jr., MEMORANDUM*

Defendant-Appellant.

UNITED STATES OF AMERICA, No. 16-10449

Plaintiff-Appellant, D.C. No. 2:14-cr-00228-JAD-CWH-1 v.

CHARLES EDWARD COOPER, Jr.,

Defendant-Appellee.

Appeal from the United States District Court for the District of Nevada Jennifer A. Dorsey, District Judge, Presiding

Argued and Submitted June 15, 2018 San Francisco, California

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Before: SCHROEDER, EBEL,** and GOULD, Circuit Judges.

Charles Edward Cooper appeals, pro se, his conviction and sentence for

being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and

924(a)(2). We appointed counsel to appear on his behalf for oral argument. The

government appeals the denial of a sentence enhancement pursuant to the Armed

Career Criminals Act (“ACCA”), 18 U.S.C. § 924(e), after the District Court ruled

Cooper’s prior convictions did not qualify as violent felonies. We affirm in all

respects.

Officers arrested Cooper in his home, without a warrant, upon probable

cause to believe he had beaten his girlfriend. While the arrest was in violation of

Payton v. New York, 445 U.S. 573, 576 (1980), the statements Cooper made were

after officers removed him to a patrol car and read him his rights under Miranda v.

Arizona, 384 U.S. 436 (1966). His motion to suppress his statements was correctly

denied. Under New York v. Harris, 495 U.S. 14, 20–21 (1990), the statements in

the car were not the fruit of the warrantless arrest in his home. The Miranda

warning was sufficient, see United States v. Loucious, 847 F.3d 1146, 1149–51

(9th Cir. 2017), as was the information in the affidavit for the search warrant that

** The Honorable David M. Ebel, United States Circuit Judge for the U.S. Court of Appeals for the Tenth Circuit, sitting by designation. 2 led to the recovery of the weapons, see United States v. Davis, 714 F.2d 896, 899

(9th Cir. 1983).

The District Court did not abuse its discretion in refusing to allow Cooper to

call Agent Garcia as a witness, because the agent’s testimony would have been

cumulative. See United States v. Weischedel, 201 F.3d 1250, 1255 (9th Cir. 2000)

(“A district court can properly deny a Rule 17(b) subpoena request when the

testimony sought would be cumulative.”). The government called a different agent

as a witness to establish the element of the interstate nexus of the guns found in

Cooper’s home.

During sentencing, the District Court addressed Cooper personally and

permitted him to speak or present information to mitigate his sentence. See Fed. R.

Crim. P. 32(i)(4)(A)(ii). Moreover, the court permitted Cooper to submit at least

two briefs to set forth his objections to the sentencing recommendations. See

United States v. Gunning, 401 F.3d 1145, 1147 (9th Cir. 2005). The District Court,

during the sentencing hearing, asked Cooper not to repeat the objections in his

brief, but this did not deny his allocution right to address the court.

In the government’s sentencing cross-appeal, the government contends that

Cooper’s prior felony convictions for robbery with the use of a deadly weapon and

battery with substantial bodily harm qualify as violent felonies under the ACCA.

3 The robbery statute does not qualify as a violent felony under the “enumerated-

offenses” clause of the ACCA because the Nevada statute punishes the

nonconsensual taking of property. See N.R.S. §§ 200.380, 193.165 (1983); United

States v. Dixon, 805 F.3d 1193, 1196–97 (9th Cir. 2015); Flynn v. State, 562 P.2d

1135, 1136 & n.1 (Nev. 1977) (per curiam). Nor does it qualify under the “force”

clause of the ACCA, because it punishes threats directed at property in addition to

threats directed at another person. See Dixon, 805 F.3d at 1197–98; United States

v. Sherbondy, 865 F.2d 996, 1010 (9th Cir. 1988).

The robbery statute is indivisible, containing alternative means, not

elements. See Dixon, 805 F.3d at 1198. Because the robbery statute does not

constitute a categorical match to the ACCA definition of a violent felony, we need

not decide whether the battery conviction qualifies as a violent felony. Standing

alone, the battery conviction would not make Cooper eligible for sentencing as an

Armed Career Criminal in any event.

The conviction and sentence are AFFIRMED.