United States v. Fedel Sakers

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 10, 2021
• Docket: 18-10267
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 10 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 18-10267

Plaintiff-Appellee, D.C. No. 2:16-cr-00279-JAD-PAL-2 v.

FEDEL EZEKIEL SAKERS, MEMORANDUM*

Defendant-Appellant.

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

Argued and Submitted June 10, 2019 Submission Withdrawn June 27, 2019 Resubmitted February 8, 2021 San Francisco, California

Before: GOULD, IKUTA, and R. NELSON, Circuit Judges.

Fedel Sakers appeals his conviction for Hobbs Act robbery under 18 U.S.C.

§ 1951 and for brandishing a firearm in furtherance of a crime of violence under 18

U.S.C. § 924(c)(1)(A)(ii). Sakers was accused of using a gun to rob a jewelry store

and pled guilty without the benefit of a plea bargain. Sakers was compelled to

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. testify against his codefendant and refused to do so. On this basis, the district court

added two points to Sakers’s adjusted offense level for obstruction of justice at

sentencing and declined to deduct two points for acceptance of responsibility. On

appeal, Sakers argues that these applications of the Sentencing Guidelines were

erroneous and that the second count of his conviction should be reversed because

Hobbs Act robbery is not a crime of violence predicate for § 924(c). We have

jurisdiction under 28 U.S.C. § 1291, and we affirm.

First, the district court did not err in imposing additional points for

obstruction of justice under U.S.S.G. § 3C1.1. Sakers first contends that the

process in this case, in which Sakers made no attempt to deny his involvement in

the crime but was nonetheless granted immunity and compelled to implicate

someone else, “belies the policy and purpose of immunity.” We review a

challenge to the district court’s interpretation of the Sentencing Guidelines de

novo. United States v. Dewey, 599 F.3d 1010, 1014 (9th Cir. 2010). Here, Sakers

was granted immunity to completely insulate him from any criminal consequences

for his testimony, which is sufficient to override his right to refuse testimony. See

Kastigar v. United States, 406 U.S. 441, 453 (1972) (“[The] sole concern [of the

Fifth Amendment privilege] is to afford protection against being ‘forced to give

testimony leading to the infliction of penalties affixed to . . . criminal acts.’

2 Immunity from the use of compelled testimony . . . affords this protection.”)

(citations omitted).

Sakers further argues that his refusal to answer questions about his

codefendant did not amount to obstruction of justice. “The district court’s

characterization of a defendant’s conduct as obstruction of justice within the

meaning of § 3C1.1 is reviewed de novo.” United States v. Castro-Ponce, 770

F.3d 819, 822 (9th Cir. 2014). We have already held that refusal to testify at a

codefendant’s trial after being given immunity amounts to obstruction of justice in

United States v. Morales, 977 F.2d 1330, 1331 (9th Cir. 1992). Because Sakers

does not distinguish Morales, there is no basis for departing from it in this case.

Second, the district court did not err in denying Sakers a two-point reduction

in his adjusted offense level for acceptance of responsibility. The district court’s

determination whether a defendant is entitled to a reduction for acceptance of

responsibility “is a factual determination reviewed for clear error.” United States

v. Doe, 778 F.3d 814, 821 (9th Cir. 2015) (quoting United States v. Rosas, 615

F.3d 1058, 1066 (9th Cir. 2010)). The Sentencing Guidelines state that “[i]f the

defendant clearly demonstrates acceptance of responsibility for his offense,” the

court must “decrease the offense level by 2 levels.” U.S.S.G. § 3E1.1(a). The

comments to the Sentencing Guidelines further note that “[c]onduct resulting in an

enhancement under § 3C1.1 (Obstructing or Impeding the Administration of

3 Justice) ordinarily indicates that the defendant has not accepted responsibility,”

although they contemplate the possibility of “extraordinary cases in which

adjustments under both [provisions] may apply.” Id. cmt. n.4.

Relying on United States v. Hopper, 27 F.3d 378 (9th Cir. 1994), Sakers

argues that this is just such an extraordinary case. The kinds of extraordinary cases

contemplated by Hopper, however, are those in which “a defendant, although

initially attempting to conceal the crime, eventually accepts responsibility for the

crime and abandons all attempts to obstruct justice.” Id. at 383. Here, Sakers’s

obstruction occurred after he had accepted responsibility for the crime, such that

while he was willing to admit he had committed the crime, he was unwilling to tell

the full truth about his codefendant’s participation in the crime. Not only did

Sakers decline to assist in the prosecution of his codefendant. He also violated an

independent legal duty to testify fully and honestly with respect to the crime he

committed. We cannot say that the district court clearly erred in refusing to treat

this case as “extraordinary.”

Finally, the district court did not err in concluding that Hobbs Act robbery is

a crime of violence under the elements clause of § 924(c). See 18 U.S.C.

§ 924(c)(A). To determine whether Hobbs Act robbery qualifies as a crime of

violence predicate for the second count of Sakers’s conviction, we must apply the

categorical approach, “compar[ing] the elements of the statute forming the basis of

4 the defendant’s conviction with the elements of the ‘generic’ crime,” a crime of

violence in this case. Descamps v. United States, 570 U.S. 254, 257 (2013). We

recently “reaffirm[ed] that Hobbs Act robbery is a crime of violence under 18

U.S.C. § 924(c)(3)(A).” United States v. Dominguez, 954 F.3d 1251, 1261 (9th

Cir. 2020); see also United States v. Mendez, 992 F.2d 1488, 1491 (9th Cir. 1993).

Because Sakers did not show there is “a realistic probability, not a theoretical

possibility, that the [government] would apply its statute to conduct” not

encompassed by the statutory definition, Moncrieffe v. Holder, 569 U.S. 184, 206

(2013) (quoting Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193 (2007)), we see no

reason to stray from that holding here.

AFFIRMED.