United States v. Hack Culling, Jr.

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 17, 2024
• Docket: 22-10341
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 17 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 22-10341

Plaintiff-Appellee, D.C. Nos. 2:20-cr-00029-WBS-1 v. 2:20-cr-00029-WBS

HACK TOWNSEND CULLING, Jr., MEMORANDUM* Defendant-Appellant.

Appeal from the United States District Court for the Eastern District of California William B. Shubb, District Judge, Presiding

Submitted June 13, 2024** San Francisco, California

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

In June 2020, Defendant Hack T. Culling, Jr., pled guilty to the charge of

being a felon in possession of a firearm. The charge stemmed from a traffic stop in

April 2019 where law enforcement seized a loaded pistol and 241.4 grams of

marijuana from Culling. During sentencing, the district court held that Culling’s

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). two prior convictions under California Penal Code § 273.5(a) were crimes of

violence under U.S.S.G. § 2K2.1(a)(2). The district court also imposed a four-

level enhancement of Culling’s possession of marijuana for sale while carrying a

firearm. Culling appeals his sentence, contending that: (1) a previous conviction

under California Penal Code § 273.5(a) is not a crime of violence for the purposes

of U.S.S.G. § 2K2.1(a)(2); and (2) the district court abused its discretion by

imposing a four-level enhancement for Culling’s possession of marijuana with

intent to sell while carrying a firearm. We have jurisdiction under 18 U.S.C.

§ 3742(a) and 28 U.S.C. § 1291, and we affirm.

1. “We review de novo the classification of a defendant’s prior conviction

for purposes of applying the Sentencing Guidelines.” United States v. Tagatac, 36

F.4th 1000, 1003 (9th Cir. 2022) (quoting United States v. Murillo-Alvarado, 876

F.3d 1022, 1028 (9th Cir. 2017)). An offense can qualify as a “crime of violence”

under U.S.S.G. § 2K2.1 if the offense satisfies the guideline’s “elements clause.”

Under that standard, an offense is a crime of violence if it “has as an element the

use, attempted use, or threatened use of physical force against the person of

another.” U.S.S.G. § 4B1.2(a)(1); see § 2K2.1 cmt. n.1.

The Supreme Court has held that under the Armed Career Criminal Act’s

elements clause—which is identical to the one used in U.S.S.G. § 2K2.1—an

offense requiring mens rea of recklessness cannot be a “violent felony” because

2 “[t]he phrase ‘against another,’ when modifying the ‘use of force,’ demands that

the perpetrator direct his action at, or target, another individual. Reckless conduct

is not aimed in that prescribed manner.” Borden v. United States, 593 U.S. 420,

429 (2021). Culling claims that, under Borden, the crime for which he was

convicted is not a “crime of violence.”

California Penal Code § 273.5(a) makes it a felony to “willfully inflict[]

corporal injury resulting in a traumatic condition upon a victim.” Culling argues

that under Borden, his previous convictions under § 273.5 are not crimes of

violence under U.S.S.G. § 2K2.1 because California courts have interpreted

§ 273.5 in a way that does not require the defendant to intend the injury. Thus,

Culling argues, the statute covers reckless conduct which, under Borden, cannot be

a crime of violence.

We have previously held that a conviction under § 273.5 constitutes a

categorical crime of violence. See, e.g., United States v. Walker, 953 F.3d 577,

579 (9th Cir. 2020); United States v. Laurico-Yeno, 590 F.3d 818, 820 (9th Cir.

2010). In Walker, we reaffirmed United States v. Laurico-Yeno, which held that

§ 273.5 “punishes a ‘person who willfully inflicts’ injury upon [another] ‘where

willfully is a synonym for intentionally.’” Walker, 953 F.3d at 579 (quoting

Laurico-Yeno, 590 F.3d at 821). Culling argues, however, that our precedent

conflicts with Borden. We disagree. § 273.5(a)’s requirement that a defendant

3 willfully or intentionally “inflict[] corporal injury resulting in a traumatic condition

upon a victim” is consistent with Borden, which held that the statute must require

the defendant to “direct his action at, or target, another individual,” see Borden,

593 U.S. at 429. To inflict an injury willfully or intentionally upon a victim, a

defendant must direct his action at or target the victim. Thus, § 273.5 requires

more than reckless conduct.

2. The parties also dispute whether the district court erred in imposing a

four-level enhancement for Culling’s possession of marijuana for sale while

carrying a firearm. We review the district court’s application of Sentencing

Guidelines for abuse of discretion and review the district court’s findings of fact

for clear error. United States v. Gasca-Ruiz, 852 F.3d 1167, 1170 (9th Cir. 2017)

(en banc). This standard is “significantly deferential” and requires a “definite and

firm conviction that a mistake has been committed.” United States v. Murdoch, 98

F.3d 472, 475 (9th Cir. 1996) (internal quotations and citation omitted).

The district court did not clearly err in its finding that Culling possessed 241

grams of marijuana. In the presentencing report, the probation officer submitted a

factual finding that Culling possessed 241 grams of marijuana. Culling did not

object to this finding. Thus, the district court did not err in accepting it as fact. See

FED. R. CRIM. P. 32(i)(3)(A) (sentencing court “may accept any undisputed portion

of the presentence report as a finding of fact.”). Nor did the district court clearly

4 err in finding that Culling possessed the marijuana for sale. The district court

inferred from the weight of the marijuana and the number of dosage units that

Culling possessed for sale. Such an inference is not clearly erroneous. See

Murdoch, 98 F.3d at 475.

Finally, the district court did not abuse its discretion in applying the four-

level enhancement under § 2K2.1(b)(6)(B). Under that guideline, a district court

may impose an enhancement if a defendant “possesse[s] . . . any firearm . . . with

knowledge, intent, or reason to believe that it would be used or possessed in

connection with another felony offense.” § 2K2.1(b)(6)(B). Where “a firearm is

found in close proximity to drugs,” the “enhancement necessarily applies

because . . . the presence of the firearm has the potential of facilitating another

felony offense.” United States v. Parlor, 2 F.4th 807, 814–15 (9th Cir. 2021)

(quoting U.S.S.G. § 2K2.1 cmt. n.14(B)) (cleaned up).

AFFIRMED.