United States v. Kenneth Knockum

• Court: Court of Appeals for the Ninth Circuit
• Decided: September 27, 2018
• Docket: 17-10148
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION SEP 27 2018 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 17-10148

Plaintiff-Appellee, DC No. 2:14-cr-00115-JAM-1

v. MEMORANDUM* KENNETH KNOCKUM,

Defendant-Appellant.

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.

* 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. 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 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.