United States v. Robert Knopping

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 24, 2021
• Docket: 19-50322
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 24 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 19-50322

Plaintiff-Appellee, D.C. No. 3:18-cr-04451-LAB-1

v.

ROBERT WILLIAM KNOPPING, MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court for the Southern District of California Larry A. Burns, District Judge, Presiding

Submitted May 18, 2021**

Before: CANBY, FRIEDLAND, and VANDYKE, Circuit Judges.

Robert William Knopping appeals from the district court’s judgment and

challenges the 90-month sentence and several conditions of supervised release

imposed following his guilty-plea conviction for importation of methamphetamine,

in violation of 21 U.S.C. §§ 952, 960. We have jurisdiction under 28 U.S.C.

* 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). § 1291. We affirm in part, vacate in part, and remand.

Knopping first contends that, when calculating his Guidelines range, the

district court erred by declining to reduce his offense level by a third point for

acceptance of responsibility under U.S.S.G. § 3E1.1(b). We review the district

court’s application of the Guidelines to the facts for abuse of discretion. See

United States v. Herrera, 974 F.3d 1040, 1045 (9th Cir. 2020). The district court

did not abuse its discretion by concluding that Knopping’s failure to appear at the

initial sentencing and subsequent decision to abscond for several months were

inconsistent with complete acceptance of responsibility. See U.S.S.G. § 3E1.1

cmt. n.6 (“The timeliness of a defendant’s acceptance of responsibility is a

consideration under both subsections [of the Guideline], and is context specific.”);

United States v. Tuan Ngoc Luong, 965 F.3d 973, 991 (9th Cir. 2020) (acceptance

of responsibility adjustment turns on whether defendant expressed “personal

contrition” and “a genuine acceptance of responsibility for his actions” (internal

quotation marks omitted)).1 Though not necessary to our analysis, we also note

that the district court granted a substantial downward variance of 172 months from

the bottom of the applicable Guidelines range and fully explained why a greater

1 Though the district court did not impose it, the government recommended at sentencing that, because Knopping absconded, he should receive a two-level upward adjustment for obstruction of justice. Conduct resulting in an obstruction of justice enhancement “ordinarily indicates that the defendant has not accepted responsibility for his criminal conduct.” U.S.S.G. § 3E1.1 cmt. n.4.

2 19-50322 variance was not warranted.

Knopping also contends that the written judgment’s inclusion of the

mandatory and standard conditions of supervised release conflicts with the district

court’s oral pronouncement of sentence, which did not include these conditions.

However, imposition of mandatory and standard conditions is “implicit in an oral

sentence imposing supervised release.” United States v. Napier, 463 F.3d 1040,

1043 (9th Cir. 2006). Contrary to Knopping’s argument, nothing in Napier

requires the district court to state at sentencing that it will be imposing the standard

conditions. See id.

Finally, Knopping contends that four of the special conditions in the written

judgment contain additional restrictions that must be stricken because they were

not included in the oral pronouncement. We agree as to three of the conditions.

Specifically, the district court’s oral pronouncement of sentence did not include:

(1) the requirement in Special Condition 1 that Knopping “comply with both

United States and Mexican immigration laws;” (2) the requirements in Special

Condition 2 that Knopping “[a]llow for reciprocal release of information between

the probation officer and the treatment provider,” and “[m]ay be required to

contribute to the costs of services rendered in an amount to be determined by the

probation officer, based on ability to pay;” and (3) the requirement in Special

Condition 5 that Knopping “warn any other residents that the premises may be

3 19-50322 subject to searches pursuant to this condition.” We therefore vacate the judgment

and remand so the district court can enter a corrected written judgment that does

not contain the foregoing clauses. See United States v. Jones, 696 F.3d 932, 938

(9th Cir. 2012).

We disagree that the language of Special Condition 3 in the written

judgment conflicts with the court’s oral pronouncement. Rather, the phrase “or in

which you have an interest” clarifies what it means for Knopping to own a vehicle

for the purposes of reporting it to his probation officer. See Napier, 463 F.3d at

1043 (later written sentence controls when it “merely clarifies an ambiguity in the

oral pronouncement”).

AFFIRMED in part, VACATED in part, and REMANDED.

4 19-50322