United States v. Timothy Binford

Opinion

FILED NOT FOR PUBLICATION MAR 30 2018 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 16-30286

Plaintiff-Appellee, D.C. No. 2:14-cr-00166-RMP-1

v. MEMORANDUM* TIMOTHY BINFORD,

Defendant-Appellant.

Appeal from the United States District Court for the Eastern District of Washington Rosanna Malouf Peterson, District Judge, Presiding

Argued and Submitted March 5, 2018 Seattle, Washington

Before: RAWLINSON, CLIFTON, and CHRISTEN, Circuit Judges.

Timothy Binford appeals the sentence imposed on him by the district court

following his jury trial conviction for unlawful possession of a firearm. We affirm.

We have already held that a conviction for felony harassment (threat to kill)

under Wash. Rev. Code § 9A.46.020(2)(b) is categorically a conviction for a

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. crime of violence. United States v. Werle, 877 F.3d 879, 884 (9th Cir. 2017).

Binford acknowledges that decision but argues that our earlier decision in United

States v. Valdivia-Flores, 876 F.3d 1201 (9th Cir. 2017), stands for the proposition

that no Washington state conviction can serve as an aggravated felony at all. See

id. at 1208–09. We are bound by our decision in Werle. The panel that rendered

that decision was aware of Valdivia-Flores and nonetheless concluded to the

contrary.

We have also held that a conviction for armed bank robbery under 18 U.S.C.

§ 2113(a), (d) is categorically a crime of violence. United States v. Watson, 881

F.3d 782, 786 (9th Cir. 2018).

The issue that remains is whether the district court erred in enhancing

Binford’s advisory guideline sentencing range under U.S.S.G. § 2K2.1(b)(6) for

possession of a firearm in connection with another felony offense. Application

Note 14(A) to the relevant Guideline states that subsection (b)(6)(B) “appl[ies] if

the firearm or ammunition facilitated or had the potential of facilitating, another

felony offense . . . .” (Emphasis added.) The district court found a sufficient

factual connection to support application of the enhancement. The district court’s

finding was not clearly erroneous. Binford possessed debit cards and credit cards

in the names of other individuals. The contents of Binford’s bag included the

2 firearm, drug paraphernalia and traces of methamphetamine, and items that were

described as a “‘Burglary 101’ toolset.” Beyond the proximity of those items, the

district court cited witness statements that connected Binford and his firearm to

burglaries and robberies, and observations of Binford going into a pawn shop and

engaging in other activity consistent with burglary and identity theft. The finding

that the firearm had the potential for facilitating a burglary was not clearly

erroneous.

AFFIRMED.