United States v. Bare, No. 14-10475 (9th Cir. 2015)
Annotate this CaseDefendant, a non-Indian who lives on tribal land with his common-law wife, was convicted of two counts of being a felon in possession of a firearm. The district court applied a 4-level sentencing enhancement for defendant's use of a firearm in connection with another felony offense, as well as his condition of supervised release permitting searches of his computers and other electronic devices by a U.S. Probation Officer. The court held that due to the Assimilative Crimes Ac (ACA), 18 U.S.C. 13, 1152, it does not matter whether the requisite felony offense occurred on tribal lands or within the state’s jurisdiction in order to apply an enhancement for discharging a firearm under U.S.S.G. 2K2.1(b)(6)(B); so long as a district court makes a properly supported factual finding from the record before it, establishing some nexus between computer use and the need for the sentence imposed to accomplish deterrence, protection of the public, or rehabilitation of the defendant, it is not an abuse of discretion for the district court to impose a condition of supervised release permitting the search of a defendant’s personal computers; and the court affirmed the judgment because the district court made such a permissible factual finding establishing nexus in this case, and because defendant is subject to punishment for committing the felony offense of disorderly conduct involving weapons in connection with his felon in possession conviction.
Court Description: Criminal Law. The panel affirmed a sentence imposed upon a defendant, a non-Indian who lives on tribal land, for two counts of being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). The panel held that the district court did not err in applying a 4-level enhancement under U.S.S.G. § 2K2.1(b)(6)(B) for use of a firearm in connection with another felony offense. The panel held that due to the Assimilative Crimes Act, it does not matter whether the requisite felony offense occurred on tribal lands or within the state’s jurisdiction in order to apply the § 2K2.1(b)(6)(B) enhancement. The panel concluded that the district court therefore properly applied the enhancement based on the defendant discharging a firearm over the head of an Indian while on the Navajo Reservation, which if committed elsewhere in Arizona, would qualify as felony disorderly conduct under Arizona Revised Statutes § 13-2904(A)(6). The panel held that the district court did not abuse its discretion by imposing a condition of supervised release permitting searches of the defendant’s computers and other electronic devices by a probation officer. The panel held that so long as a district court makes a factual finding establishing some nexus between computer use and one of the goals articulated in 18 U.S.C. § 3553(a)(2)(B), (a)(2)(C), or UNITED STATES V. BARE 3 (a)(2)(D), it is not an abuse of discretion for a district court to impose a condition of supervised release permitting the search of a defendant’s personal computers. The panel held that the district court’s finding that a nexus existed between the defendant’s potential computer use while he remains under supervised release and the need to deter his future criminal conduct—i.e., repeating the possession and pawning of prohibited firearms—was not clearly erroneous and was well-supported by the facts. Judge Kozinski dissented from the portion of the opinion approving the supervised release condition. He wrote that the majority disregards the command in 18 U.S.C. § 3583(d)(2)—that supervised release conditions impose “no greater deprivation of liberty than is reasonably necessary” to achieve the goals of supervised release—by allowing probation officers to search the defendant’s computer at any time, for any reason, even though the defendant did not use a computer to carry out his crime, and (so far as the panel knows) did not even own a computer when he committed the offense.
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