United States v. Klensch

87 F.4th 1159

UNITED STATES of America, Plaintiff-Appellee, v. William David KLENSCH, Defendant-Appellant.

No. 22-50222

United States Court of Appeals, Ninth Circuit

Argued and Submitted July 18, 2023 Pasadena, California

Filed December 8, 2023

Appeal from the United States District Court for the Southern District of California, Cynthia A. Bashant, District Judge, Presiding, D.C. No. 3:22-cr-01359-BAS-1

Jessica Agatstein (argued), Federal Defenders of San Diego Inc., San Diego, California, for Defendant-Appellant.

Andrew Y. Chiang (argued), Assistant United States Attorney; Daniel E. Zipp, Assistant United States Attorney, Appellate Section Chief, Criminal Division; Randy S. Grossman, United States Attorney; United States Department of Justice, United States Attorney's Office, San Diego, California; for Plaintiff-Appellee.

Before: A. Wallace Tashima and Danielle J. Forrest, Circuit Judges, and Kathleen Cardone,^* District Judge.

Opinion by Judge Forrest;

Partial Dissent by Judge Cardone

OPINION

FORREST, Circuit Judge:

Defendant-Appellant William Klensch appeals his sentence after pleading guilty to one count of transportation of an illegal alien. Over Klensch's objection, the district court followed the presentence report's (PSR) recommendations to not grant a minor-role reduction under U.S.S.G. § 3B1.2 and to impose a six-level dangerous-weapon enhancement under § 2L1.1(b)(5)(C) because Klensch possessed a stun gun during his offense. We have jurisdiction under 28 U.S.C. § 1291, and we affirm as to the dangerous-weapon enhancement and vacate and remand for resentencing for the district court to conduct a proper minor-role analysis.

I. BACKGROUND

In May 2022, a home inspector with whom Klensch had worked offered him $500.00 to pick up an unspecified number of "workers" at a grocery store near the border in Jacumba, California and transport them to Spring Valley, California. Klensch drove to the designated location and picked up two men. That same day, a United States Border Patrol agent working in the area was notified to watch for a rental car matching the general description of Klensch's vehicle that had raised law enforcement's suspicion. The agent observed Klensch's vehicle drive behind a local store, reappear a few minutes later, pull onto the highway, and drive away at a high rate of speed. Another agent was contacted and pulled over Klensch's vehicle. Klensch consented to the agent opening the rear door of his car, and the agent discovered two men trying to hide in the back seat.

Border Patrol determined that the two men were Mexican citizens without authorization to be in the United States, and all the occupants in the car were arrested and transported to a Border Patrol station. Agents discovered that Klensch had an extensive criminal history. They also found a stun gun and several packages of personal-use drugs in Klensch's driver-side door compartment. Klensch later explained that most of his personal property was in his car because he was homeless and preparing to move to Washington.

The two male passengers confirmed that they were Mexican citizens without authorization to be in the United States. One of them disclosed that he paid $8,500 to be illegally smuggled into the United States. He also explained that someone directed him by phone to an initial location, where he hid until he received instructions to go to the location where Klensch picked him up.

The Government charged Klensch with two counts of illegal transportation of an alien under 8 U.S.C. § 1324(a)(1)(A)(ii). Klensch pleaded guilty to one count under a plea agreement, and he agreed to request a PSR. The PSR calculated an offense level of 15 and a category VI criminal history, resulting in a Guideline range of 33-41 months' imprisonment. The PSR recommended against applying a two-level minor-role reduction because the evidence was insufficient "to support that [Klensch] was substantially less culpable than other participants to support a reduction under USSG § 3B1.2." And in its offense-level calculation, the PSR applied a six-level dangerous-weapon enhancement under U.S.S.G. § 2L1.1(b)(5)(C) for possession of the stun gun during the offense. The PSR recommended 37 months' imprisonment and three years' supervised release.

Klensch objected in writing to the PSR. He argued that he was entitled to a minor-role reduction because the factors governing this analysis weighed in his favor and he was "substantially less culpable than the average participant in the criminal activity of migrant smuggling." He also argued that the dangerous-weapon enhancement was improper because the Government had not proven by clear and convincing evidence that he possessed the stun gun in relation to the crime charged.

Klensch calculated his Guideline range as 6-12 months' imprisonment based on, among other things, a base offense level of 12, a two-level minor-role reduction, and no dangerous-weapon enhancement. He argued for a 13-month custody sentence with no supervision because of "the things in his car." The Government calculated a 18-24 months Guideline range and requested a 21-month sentence.

At the sentencing hearing, Klensch argued both the minor-role reduction and dangerous-weapons enhancement. The district court did not inquire about the minor-role reduction, but it did ask Klensch why he had the stun gun. Klensch responded that he had it for "protection" in case he needed "to deter anybody away from" him. Klensch's counsel interjected and explained that Klensch was homeless and in the process of moving to Washington to be with family, and thus had all his personal property with him in his car.

After hearing the parties' arguments, the district court issued its decision from the bench, following the recommendations in the PSR. In cursory terms, the district court stated that it declined to apply a minor-role reduction because "Klensch was the one transporting the individuals" and the evidence did not show "his role was minor." And the district imposed the dangerous-weapon enhancement because "[Klensch] was engaged in a dangerous venture," and there was "evidence that [the stun gun] was related to the offense. It was possessed right where he could grab it, in case he needed it against the individuals who were in the car with him or anyone who challenged him while he was committing this offense." Based on its findings, the district court calculated a Guideline range of 33-41 months, and it sentenced Klensch to a low-end 33 months' imprisonment with three years of supervised release. Klensch timely appealed.

II. DISCUSSION

A. Minor-Role Adjustment

Klensch contends that he was entitled to a minor-role reduction because he had no knowledge of the full alien smuggling operation, he was asked to pick up "workers" and did not know he would be transporting illegal aliens, and he was paid only a small sum. He argues that the district court applied the wrong legal standard when it determined that he was not entitled to this reduction because he personally transported the two men.

1.

As an initial matter, the Government argues that this issue must be reviewed for plain error because Klensch did not challenge the sufficiency of the district court's reasoning below. Federal Rule of Criminal Procedure 51(b) sets out "a contemporaneous-objection rule": to preserve a claim of error, a party must " 'inform[ ] the court—when the court ruling or order is made or sought—of the action the party wishes the court to take, or the party's objection to the court's action and the grounds for that objection.' " Puckett v. United States, 556 U.S. 129, 135, 129 S.Ct. 1423, 173 L.Ed.2d 266 (2009) (quoting Fed. R. Crim. P. 51(b)). Sentencing objections "must have a specific substantive basis" that "provides the district court with an opportunity to address the error in the first instance and allows this court to engage in more meaningful review." United States v. Grissom, 525 F.3d 691, 694 (9th Cir. 2008) (citation omitted). Such objections may be raised at the sentencing hearing or in written objections to the PSR. See United States v. Hammond, 742 F.3d 880, 884 (9th Cir. 2014) (concluding that objections made in a "sentencing memorandum and at sentencing" are "preserved"); United States v. Barnes, 993 F.2d 680, 684 (9th Cir. 1993) (concluding that "written objections to the presentence report" are "sufficient to preserve the issue").

Here, Klensch argued, both in his objections to the PSR and at his sentencing hearing, that he was "less culpable than the average" participant and thus was entitled to the minor-role reduction. He specifically asserted that a comparative analysis is required and that it is not determinative "that a defendant performs an essential or indispensable role in the criminal activity." This is the same thrust of his argument on appeal: that the district court erred by not comparing his level of culpability to that of the other participants involved in his criminal activity and by mistakenly asserting that he did not qualify for a minor-role reduction because he "was the one transporting the individuals." Because we conclude that Klensch properly preserved his challenge related to the minor-role reduction, we review de novo whether the district court applied the correct legal standard in denying a minor-role reduction, and we review its factual findings for clear error and its application of the Guidelines to the facts for abuse of discretion. United States v. Gasca-Ruiz, 852 F.3d 1167, 1170 (9th Cir. 2017) (en banc).

2.

Turning to the merits, § 3B1.2(b) of the Guidelines allows for a reduction in the offense level if the defendant "was a minor participant in [the] criminal activity." To receive this reduction, the defendant must prove that he is "substantially less culpable than the average participant in the charged criminal activity." United States v. Diaz, 884 F.3d 911, 914 (9th Cir. 2018) (internal quotation marks and citation omitted). Before 2015, there was...