FILED

NOT FOR PUBLICATION

JAN 22 2020

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 17-10490

Plaintiff-Appellee, D.C. No. 2:16-cr-00268-JJT-1

v.

MEMORANDUM*

ANTHONY WAYNE HAMILTON,

Defendant-Appellant.

Appeal from the United States District Court for the District of Arizona John Joseph Tuchi, District Judge, Presiding

Argued and Submitted December 6, 2019 San Francisco, California

Before: W. FLETCHER and MILLER, Circuit Judges, and PREGERSON,** District Judge.

Anthony Hamilton was tried and convicted of eleven counts of Hobbs Act

Robbery, in violation of 18 U.S.C. § 1951(a), and eleven counts of Possessing and

Brandishing a Firearm During and in Relation to a Crime of Violence, in violation

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Dean D. Pregerson, United States District Judge for the Central District of California, sitting by designation. of 18 U.S.C. § 924(c). He now challenges his convictions on several grounds. The

convictions stand, but we remand the case for the district court to inquire into

Hamilton’s dissatisfaction with his attorney at sentencing.

The district court did not violate Hamilton’s Fourth Amendment right by

admitting the cell phone site location information (“CSLI”). This claim was not

preserved with an objection at trial, and the defense did not allege good cause for

that failure in the opening brief. But even if the issue had been properly preserved,

it is meritless. In 2018, the Supreme Court ruled that the acquisition of CSLI does

constitute a search under the Fourth Amendment. Carpenter v. United States, 138

S. Ct. 2206, 2217 (2018). But the Ninth Circuit has since ruled that “CSLI

acquired pre-Carpenter is admissible – so long as the Government satisfied the

[Stored Communications Act]’s then-lawful requirements – under Krull’s good-

faith exception.” United States v. Korte, 918 F.3d 750, 759 (9th Cir. 2019)

(applying Illinois v. Krull, 480 U.S. 340, 342 (1987)). There is no dispute about

whether law enforcement complied with the Stored Communications Act. No

Fourth Amendment violation occurred.1

1 Appellant’s Stipulated Motion to Supplement the Record (Dkt. 15) is granted. However, the supplemental material does not change the above analysis. 2 Hamilton contends that the district court committed reversible error by

permitting a law enforcement officer to testify as an expert without Rule 16

compliance or a specific jury instruction. Because this issue was not preserved, we

review for plain error. United States v. Freeman, 498 F.3d 893, 905 (9th Cir.

2007); United States v. Conti, 804 F.3d 977, 981 (9th Cir. 2015). The officer’s

testimony was not expert testimony because he did not rely on “specialized

knowledge.” Fed. R. Ev. 701 (Advisory Committee notes); United States v.

Barragan, 871 F.3d 689, 704 (9th Cir. 2017) (“[T]he line between lay and expert

opinion depends on the basis of the opinion, not its subject matter.”) (emphasis

added). Rather, Pluta’s testimony incorporated information “rationally based on

[his] perception” during the investigation. Fed. R. Evid. 701.

The district court instructed the jury that a Hobbs Act Robbery occurs, in

relevant part, when “the defendant induced [the victims] to part with property by

wrongful use of the [sic] actual or threatened force, violence, or fear.” Hamilton

alleges that the district court committed reversible error by omitting “of injury”

from the phrase “fear of injury.” The defense cites no cases for the proposition that

the omission of the phrase ‘of injury’ was error. But even if it was error, the error

did not affect Hamilton’s substantial rights because the error did not prejudice him

or affect the outcome of the proceedings. United States v. Olano, 507 U.S. 725,

3 734 (1993). The record is replete with examples of the robbery victims expressing

fear – not generalized fear, but fear “of injury.” The defense offers no concrete

analysis about how the addition of the phrase ‘of injury’ would have altered the

proceedings.

Nor did the district court err by instructing the jury that a violation of the

Hobbs Act is a crime of violence under § 924(c). Precedent dictates that Hobbs

Act Robbery is a “crime of violence” for the purposes of 18 U.S.C. § 924(c).

Aside from this court’s statement in Mendez that Hobbs Act Robbery “indisputably

qualifies as a crime of violence,” United States v. Mendez, 992 F.2d 1488, 1491

(9th Cir. 1993), offenses very similar to Hobbs Act Robbery have been categorized

as crimes of violence for the purposes of statutes analogous to § 924(c). See United

States v. Selfa, 918 F.2d 749, 751 (9th Cir. 1990) (federal bank robbery). Stokeling

v. United States, 139 S. Ct. 544, 551 (2019), precludes Hamilton’s argument that

common-law force is insufficient.

Hamilton is not entitled to resentencing under the First Step Act. Because

his conviction is on appeal and has not yet become final, the law at the time of the

appellate decision – including the First Step Act – governs. See Henderson v.

United States, 568 U.S. 266, 271–73 (2013). Therefore, the question is whether

the First Step Act, on its own terms, grants Hamilton resentencing. It does not.

4 Section 403 of the First Step Act excludes Hamilton because his sentence has

already been “imposed.” Cf. United States v. Davis, 139 S. Ct. 2319, 2324 n.1 (“In

2018, Congress changed the law so that, going forward, only a second § 924(c)

violation committed ‘after a prior [§ 924(c)] conviction ... has become final’ will

trigger the 25-year minimum.”) (emphasis added) (citation omitted); United States

v. McDonald, 611 F.2d 1291, 1292 (9th Cir. 1980) (“The sentence sought to be

vacated was imposed on October 8, 1976 following the vacation of a sentence

previously imposed on November 6, 1972, under which appellant was granted

probation.”) (emphasis added) (identifying the imposition of a sentence as a

discrete moment in time).

However, the district court did err by failing to inquire when, during

sentencing, Hamilton expressed dissatisfaction with his attorney. “When a trial

court is informed of a conflict between trial counsel and a defendant, the trial court

should question the attorney or defendant privately and in depth and examine

available witnesses[.]” Daniels v. Woodford, 428 F.3d 1181, 1200–01 (9th Cir.

2005) (quotation marks and citations omitted). In cases where the trial court

conducted no inquiry into the nature and extent of the conflict between a defendant

and counsel, or even an insufficiently searching inquiry, we have found an abuse of

discretion in the court’s denial of a motion to substitute counsel. Id. at 1200–01;

5 United States v. Moore, 159 F.3d 1154, 1160–61 (9th Cir. 1998); Velazquez, 855

F.3d 1021, 1035, 1037 (9th Cir. 2017). Here, Defendant’s unambiguous statement

that he was not satisfied with his attorney — in conjunction with counsel’s

acknowledgment that, as a result of that dissatisfaction, she had no information

other than what was contained in the presentence report — was sufficient to put the

district court on notice that some conflict existed. Because the district court

conducted no inquiry at all, denying Hamilton’s motion was an abuse of discretion.

We remand for the court to properly evaluate the source and nature of Hamilton’s

expressed dissatisfaction with his attorney and, if necessary, to assign new counsel

for re-sentencing.

AFFIRMED IN PART, REVERSED AND REMANDED IN PART.

6

FILED

United States v. Hamilton, No. 17-10490 JAN 22 2020

MOLLY C. DWYER, CLERK

MILLER, J., concurring in part and dissenting in part: U.S. COURT OF APPEALS

I join in the court’s disposition and reasoning, except as to the last

paragraph. I agree that it is a good practice for a court to inquire further when a

defendant expresses dissatisfaction with counsel, but our case law does not require

it to do so. In Daniels v. Woodford, 428 F.3d 1181, 1200 (9th Cir. 2005), we held

that a court must question counsel and the defendant after being “informed of a

conflict” between them. But Hamilton’s simple “no” in response to the question

“have you been satisfied with the representation that [counsel] has given you” did

not inform the court of a conflict. Still less was that one-word answer a motion to

substitute counsel. Treating it as such is unwarranted in light of Hamilton’s history

of seeking new counsel. After Hamilton’s prior counsel moved to withdraw, the

court granted the motion but explained to Hamilton that “[t]he fact that you’re

dissatisfied or may be dissatisfied with an attorney is not a reason for me to give a

new lawyer,” and that only a conflict that “breaks down . . . the relationship or the

communication” would create “a potential for . . . ineffective assistance of

counsel” establishing a basis for substitution. And although counsel stated that

Hamilton had not told her of any corrections to the presentence report, she did not

attribute that to his dissatisfaction or to a breakdown in their relationship. I do not believe the district court abused its discretion in declining to hold a hearing on a

motion that Hamilton did not make, so I would affirm the judgment in all respects.