                                                                            FILED
                           NOT FOR PUBLICATION                              APR 05 2016

                                                                         MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                        U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 14-30170

              Plaintiff - Appellee,              D.C. No. 3:12-cr-05126-RBL-1

 v.
                                                 MEMORANDUM*
KENNETH RANDALE DOOR,

              Defendant - Appellant.


                   Appeal from the United States District Court
                     for the Western District of Washington
                   Ronald B. Leighton, District Judge, Presiding

                              Argued February 4, 2016
                             Submitted March 24, 2016
                                Seattle, Washington

Before: KOZINSKI, O’SCANNLAIN, and GOULD, Circuit Judges.

      Kenneth Door appeals both the denial of his motions to suppress evidence

and his sentence. We affirm Door’s conviction and defer resolution of Door’s

sentence until the Supreme Court issues a decision in Mathis v. United States, No.

15-6092 (U.S. 2016).


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Cir. R. 36-3.
      1.     Considering the totality of the circumstances, we conclude that

Officer Dougherty-Sanders had reasonable cause to search Door’s house. See

Wash. Rev. Code § 9.94A.631(1); State v. Jardinez, 338 P.3d 292, 295 (Wash.

App. 2014) (equating “reasonable cause” with “reasonable suspicion” under Terry

v. Ohio, 392 U.S. 1 (1968)). Door argues that Joe’s tip was unreliable, that

Hansen’s sense that he was followed by Door’s car was a mere hunch, and that the

officers’ belief that Door was home but not answering his door was innocuous.

“Terry, however, precludes this sort of divide-and-conquer analysis”—“taken

together,” these observations “‘warranted further investigation.’” United States v.

Arvizu, 534 U.S. 266, 274 (2002) (quoting Terry, 392 U.S. at 22).

       2.    Door forfeited his Miranda claim by not raising it before the district

court’s deadline for pretrial motions. See Fed. R. Crim. P. 12(b)(3)(C). The

exception in United States v. Vasquez, 858 F.2d 1387, 1389 (9th Cir. 1988), does

not apply here because it is not clear that the district court reviewed Door’s

Miranda claim on the merits. After Door challenged the admission of his jail

statements to Hansen on voluntariness and Miranda grounds, the government

solicited testimony about whether Dougherty-Sanders read Door his Miranda

rights at Door’s house, which had no bearing on the question whether Hansen

properly Mirandized Door at the prison nineteen days later. The district court also


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referred to Judge Bryan’s earlier finding regarding whether Door heard his

Miranda rights from Dougherty-Sanders on the day of arrest. In this context, it is

not clear that the district court’s ruling “I will grant the voluntariness and the

Miranda waiver” was referring to Hansen’s actions at the jail. As the Vasquez

exception does not apply, we decline to review the forfeited claim.

      3.     Door challenges the district court’s conclusion that his six prior

convictions for second-degree burglary in Washington State were “violent

felonies” under 18 U.S.C. § 924(e)(1), making him an armed career criminal. The

conclusion that Door should be sentenced under the Armed Career Criminal Act

(ACCA) raised Door’s sentencing guidelines level to 34. Because the Supreme

Court has granted certiorari in Mathis v. United States, No. 15-6092 (U.S. 2016),

which will address how federal courts determine whether a prior conviction

qualifies as a “violent felony” under the ACCA, we decline to consider Door’s

challenge at this time. Although the government’s position has changed during

this case, its change in position is understandable in light of our intervening

decision in Rendon v. Holder, 764 F.3d 1077 (9th Cir. 2014). Rather than accept

Door’s request to speculate about whether the Supreme Court decision in Mathis

will affect the outcome of this case, we believe that the prudent course is to wait

for the Supreme Court’s decision in Mathis.


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      4.     The government argues that even without the ACCA determination,

Door had a guidelines level of 34 because of enhancements for possessing a

destructive device, U.S.S.G. § 2K2.1(b)(3)(B), for possessing a firearm in

connection with another felony offense, U.S.S.G. § 2K2.1(b)(6)(B), and for

obstruction of justice, U.S.S.G. § 3C1.1. The district court did not make any

findings of fact regarding these enhancements.

      The destructive device enhancement cannot be applied to Door’s possession

of a seal bomb. We have held that “commercial explosives, absent proof of intent

to use such components as a weapon, fail to qualify as a ‘destructive device’ within

the meaning of 26 U.S.C. § 5845.” United States v. Fredman, 833 F.2d 837, 839

(9th Cir. 1987); see U.S.S.G. § 2K2.1, cmt., appl. n.1 (incorporating the statutory

definition for “destructive device” set forth in 26 U.S.C. § 5845(f)). So the seal

bomb might have been viewed as a destructive device if intended for use as a

weapon. But the government has never argued that Door had such intent, and we

see no evidence of such an intent in the record. On this record, the enhancement

cannot apply.

      Regarding the other two enhancements, the district court did not make the

requisite findings for us to determine whether they properly applied. Obstruction

of justice requires proof that Door “willfully obstructed or impeded, or attempted


                                          4
to obstruct or impede, the administration of justice.” U.S.S.G. § 3C1.1. The

conduct described in the presentence report would have been sufficient for such a

finding on the theory that Door wanted to discourage Hansen from testifying at

trial. But Door disputed this evidence, and the district court did not “rule on the

dispute” as required by Federal Rule of Criminal Procedure 32(i)(3)(B).

      Finally, the record contains evidence “that permits an inference that [the

firearms] facilitated or potentially facilitated—i.e., had some potential

emboldening role in”—Door’s alleged drug activity. See United States v.

Gonzales, 506 F.3d 940, 947 (9th Cir. 2007) (en banc) (quoting United States v.

Routon, 25 F.3d 815, 819 (9th Cir. 1994)). But the district court did not make a

finding that Door possessed a firearm in connection with another felony offense

such as selling drugs. U.S.S.G. § 2K2.1(b)(6)(B).

      Without the required factual findings—both on the enhancement for

obstruction of justice and on the enhancement for possession of a firearm in

connection with another offense—we cannot conclude that the enhancements

apply. After we resolve the ACCA issue once Mathis is decided by the Supreme

Court, if it is necessary, we will remand on these two sentencing enhancements so

that the district court can make findings of fact that either support or rule out the

enhancements.


                                           5
      5.     Door’s conviction is AFFIRMED. We defer resolution of Door’s

sentence pending the Supreme Court’s disposition of Mathis v. United States, No.

15-6092 (U.S. 2016). No petitions for rehearing or rehearing en banc shall be

entertained until we issue a decision regarding Door’s sentence.




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