                                                                              FILED
                           NOT FOR PUBLICATION                                 JUN 10 2011

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



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 10-10168

              Plaintiff - Appellee,              D.C. No. 2:09-cr-00479-JAT-1

  v.
                                                 MEMORANDUM*
WILLIAM PHILLIP MURPHY,

              Defendant - Appellant.


                   Appeal from the United States District Court
                            for the District of Arizona
                   James A. Teilborg, District Judge, Presiding

                       Argued and Submitted May 11, 2011
                            San Francisco, California

Before: HUG and PAEZ, Circuit Judges, and WATSON, District Judge.**

       William P. Murphy appeals the district court’s order denying his motion to

suppress evidence obtained following his arrest. He also appeals his conviction




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Michael H. Watson, District Judge for the U.S.
District Court for Southern Ohio, Columbus, sitting by designation.
and sentence for being a felon in possession of a firearm in violation of 18 U.S.C.

§§ 922(g)(1) and 924(a)(2). We affirm.1

                                          I.

      Murphy contends that the district court erred in denying his motion to

suppress because the police did not have probable cause to make the arrest. We

review de novo a district court’s denial of a motion to suppress. United States v.

Washington, 490 F.3d 765, 769 (9th Cir. 2007). Factual findings made at the

suppression hearing are reviewed for clear error. United States v. Basher, 629 F.3d

1161, 1165 (9th Cir. 2011). “A police officer has probable cause to effect an arrest

if ‘at the moment the arrest was made . . . the facts and circumstances within [his]

knowledge and of which [he] had reasonably trustworthy information were

sufficient to warrant a prudent man in believing’ that the suspect had violated a

criminal law.” Orin v. Barclay, 272 F.3d 1207, 1218 (9th Cir. 2001) (quoting Beck

v. Ohio, 379 U.S. 89, 91 (1964)).

      Here, the officers had probable cause to arrest Murphy for the unlawful

failure to return rental property, a misdemeanor under Arizona state law. See Ariz.




      1
      Because the parties are familiar with the facts of this case, we do not recite
them here except as necessary to explain the decision.

                                          2
Rev. Stat. § 13-1806.2 When the police saw an unidentified man accessing the

back of the rental truck, they called the rental company and learned that the truck

had been rented to Murphy and had not been returned in over a month. They also

discovered that the rental agency had not received any further notice from Murphy

regarding his continued rental of the truck. Although Murphy argues that the

police did not identify him until after his arrest, the district court did not clearly err

in its determination that the arresting officer identified Murphy prior to the arrest

based on his previous encounters with Murphy. Thus, police had probable cause to

arrest Murphy because, at the time of the arrest, they had a reasonable belief that

Murphy had violated the law.

                                            II.

      Murphy contends that prosecutorial misconduct resulted in an unfair trial.

Because Murphy failed to object to any instances of misconduct, we review for

plain error. See United States v. Olano, 507 U.S. 725, 731-37 (1993). “Plain error

is found only where there is (1) error, (2) that was clear or obvious, (3) that

affected substantial rights, and (4) that seriously affected the fairness, integrity, or

public reputation of the judicial proceedings.” United States v. Romero-Avila, 210



      2
       Arizona recently amended the statute to make any failure to return a motor
vehicle a felony. 2011 Ariz. Sess. Laws 38.

                                            3
F.3d 1017, 1022 (9th Cir. 2000) (quotations omitted). In applying this standard,

the court considers “all circumstances at trial.” Id.

      We reject Murphy’s argument on the ground that his substantial rights were

not affected. Accepting all of Murphy’s testimony as true, the outcome of the

proceeding would not have been any different because Murphy’s affirmative

defense of necessity fails. Murphy testified that he saw the gun in the dirt under

the truck and picked it up to protect any children who might have come across it.

Yet Murphy does not offer any evidence of imminent harm to children other than

his own speculative testimony that children may have been in the area.3 Because

the ultimate result would be the same even absent the alleged prosecutorial

misconduct, Murphy’s substantial rights were not affected. Therefore, there was

no plain error.

                                          III.

      Murphy also contends that the district court erred in its denial of his motion

in limine to preclude any evidence of his resisting arrest. “We review a district


      3
       We also note that the affirmative defense instruction that was given, which
merely required a showing of “imminent harm,” was more generous than the
affirmative defense of justification recognized in our cases. See United States v.
Wofford, 122 F.3d 787, 790 (9th Cir. 1997) (holding that the proper justification
defense to a felon-in-possession charge requires in part that the defendant
demonstrate “unlawful and present threat of death or serious bodily injury”
(quoting United States v. Lemon, 824 F.2d 763, 765 (9th Cir. 1987))).

                                           4
court’s denial of a motion in limine for abuse of discretion.” United States v.

Rambo, 74 F.3d 948, 955 (9th Cir. 1996). Murphy’s resistance to arrest was

indicative of his knowing possession and criminal intent with respect to the

firearm. Although the jury was free to draw its own inferences from the fact of his

resistance, the evidence was relevant and admissible to prove Murphy’s intent and

undermine his affirmative defense. Therefore, it cannot be said that the district

court abused its discretion because its decision does not “lie[] beyond the pale of

reasonable justification under the circumstances.” Boyd v. City and Cnty. of San

Francisco, 576 F.3d 938, 943 (9th Cir. 2009) (quoting Harman v. Apfel, 211 F.3d

1172, 1175 (9th Cir. 2000)).

                                         IV.

      Murphy maintains that the district court erred at sentencing by denying him

a downward adjustment for acceptance of responsibility. “A district court’s

decision about whether a defendant has accepted responsibility is a factual

determination reviewed for clear error.” United States v. Rosas, 615 F.3d 1058,

1066 (9th Cir. 2010) (quotation omitted). A defendant’s reason or motivation for

committing a crime is not a dispositive factor in determining whether to grant the

adjustment “unless the claim was intended as a defense to liability for the charged

offense.” United States v. Gonzalez, 16 F.3d 985, 991 (9th Cir. 1993).


                                          5
      Here, Murphy contends that his combined stipulations and admission to the

elements of the crime constitute an acceptance of responsibility. However, he

ignores that he never fully accepted liability for the offense as he continued to

assert his necessity defense throughout trial. Therefore, the district court did not

clearly err in its denial of an adjustment for acceptance of responsibility.

                                          V.

      Murphy also argues that he should benefit from a recent amendment to the

Sentencing Guidelines, which eliminated a two-point increase for the recency of a

conviction set out in former Guideline § 4A1.1(e). See U.S. Sentencing Guidelines

Manual Supp. to App. C, Amendment 742 (“Amendment 742”). This argument is

without merit.

      The district court was required to apply the version of the Guidelines that

was in effect on the date Murphy was sentenced. See 18 U.S.C. §

3553(a)(4)(A)(ii). Amendment 742 took effect on November 1, 2010, and Murphy

was sentenced on April 1, 2010. Amendment 742 has not been made retroactive.

See U.S.S.G. § 1B1.10(c) (2010). Accordingly, the district court did not err in

applying the two-point enhancement.

      AFFIRMED.




                                           6
