                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        FEB 9 2018
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.    16-10117

                Plaintiff-Appellee,             D.C. No.
                                                1:12-cr-00266-AWI-BAM-1
 v.

LLOYD GEORGE KENNEY,                            MEMORANDUM*

                Defendant-Appellant.

                   Appeal from the United States District Court
                      for the Eastern District of California
                   Anthony W. Ishii, District Judge, Presiding

                    Argued and Submitted September 13, 2017
                            San Francisco, California

Before: WALLACE and WATFORD, Circuit Judges, and SANDS,** District
Judge.

      Defendant Lloyd George Kenney was convicted of Armed Bank Robbery,

Felon in Possession of a Firearm, and Using a Firearm During a Crime of

Violence. He appeals from the denial of replacement counsel, the denial of a



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
            The Honorable W. Louis Sands, United States District Judge for the
Middle District of Georgia, sitting by designation.
motion to suppress, and the conviction and sentence. We affirm.

      1. The district court did not abuse its discretion in denying Kenney’s request

for new counsel. See United States v. Mendez-Sanchez, 563 F.3d 935, 942 (9th Cir.

2009) (abuse of discretion standard). While counsel opposed Kenney’s pro se

motions for a continuance of trial and for replacement counsel, his statements and

conduct did not demonstrate the attorney-client relationship to be “antagonistic,

lacking in trust, and quarrelsome”—a level of breakdown we have previously

found when overturning a district court’s denial of new counsel. United States v.

Adelzo-Gonzalez, 268 F.3d 772, 780 (9th Cir. 2001). Here, counsel merely

explained to the district court that he was “ready for trial” and that “a continuance

wouldn’t help.” Counsel’s decision to oppose a motion for replacement counsel

standing alone does not then require the district court to grant such a motion. Cf.

Mendez-Sanchez, 563 F.3d at 943–44.

      Kenney’s unilateral decision to refuse to meet with counsel likewise does

not necessitate appointing new counsel. Kenney was already on his fourth lawyer,

and there is no indication he would have cooperated with a fifth for any length of

time. See id. at 944. His stated reasons for distrusting his attorney, that counsel

showed up unannounced for a presentence interview and picked up a presentence

report packet two days early, are minor and reconcilable. See id.

      Finally, any argument that counsel was ineffective in failing to object to the


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Armed Career Criminal Act enhancement or in contesting the Government’s

position that Kenney should be sentenced to the high end of the guidelines, is

beyond the scope of the district court’s denial of the motion for replacement

counsel which occurred prior to sentencing.

      2. The Government demonstrated reasonable suspicion to pull Kenney over

based on the following: (1) Kenney was found a quarter mile from the robbery

approximately three minutes after the police were dispatched, (2) he was on the

first through street in the same direction the robber fled, (3) he was wearing sweat

pants and a jacket on a warm morning, (4) he was a bit rushed, and (5) he was

parked in an unusual location with no walkways or houses where the officer had

never seen a vehicle parked before. Cf. McNeary v. Stone, 482 F.2d 804, 807 (9th

Cir. 1973) (proximity to crime site, late hour, and seriousness of crime established

reasonable suspicion). We consider the objective and reasonable inferences of the

evidence, United States v. Montero-Camargo, 208 F.3d 1122, 1129 (9th Cir.

2000), rendering irrelevant whether any particular witness found a single, specific

fact unusual. The district court properly considered the facts supporting reasonable

suspicion collectively and did not, as Kenney urges, consider innocent

explanations for each fact in isolation. See United States v. Cotterman, 709 F.3d

952, 968 (9th Cir. 2013). Because those facts together established reasonable

suspicion, the district court did not need to make a finding as to whether Kenney


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was wearing a helmet when he got into the van.

      Officer Todd Parsons pulled over the van Kenney was driving with

reasonable suspicion to believe Kenney had robbed a bank and was armed with a

handgun. Officer Parsons could not see Kenney when he pulled the vehicle over

and could not tell how many other people were in the van. In those circumstances,

drawing his weapon and ordering Kenney to keep his hands up, ordering him out

of the car and onto the ground, and then detaining him in a patrol car while

checking for weapons and other occupants in the van did not escalate the

investigatory stop into an arrest. See Washington v. Lambert, 98 F.3d 1181, 1189

(9th Cir. 1996). While the stop was intrusive, Officer Parsons understandably

feared for his safety based on the specific circumstances of the case and the actions

he took to temporarily detain Kenney were reasonable in light of the

dangerousness of the situation. See id. at 1185.

      This case is distinguishable from Kraus v. Pierce County where “[t]he only

information available to the deputies was that [the defendant’s] car had rapidly

exited a crowded parking lot near the robbery shortly after the robbery suspect had

entered the parking lot on foot.” 793 F.2d 1105, 1109 (9th Cir. 1986). In addition

to Kenney’s proximity to the crime scene in both place and time, and his hurried

behavior, Officer Parsons saw Kenney wearing inappropriate clothing for the

weather and saw the van parked in a peculiar spot. Kenney was therefore more


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likely to be the armed suspect law enforcement was seeking than was the defendant

in Krause, increasing the chances of a violent encounter.

      3. Kenney’s 18 U.S.C. § 924(c) conviction need not be vacated because the

underlying crime of armed bank robbery pursuant to 18 U.S.C. § 2113(a) and (d)

remains a crime of violence under United States v. Selfa, 918 F.2d 749, 751 (9th

Cir. 1990). See United States v. Gutierrez, 876 F.3d 1254, 1257 (9th Cir. 2017)

(reaffirming Selfa). Likewise, the district court did not plainly err in permitting the

conviction despite § 2113(a)’s alternative element of extortion. See United States v.

Gonzalez-Aparicio, 663 F.3d 419, 426–27 (9th Cir. 2011). Extortion is a separate

crime from bank robbery “by force and violence, or by intimidation.” 18 U.S.C. §

2113(a); United States v. Watson, No. 16-15357, 2018 WL 650990, at *3 (9th Cir.

Feb. 1, 2018). A jury could not convict Kenney for “bank robbery” if six jurors

concluded he extorted a bank employee and six jurors concluded he robbed a bank

by threatening force. Therefore, the statute is divisible and we need not consider

the alternative extortion element—which Kenney was not charged with violating—

in our elements analysis. See Watson, 2018 WL 650990, at *3.

      4. The district court did not plainly err in holding the conviction of

kidnapping for robbery is a “violent felony” under 18 U.S.C. § 924(e)(2)(B)(i).

That statute defines “violent felony” as one which “has as an element the use,

attempted use, or threatened use of physical force against the person of another.”


                                           5                                    16-10117
At the time of Kenney’s conviction, the relevant portion of California’s kidnapping

for robbery statute required the defendant to, in part, “forcibly steal, take, or arrest

any person.” Cal. Penal Code § 207 (1974). Kenney presents cases in which he

asserts courts have interpreted the force requirement more broadly than the federal

requirement under § 924(e). Compare In re Michele D., 59 P.3d 164, 172 (Cal.

2002) and People v. Camden, 548 P.2d 1110, 1112–13 (Cal. 1976) with Johnson v.

United States, 559 U.S. 133, 140 (2010). We review for plain error because the

issue was not raised before the district court. Gonzalez-Aparicio, 663 F.3d at 426–

27. Without controlling authority construing § 207 under § 924(e), and given the

“force” clause contained in § 207, any error committed by the district court was not

plain. See United States v. Gnirke, 775 F.3d 1155, 1164 (9th Cir. 2015).

      The district court also did not plainly err in holding Kenney’s prior

convictions of armed bank robbery are violent felonies. As explained above, armed

bank robbery remains a violent felony in this circuit. Watson, 2018 WL 650990, at

*3.

      AFFIRMED.




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