FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

KEVIN TERRELL PETERSON,

Defendant-Appellant.

No. 17-30084

D.C. No.

2:16-cr-00150-RSL-1

OPINION

Appeal from the United States District Court

Western District of Washington

Robert S. Lasnik, Senior District Judge, Presiding

Argued and Submitted June 15, 2018

Seattle, Washington

Filed September 4, 2018

Before: Milan D. Smith, Jr., and Paul J. Watford, Circuit 

Judges, and Douglas L. Rayes,

* District Judge.

Opinion by Judge Rayes

 * The Honorable Douglas L. Rayes, United States District Judge for 

the District of Arizona, sitting by designation.
2 UNITED STATES V. PETERSON

SUMMARY**

Criminal Law

The panel affirmed the district court’s denial of a motion 

to suppress, vacated a sentence, and remanded for 

resentencing in a case in which the defendant was convicted 

for being a felon in possession of a firearm in violation of 

18 U.S.C. § 922(g)(1).

The panel held that in denying the defendant’s motion to 

suppress the handgun found in his backpack, the district 

court properly concluded that the handgun inevitably would 

have been discovered in an inventory search at the time of 

booking. The panel wrote that had the officers arrested the 

defendant only on misdemeanor warrants, and had they 

complied with Revised Code of Washington § 10.31.030, 

the defendant would have been able to post bail, thereby 

avoiding the booking and inventory search altogether. But 

because the officers would have booked the defendant on 

obstruction or resisting arrest charges absent discovery of the 

gun, and because bail had not yet been set on those charges, 

the defendant would have been taken into custody upon 

booking, and his possessions would have been inventoried 

at that time.

The panel held that the district court erred in treating the 

defendant’s first-degree robbery conviction under Revised 

Code of Washington § 9A.56.190 as a crime of violence 

under U.S.S.G. §§ 2K2.1(a)(2) and 4B1.2. The panel

 ** This summary constitutes no part of the opinion of the court. It 

has been prepared by court staff for the convenience of the reader.
UNITED STATES V. PETERSON 3

rejected the government’s argument that Washington firstdegree robbery is a categorical match for the offenses of 

robbery and extortion enumerated in § 4B1.2(a)(2). The 

panel explained that because Washington robbery 

encompasses threats to property, it does not fall categorically 

within generic robbery; and that under a definition of 

“extortion” added to § 4B1.2’s commentary in 2016, 

Washington’s robbery statute is not a categorical match 

because it allows for a conviction to rest on fear of injury to 

property alone.

The panel held that the district court did not abuse its 

discretion in applying a two-level enhancement for reckless 

endangerment during flight under U.S.S.G. § 3C1.2 because 

the defendant’s actions reasonably can be construed as being 

“in preparation of flight,” and because these actions 

reasonably could be viewed as presenting a substantial risk 

of harm to the officers and others on the interstate.

COUNSEL

Jesse Cantor (argued) and Ann K. Wagner, Assistant Federal 

Public Defenders; Office of the Federal Public Defender,

Seattle, Washington; for Defendant-Appellant.

Charlene Koski (argued), Assistant United States Attorney; 

Annette L. Hayes, United States Attorney; United States 

Attorney’s Office, Seattle, Washington; for PlaintiffAppellee.
4 UNITED STATES V. PETERSON

OPINION

RAYES, District Judge:

Defendant-Appellant Kevin Peterson appeals the district 

court’s denial of his motion to suppress the handgun found 

in his backpack. The district court concluded that the 

evidence inevitably would have been discovered in an 

inventory search. We affirm the order.

Peterson also challenges his sentence of 48 months’ 

imprisonment imposed for being a felon in possession of a 

firearm, in violation of 18 U.S.C. § 922(g)(1). The district 

court concluded that Peterson’s prior conviction for firstdegree robbery was a “crime of violence” as that term is 

defined by U.S. Sentencing Guidelines (“Sentencing 

Guidelines” or “U.S.S.G.”) section 4B1.2(a) which, along 

with a prior controlled substance offense, increased his base 

offense level to 24 under U.S.S.G. section 2K2.1(a)(2). The

district court also concluded that his conduct warranted a 

two-level enhancement under U.S.S.G. section 3C1.2 for 

reckless endangerment during flight. Finding that 

Peterson’s prior conviction for first-degree robbery was not 

a “crime of violence,” we affirm in part and reverse in part. 

Accordingly, Peterson’s sentence is vacated, and this matter 

remanded for resentencing.

I. Background

On August 14, 2015, King County police officers 

arrested Peterson on outstanding warrants. At the time of the 

arrest, the arresting officer instructed Peterson to remove his 

backpack so that he could be handcuffed. The officer waited 

to search the backpack until after he had handcuffed and 

secured Peterson in the back of the patrol car. Upon opening 

the backpack, the officer discovered a handgun, which 
UNITED STATES V. PETERSON 5

officers on the scene soon determined was stolen. The 

officers informed Peterson of additional charges for 

possession of the firearm, and then transported him to King 

County Jail, where Peterson was booked on charges of 

unlawful possession of a firearm and possession of a stolen 

firearm, both felony offenses.

After indictment for being a felon in possession of a 

firearm, Peterson filed a motion to suppress evidence of the 

handgun discovered in his backpack. The district court 

denied the motion, finding that the gun inevitably would 

have been discovered during an inventory search of the 

backpack during Peterson’s booking.

On January 19, 2017, at the close of a stipulated-facts 

bench trial, the district court found Peterson guilty of being 

a felon in possession of a firearm. Before sentencing, the 

United States Probation Office submitted a Presentence 

Report and a Sentencing Recommendation. The Probation 

Officer’s calculation of Peterson’s base offense level 

incorporated, among other things, a finding that Peterson’s 

prior Washington state felony conviction for first-degree 

robbery constituted a crime of violence under the 

Guidelines, and a two-level enhancement for reckless 

endangerment during flight.

Peterson objected to the sentencing recommendations, 

but the district court overruled his objections and applied the 

recommended base offense level. Peterson timely appealed 

the district court’s denial of his motion to suppress and its 

application of sentencing enhancements under sections 

2K2.1(a)(2) and 3C1.2.
6 UNITED STATES V. PETERSON

II. Discussion

Peterson raises several arguments on appeal. First, he 

claims that the district court erred in denying his motion to 

suppress because the inevitable discovery exception to the 

exclusionary rule is inapplicable. Second, Peterson 

challenges his sentence, arguing that the district court 

improperly found his first-degree robbery conviction 

constituted a crime of violence under sections 2K2.1(a)(2) 

and 4B1.2, and in applying a two-level enhancement for 

reckless endangerment during flight under section 3C1.2. 

We address each of these claims in turn.

A. Motion to Suppress

“We review de novo motions to suppress, and any factual 

findings made at the suppression hearing for clear error.” 

United States v. Negrete-Gonzales, 966 F.2d 1277, 1282 (9th 

Cir. 1992). “[I]nevitable discovery rulings are mixed 

questions [of law and fact] that . . . should be reviewed under 

a clearly erroneous standard.” United States v. Lang, 

149 F.3d 1044, 1047 (9th Cir. 1998).

The exclusionary rule allows courts to suppress evidence 

obtained as a result of an unconstitutional search or seizure. 

Mapp v. Ohio, 367 U.S. 643, 655–66 (1961). The 

exclusionary rule does not apply, however, if the 

government establishes by a preponderance of the evidence 

that the unlawfully obtained information “ultimately or 

inevitably would have been discovered by lawful means[.]” 

Nix v. Williams, 467 U.S. 431, 444 (1984); see also United 

States v. Andrade, 784 F.2d 1431, 1433 (9th Cir. 1986) 

(holding that potentially unconstitutional search incident to 

arrest did not warrant application of the exclusionary rule 

because police would have found the evidence while taking 

inventory of the defendant’s belongings during booking).
UNITED STATES V. PETERSON 7

Here, the district court found that, under the 

circumstances, the warrantless search of Peterson’s 

backpack was not justified as a search incident to arrest, but 

that the evidence nonetheless was not subject to exclusion 

because it inevitably would have been discovered during an 

inventory search at the time of booking. Specifically, the 

district court found that “even if the deputies had not 

searched [Peterson’s] backpack, they would have had cause 

to book him for something more serious than the warrants: 

obstructing a law enforcement officer or resisting arrest 

. . . .”

On appeal, the government contends that the handgun 

discovered in Peterson’s backpack inevitably would have 

been discovered during the inventory search, but also argues 

the search was a proper search incident to arrest. For 

purposes of this decision, we will assume that the district 

court properly found that the warrantless search of 

Peterson’s backpack was not justified as a search incident to 

arrest. We affirm because the district court properly applied 

the inevitable discovery rule.

“[I]t is not ‘unreasonable’ for police, as part of the 

routine procedure incident to incarcerating an arrested 

person, to search any container or article in his possession, 

in accordance with established inventory procedures.” 

Illinois v. Lafayette, 462 U.S. 640, 648 (1983); see also 

United States v. Cormier, 220 F.3d 1103, 1111 (9th Cir. 

2000) (noting that courts should consider state law in 

addition to any local police department policies when 

determining lawfulness of inventory search conducted by 

state or local police officers). Peterson does not dispute that, 

if he were booked, his backpack would inevitably have been 
8 UNITED STATES V. PETERSON

subject to an inventory search.1 Instead, he contends that the 

discovery of the handgun was not inevitable because, but for 

the illegal search of his backpack at the time of his arrest, the 

officers would have had cause to book him only on his 

misdemeanor warrants, for which he would have posted bail 

and avoided the inventory search altogether.

We agree that the evidence suggests that Peterson’s 

backpack would not have been subject to an inventory search 

had he been arrested only for his misdemeanor warrants. 

Under Washington law, arrestees capable of posting bail 

may avoid incarceration. See State v. Smith, 783 P.2d 95, 98 

(Wash. Ct. App. 1989). Revised Code of Washington 

section 10.31.030 provides that, when someone is arrested 

under the authority of a warrant, the arresting officer must 

provide the arrestee with notice of the charge and the amount 

of bail set by the warrant. Smith, 783 P.2d at 98. An 

inventory search conducted before an arrestee is provided 

 1 The officers testified that Peterson’s backpack would have been 

searched during the booking process, written policies supported their 

testimony, and the policies were sufficiently detailed regarding the 

situation at hand. For instance, Sergeant Michael Allen of the King 

County Jail testified that the arresting agency takes custody of backpacks 

because the jail does not accept backpacks from arrestees awaiting 

booking. Consistent with this testimony, section 5.05.001 of King 

County Jail’s General Policy Manual states that intake officers at the 

county jail shall “[s]creen all property upon receipt from the outside 

agencies” and “return oversized items,” like backpacks to the 

transporting officer for return “to their department’s safe keeping area.” 

Detective Clayton Minshull of the King County Sheriff’s Office testified 

that, in such situations, the arresting officer conducts an inventory search 

to determine whether an item contains perishables, contraband, or 

valuables and places the backpack into evidence for safekeeping. 

Minshull’s testimony is supported by section 8.05.000 of the General 

Orders Manual for the King County Sheriff’s Office, which provides 

that, “[i]tems not accepted by the jail should be inspected by the deputy 

prior to booking.”
UNITED STATES V. PETERSON 9

the information required by section 10.31.030 is unlawful. 

Id.; see also State v. Caldera, 929 P.2d 482, 483–84 (Wash. 

Ct. App. 1997) (holding inventory searches unlawful when 

conducted prior to providing arrestees the opportunity to 

post bail as required by section 10.31.030).

Here, no arresting officer advised Peterson of the amount 

of bail for his misdemeanor warrants, which was set at 

$135,000. Peterson presented sufficient evidence of his 

ability to post a bail bond in that amount. Accordingly, had 

the officers arrested Peterson only on the misdemeanor 

warrants, and had they complied with section 10.31.030, 

Peterson would have been able to post bail, thereby avoiding 

the booking and inventory search process altogether.

Peterson’s ability to post bail on the misdemeanor 

warrants, however, has no bearing on whether his backpack 

would have been subject to an inventory search had he been 

booked on charges of obstructing law enforcement officers 

or resisting arrest because bail had not yet been set on those 

charges at the time Peterson was booked. The district court 

credited the arresting officer’s testimony that he 

“absolutely” would have booked Peterson on obstruction of 

law enforcement officers and resisting arrest charges had he 

not searched the backpack and discovered the handgun. 

During the arrest, Peterson twice broke away from officers 

and tried to escape on foot. Although Peterson was not 

charged with these crimes at booking, the district court 

credited officer testimony that it was standard practice to 

book arrestees only on felony charges when both felony and 

misdemeanor charges are available. Because the officers 

would have booked Peterson on obstruction or resisting 

arrest charges absent discovery of the gun, and because bail 

had not yet been set on those charges, Peterson would have 

been taken into custody upon booking. The evidence 
10 UNITED STATES V. PETERSON

demonstrates that it is standard procedure to inventory a 

defendant’s possessions at the time of booking if the King 

County jail will not accept the item and the arrestee will be 

taken into custody. The district court did not err in denying 

Peterson’s motion to suppress because the handgun 

inevitably would have been discovered.

B. Crime of Violence Sentencing Enhancement

Peterson was found guilty of being a felon in possession 

of a firearm, in violation of 18 U.S.C. § 922(g)(1). Under 

the Sentencing Guidelines, the base offense level for that 

offense varies depending on whether the defendant has one 

or more prior felony convictions for a “crime of violence” or 

a controlled substance offense. U.S. Sentencing Comm’n, 

Guidelines Manual, § 2K2.1(a) (Nov. 2015). The district 

court determined that Peterson had two such convictions 

under Washington law: (1) first-degree robbery and 

(2) delivery of cocaine. On appeal, Peterson challenges only 

whether his first-degree robbery conviction constitutes a 

“crime of violence.”

We review de novo a district court’s interpretation of the 

Sentencing Guidelines. United States v. Robinson, 869 F.3d 

933, 936 (9th Cir. 2017). To determine whether a prior 

felony conviction qualifies as a “crime of violence” under 

section 4B1.1(a), we use the “categorical approach,” under 

which “‘we look only to the statute of conviction,’ and 

‘compare the elements of the statutory definition of the 

crime of conviction with a federal definition of the crime to 

determine whether conduct proscribed by the statute is 

broader than the generic federal definition.’” United States 

v. Simmons, 782 F.3d 510, 513 (9th Cir. 2015) (quoting 

United States v. Lee, 704 F.3d 785, 788 (9th Cir. 2012)). 

Stated differently, the sentencing enhancement is prohibited 

if the scope of conduct covered by Washington first-degree 
UNITED STATES V. PETERSON 11

robbery is broader than the federal definition, even if the 

conduct that led to the defendant’s prior conviction was, in 

fact, violent. See Taylor v. United States, 495 U.S. 575, 600 

(1990).

At the time of Peterson’s sentencing, the Sentencing 

Guidelines defined the term “crime of violence” as follows:

The term “crime of violence” means any 

offense under federal or state law, punishable 

by imprisonment for a term exceeding one 

year, that—

(1) has as an element the use, attempted use, 

or threatened use of physical force against the 

person of another, or

(2) is murder, voluntary manslaughter, 

kidnapping, aggravated assault, a forcible sex 

offense, robbery, arson, extortion, or the use 

or unlawful possession of a firearm described 

in 26 U.S.C. § 5845(a) or explosive material 

as defined in 18 U.S.C. § 841(c).

U.S.S.G. § 4B1.2(a). The first clause of this definition 

commonly is referred to as the “elements clause,” and the 

second as the “enumerated offenses” clause. Although an 

offense qualifies as a “crime of violence” if it is covered by 

either clause, we focus on the enumerated offenses clause 

because the government contends only that Washington’s 

first-degree robbery constitutes a “crime of violence” under 

section 4B1.2(a)(2).2 In particular, the government argues 

 2 Peterson argues in his opening brief that neither section

4B1.2(a)(1) nor section 4B1.2(a)(2) applies to his first-degree robbery 
12 UNITED STATES V. PETERSON

that Washington first-degree robbery is a categorical match 

for the enumerated offenses of robbery and extortion.

“Robbery” is an enumerated offense that constitutes a 

crime of violence. But the Sentencing Guidelines refer only 

to “generic” robbery, which has been defined as “aggravated 

larceny, containing at least the elements of misappropriation 

of property under circumstances involving immediate 

danger to the person.” United States v. Becerril-Lopez, 

541 F.3d 881, 891 (9th Cir. 2008) (quoting United States v. 

Santiesteban-Hernandez, 469 F.3d 376, 380 (5th Cir. 

2006)). “Generic robbery requires danger to the person, not 

merely danger to property.” United States v. Edling, 

895 F.3d 1153, 1157 (9th Cir. 2018).

Peterson was convicted of robbery under Revised Code 

of Washington section 9A.56.190, which states:

A person commits robbery when he or she 

unlawfully takes personal property from the 

person of another or in his or her presence 

against his or her will by the use or threatened 

use of immediate force, violence, or fear of 

 

conviction. Because the government has not responded to Peterson’s 

section 4B1.2(a)(1) argument, it has waived reliance on the elements 

clause. See, e.g., United States v. Castillo-Marin, 684 F.3d 914, 919 (9th 

Cir. 2012) (noting that the government waives an argument when it does 

not make that argument at the time it filed its answering brief). 

Notwithstanding the government’s waiver, we have serious doubts that 

Washington first-degree robbery is a categorical match under the 

elements clause because Washington’s robbery offense includes force 

directed at property, which is not covered in the elements clause. See 

United States v. Edling, 895 F.3d 1153, 1157 (9th Cir. 2018).
UNITED STATES V. PETERSON 13

injury to that person or his or her property or 

the person or property of anyone.

Id. (emphasis added). Because Washington robbery 

encompasses threats to property and generic robbery 

excludes threats that are limited to property, the minimum 

conduct necessary to constitute Washington robbery does 

not fall categorically within generic robbery. See Edling, 

895 F.3d at 1157 (“[B]y allowing a conviction to rest on fear 

of injury to property alone, [the State’s] robbery statute is 

not a categorical match for generic robbery.”); United States 

v. Bercier, 192 F. Supp. 3d 1142, 1151 (E.D. Wash. 2016) 

(finding that because Washington second-degree robbery 

criminalizes physical force against property it is overbroad 

and not a categorical match for generic robbery).

The enumerated offenses clause also lists “extortion” 

among the offenses that constitute a crime of violence. In 

2016, before Peterson was sentenced, the Sentencing 

Commission (“Commission”) added for the first time a 

specific definition of “extortion” to section 4B1.2’s 

commentary, which provides: “‘Extortion’ is obtaining 

something of value from another by the wrongful use of 

(A) force, (B) fear of physical injury, or (C) threat of 

physical injury.” U.S.S.G. § 4B1.2 cmt. n.1; U.S.S.G. Supp. 

to App. C, Amend. 798 at 131 (2016). “[T]he Guidelines’ 

new definition of extortion narrows the offense by requiring 

that the wrongful use of force, fear, or threats be directed 

against the person of another, not property.” Edling, 

895 F.3d at 1157; see United States v. Bankston, — F.3d — ,

2018 WL 4016853, at *3 (9th Cir. Aug. 23, 2018) (holding 

that California robbery is “no longer a categorical match” 

under the new definition). Washington’s robbery statute 

therefore is not a categorical match because it allows for a 

conviction to rest on fear of injury to property alone.
14 UNITED STATES V. PETERSON

In sum, Washington first-degree robbery is not a 

categorical match under the enumerated offenses clause of 

section 4B1.2(a)(2). We therefore find that the district court 

erred in treating Peterson’s first-degree robbery conviction 

as a crime of violence.

C. Reckless Endangerment During Flight 

Sentencing Enhancement

The district court did not abuse its discretion in applying 

a two-level enhancement for reckless endangerment during 

flight under section 3C1.2 when calculating Peterson’s 

guidelines range. See United States v. Reyes-Oseguera, 

106 F.3d 1481, 1483 (9th Cir. 1997) (“We review the district 

court’s application of the Sentencing Guidelines to the facts 

for an abuse of discretion.”). This enhancement may be 

applied if the defendant “recklessly created a substantial risk 

of death or serious bodily injury to another person in the 

course of fleeing from a law enforcement officer . . . .” 

U.S.S.G. § 3C1.2. “During flight” is construed broadly, and 

includes conduct “in the course of fleeing,” id., in 

“preparation for flight,” and “in the course of resisting 

arrest.” U.S.S.G. § 3C1.2 cmt. n.3.

The district court found that Peterson’s actions during 

transport to the jail were “very dangerous and created a 

substantial risk of harm” to the officers. Specifically, 

Peterson, who was in double restraints, began violently 

kicking the windows in the rear compartment of the patrol 

car. Peterson failed to heed commands to stop kicking and 

was pepper sprayed. This subdued him only temporarily, 

however, and he soon resumed violently kicking the rear 

windows. Fearing that Peterson would kick out the rear 

window and attempt to escape, thereby potentially causing a 

collision on the interstate, the officer moved across multiple 

lanes of traffic to pull off the interstate and reapply 
UNITED STATES V. PETERSON 15

Peterson’s restraints. We find that the district court did not 

abuse its discretion in applying the sentencing enhancement 

because Peterson’s actions reasonably can be construed as 

being “in preparation of flight,” and because these actions 

reasonably could be viewed as presenting a substantial risk 

of harm to the officers and others on the interstate.

III. Conclusion

For the foregoing reasons, we affirm the district court’s 

denial of Peterson’s motion to suppress, reverse the district 

court’s finding that Washington first-degree robbery 

constitutes a crime of violence under sections 2K2.1(a)(2) 

and 4B1.2, and affirm the district court’s application of a 

two-level enhancement for reckless endangerment during 

flight under section 3C1.2. Accordingly, we vacate 

Peterson’s sentence and remand for resentencing.

AFFIRMED in part; REVERSED in part, and 

REMANDED.