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GLENN B. McCORMICK

Acting United States Attorney

District of Arizona

RAQUEL ARELLANO

Assistant U.S. Attorney

AZ State Bar No. 011796

CHRISTINE A. MELTON

Assistant U.S. Attorney

AZ State Bar No. 021649

United States Courthouse

405 W. Congress Street, Suite 4800

Tucson, Arizona 85701

Telephone: 520-620-7300

Email: raquel.arellano@usdoj.gov Email: christine.melton@usdoj.gov

Attorneys for Plaintiff

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

United States of America,

 Plaintiff, 

 vs. 

Robert Francis Krebs, 

 Defendant.

CR 18-00263-TUC-JGZ (JR)

GOVERNMENT’S RESPONSE TO 

DEFENDANT’S OBJECTION TO THE 

PRESENTENCE REPORT

Now comes the United States of America, by and through its undersigned attorneys, 

and hereby submits its response to the Defendant’s Objection to the Presentence Report. 

(Doc. 198.) The draft Presentence Investigation Report (PSR) was prepared on February 

5, 2021 (Doc. 178).

Defendant objects to the denial of a reduction for Acceptance of Responsibility and 

to certain enhancements applied under the Specific Offense Characteristics of the PSR. 

The government hereby responds to the objections raised as follows:

I. Denial of Acceptance of Responsibility was Proper.

Defendant contends that he is entitled to a reduction in his offense level under 

U.S.S.G. § 3E1.1 which allows for a reduction in sentence if “defendant clearly 
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demonstrates acceptance of responsibility for his offense...” “The plain language of 

U.S.S.G. § 3E1.1 places the burden on [a defendant] to show he is deserving of the 

reduction . . . [and a defendant] must ‘manifest a genuine acceptance for his actions.’” 

United States v. Cortes, 299 F.3d 1030, 1038 (9th Cir. 2002) (citing United States v. 

McKinney, 15 F.3d 849, 852 (9th Cir. 1994)). If contrition is sincere, then a defendant is 

entitled to a reduction. Id.

Defendant relies on United States v. McKinney, 15 F.3d 849 (9th Cir. 1994), in 

support of his argument that he is entitled to this reduction even though a trial was held. 

The defendant in McKinney presented the “unusual case” where a reduction in offense level 

was proper even though the defendant had pled not guilty. Id. at 852. McKinney is 

distinguishable from the facts in the instant case. In McKinney, the defendant accepted 

responsibility from the beginning in that he assisted the police in finding a gun used in the 

crime, gave a full and honest statement as to his participation, expressed contrition for his 

acts, and even attempted to plead guilty several times immediately prior to and during 

his trial. Id. at 852 (Emphasis added). The Ninth Circuit Court found that based on his 

cooperation and remorse, McKinney had accepted full responsibility for his actions, even 

though he exercised his right to a jury trial on the charges. It should be noted that the court

expressed that McKinney was “one of the unusual cases in which a defendant is entitled to 

an acceptance of responsibility reduction despite having pleaded not guilty.” Id. The court 

focused on the defendant’s personal genuine contrition, rather than his exercise of his 

constitutional rights, which included his confession, assistance to authorities, and attempts 

to plead guilty. Id.

In Gibson v. Dia, 69 F.3d 291 (9th Cir. 1995), the Ninth Circuit Court affirmed a 

denial of acceptance of responsibility although the defendant admitted his guilt post-trial. 

In rejecting the defendant’s argument, the court distinguished the McKinney case relied 

upon by the defendant:

Dia reads our decision in that case far too broadly. The defendant in McKinney

presented the “unusual case” where a reduction in offense level was proper even 
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though the defendant had pled not guilty. Id. at 852. There, defendant accepted 

responsibility from the beginning-assisting the police in finding a gun used in the 

crime, giving a full and honest statement as to his participation, and attempting to 

plead guilty several times immediately prior to and during his trial. Based on his 

overwhelming cooperation and remorse, we found that he had accepted full 

responsibility for his actions, even though he exercised his right to a jury trial on the 

charges. We emphasized, however, the rarity of such an occurrence. 

Id. at 293.

The court noted that the guidelines commentary regarding acceptance of responsibility 

were more broad when McKinney was decided:

Not only is McKinney factually distinguishable from Dia's case, but there has also

been a change in the sentencing guideline commentary since the time of the 

guidelines reviewed in McKinney. While we decided McKinney in 1994, we 

reviewed the 1991 guidelines. Id. at 852. In support of our decision, we relied 

upon the broad comment stating “[a] defendant may be given consideration under 

this section without regard to whether his conviction is based upon a guilty plea or 

a finding of guilty by the court or jury or the practical certainty of conviction at 

trial.” Id. However, in 1992, the commission deleted this comment. The 

contemporaneous comment to § 3E1.1 supports our limited application of the 

section in situations where defendants demand a trial, and reads as follows:

[t]his adjustment is not intended to apply to a defendant who puts the 

government to its burden of proof at trial by denying the essential factual 

elements of guilty, is convicted, and only then admits guilt and expresses remorse. Conviction by trial, however, does not automatically preclude a 

defendant from consideration for such a reduction. In rare situations a 

defendant may clearly demonstrate an acceptance of responsibility for his 

criminal conduct even though he exercises his constitutional right to a trial. 

This may occur, for example, where a defendant goes to trial to assert and 

preserve issues that do not relate to factual guilt (e.g. to make a constitutional 

challenge to a statute....) In each such instance, however, a determination that 

a defendant has accepted responsibility will be based primarily upon pre-trial 

statements and conduct. U.S.S.G. Section 3E1.1, comment 2.

The court in Dia added:

As we explained in United States v. Vance, 62 F.3d 1152, 1160 (9th Cir. 1995),

the guidelines for acceptance of responsibility “came about as close as they could, 

without penalizing the exercise of constitutional rights, to codifying the 

percentage” of sentence reduction for pretrial pleas of guilty, in order to reduce 

sentencing disparity. Unlike the defendant in McKinney, Dia made no attempt to 

plead guilty until long after he had been proved guilty, and there was no evidence 

that Dia accepted responsibility before responsibility was forced on him by trial 

and conviction. We find no error in the district court's refusal to reduce Dia's 

offense level on the basis of “accepted responsibility.”
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Id. 

In the instant case –unlike the defendant in McKinney who accepted responsibility, 

showed genuine contrition, and attempted to plead guilty before and during his trial—the 

defendant has not accepted full responsibility for his actions and, in fact, has not provided 

a statement showing contrition or accepting responsibility to the PSR writer concerning his 

acts in the offense. Even if the defendant waived an interview with the U.S. Probation 

Officer due to difficulty in hearing, the defendant nonetheless could have provided a 

written statement to the probation officer and to the Court expressing remorse and 

truthfully admitting the acts comprising the offense of conviction. Absent his initial postarrest admissions to law enforcement, the defendant has not met his burden of showing he 

is entitled to a reduction. Defendant has done nothing more to demonstrate to the Court 

why a reduction for acceptance of responsibility should be granted, other than relying on 

his post-arrest admissions in which he told arresting officers that he wanted to get caught 

and return to prison life. These statements are not indicative of remorse or contrition for 

his criminal acts.

McKinney is factually distinguishable from the instant case and the defendant in that 

case did more to merit a reduction than the defendant has done. Moreover, as the court in 

Dia noted, a different and more broad sentencing guideline commentary concerning 

acceptance of responsibility existed at the time of the McKinney decision. In McKinney, 

the court relied upon the then-existing broad sentencing guideline comment stating “[a] 

defendant may be given consideration under this section without regard to whether his 

conviction is based upon a guilty plea or a finding of guilty by the court or jury or the 

practical certainty of conviction at trial.” Id. (Emphasis added.) Now, the 

contemporaneous comment to Section 3E1.1 supports a limited application of the section 

in situations where defendants demand a trial, and reads as follows:

This adjustment is not intended to apply to a defendant who puts the government to 

its burden of proof at trial by denying the essential factual elements of guilt, is 

convicted, and only then admits guilt and expresses remorse. Conviction by trial, 

however, does not automatically preclude a defendant from consideration for such 
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a reduction. In rare situations a defendant may clearly demonstrate an acceptance 

of responsibility for his criminal conduct even though he exercises his constitutional 

right to a trial. This may occur, for example, where a defendant goes to trial to assert 

and preserve issues that do not relate to factual guilt (e.g., to make a constitutional 

challenge to a statute or a challenge to the applicability of a statute to his conduct). 

In each such instance, however, a determination that a defendant has accepted 

responsibility will be based primarily upon pre-trial statements and conduct. 

U.S.S.G. Section 3E1.1, comment (n. 2).

Notwithstanding that the defendant made admissions post-arrest, he has made no 

attempt at showing contribution and accepting responsibility even after responsibility was 

forced on him by trial and conviction. There is no indication that the defendant went to 

trial to assert and preserve issues that do not relate to factual guilt. The PSR writer properly 

denied any reduction in offense level for acceptance of responsibility. This Court should 

deny the defendant’s objection to the PSR and not reduce the defendant’s offense level on 

the basis of “acceptance of responsibility” when the defendant has not shown any such 

acceptance of responsibility or remorse.

II. Specific Offense Characteristics Enhancements.

In Paragraphs 22 and 27 of the PSR, Part A, The Offense, Specific Offense 

Characteristics and Chapter Four Enhancement, the PSR writer assessed enhancements for 

the BB weapon that was brandished and for application of the Career Offender Provision 

under U.S.S.G. § 4B1.1(b)(2). Defendant argues that the enhancements should not apply.

a. Government Concurs that a Three-Level Enhancement for 

Brandishing a BB Gun is Applicable.

Defendant objects to the five-level enhancement applied at Paragraph 22 of the PSR, 

for brandishing a firearm during the commission of this offense. Defendant contends that 

a firearm is defined as “(i) any weapon (including a starter gun) which will or is designed 

to or may readily be converted to expel a projectile by the action of an explosive . . . A 

weapon commonly known as a “BB” or pellet gun, that uses air or carbon dioxide pressure 

to expel a projectile is a dangerous weapon but not a firearm.” U.S.S.G. § 1B1.1, comment 

(n.1(H)).
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Defendant concedes that a three-level enhancement should apply in this instance, 

since a BB was used. As such, the government respectfully submits that the uncertainty of 

whether a guideline calculation applies should fall in the defendant’s favor. Consequently, 

the government concedes that a three-level enhancement should apply.

b. Career Offender Enhancement was Appropriately Applied.

Defendant objects to the Chapter Four Career Offender enhancement as applied in 

Paragraph 27 of the PSR asserting that the defendant’s 1982 Seminole County Circuit 

Court, Sanford, Florida Robbery conviction does not meet the definition of a crime of 

violence pursuant to U.S.S.G. § 4B1.2. In Paragraph 27, the PSR writer applied the Career 

Offender provision under Chapter Four of the U.S.S.G., thereby enhancing the total offense 

level to 34 as follows:

Chapter Four Enhancement: The defendant was at least 18 years old at the time

of the instant offense of conviction; the instant offense of conviction is a felony 

that is either a crime of violence or a controlled substance offense; and the 

defendant has at least two prior felony convictions of either a crime of violence or 

a controlled substance offense; therefore, the defendant is a career offender. The 

offense level for a career offender is 34 because the statutory maximum term of 

imprisonment is 25 years or more. U.S.S.G. § 4B1.1(b)(2).

Under the provisions of U.S.S.G. § 4B1.2, a Career Offender enhancement applies if three

prongs are met:

1) The defendant is over eighteen years old;

2) The offense of conviction is a crime of violence, and

3) The defendant has at least two prior felony convictions which meet the 

 definition of “crime of violence” under U.S.S.G. §4B1.1(a).

Under U.S.S.G. § 4B1.2, certain terms used under U.S.S.G. §4B1.1, including

“crime of violence,” are defined as follows:

§ 4B1.2. Definitions of Terms Used in Section 4B1.1

(a) The term "crime of violence" means any offense under federal or state law, 

punishable by imprisonment for a term exceeding one year, that—
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(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).

Under the law of this Circuit, a sentencing court may not look to the underlying 

facts or circumstance of the prior offense in determining that the prior offense is an act of 

violence within the meaning of the career offender provisions of the Guidelines. See

United States v. Lonczak, 993 F.2d 180, 181-83 (9th Cir. 1993); United States v. Sahakian, 

965 F.2d 740, 742 (9th Cir. 1992); United States v. Sherbondy, 865 F.2d 996, 1005-1009 

(9th Cir. 1988). Under § 4B1.2(1), courts must look to the offense of conviction. The 

conviction must “set forth (i.e. expressly charged)” conduct which “by its nature presents 

a serious potential risk of physical injury.” U.S.S.G. § 4B1.2, comment (n. 2).

Paragraph 36 of the PSR notes that the prior Kidnapping charge was later changed 

to False Imprisonment. Although it is not noted in the PSR yet, a revised PSR will reflect 

that the PSR writer also discovered (after the draft PSR was filed) that the Robbery

conviction was later changed to “Robbery with a Firearm”. The Florida state statute for 

Robbery with a Firearm is 812.13(a) and 812.13(2)(a) and provides:

(2)(a) If in the course of committing the robbery the offender carried a firearm or

other deadly weapon, then the robbery is a felony of the first degree, punishable by 

imprisonment for a term of years not exceeding life imprisonment or as provided in 

s. 775.082, s. 775.083, or s. 775.084 . . .

In his argument against the enhancement, the defendant asserts that Robbery, under 

the generic definition, is the taking of personal property by means of force or threat of 

injury against the person of another. The 1981 Florida Robbery statute defines Robbery as 

“the taking of money or other property which may be the subject of larceny from the person 

or custody of another by force, violence, assault, or putting in fear.” Arthur v. State, 391 

So. 2d 338, 338 (Fla. Dist. Ct. App. 1980). Even assuming the conviction was merely for 
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Robbery, caselaw supports the contention that a Florida Robbery conviction qualifies as a

predicate offense for application of the Chapter Four career offender provision. Caselaw 

analyzes the enhancement under the Armed Career Criminal Act (ACCA) which also has 

the identical elements clause as the Career Offender provision. Under the ACCA, a 

defendant convicted of violating 18 U.S.C. § 922(g) is subject to a mandatory minimum 

sentence of 15 years if he has three prior convictions for a “violent felony” or “serious drug 

offense.” 18 U.S.C. § 924(e)(1). A “violent felony” requires a conviction that “has as an 

element the use, attempted use, or threatened use of physical force against the person of 

another.” As noted above, a “crime of violence” under the Career Offender provision 

requires the identical: “has as an element the use, attempted use, or threatened use of 

physical force against the person of another.”

In Stokeling v. United States, 139 S.Ct. 544, 555 (2019), the Supreme Court held 

that Robbery under Florida law –defined as the taking of property with the use of force to 

overcome the resistance by the victim—qualifies as an ACCA violent felony. Id. at 549, 

555. The Court found that Florida robbery qualifies as a “violent felony” under the 

elements clause of the ACCA. It found that the terms “physical force,” or “force capable 

of causing physical pain or injury,” encompasses the amount of force necessary to 

overcome a victim’s resistance and therefore Robbery under Florida law corresponds to 

that level of force thereby qualifying as a “violent felony”. 

The Court noted that the Florida Supreme Court has made clear that the robbery 

statute requires “resistance by the victim that is overcome by the physical force of the 

offender.” Id. at 554-555 (citing Robinson v. State, 692 So.2nd 883, 886 (1997)). In 

Robinson, the Eleventh Circuit Court held that the defendant’s prior Florida state court 

conviction of armed robbery categorically qualified as a prior conviction for “violent 

felony” under the “elements” clause of the Armed Career Criminal Act (ACCA). Under 

the ACCA, the following “elements” clause is required: “has an element the use, attempted 

use, or threatened use of physical force against the person of another.” The court in 

Robinson held that the defendant’s Florida armed robbery conviction categorically 
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qualified as a “violent felony” under the ACCA’s elements clause. The court reiterated 

that based on its prior holdings in United States v. Dowd, 451 F.3d 1244, 1255 (11th Cir. 

2006) and United States v. Lockley, 632 F.3d 1238, 1245 (11th Cir. 2011), a Florida robbery 

conviction even without a firearm, qualifies as a “crime of violence” under the elements 

clause in the career offender guideline in U.S.S.G. § 4B1.2(a), which has the same elements 

as the ACCA.

In a post-Stokeling decision, the Ninth Circuit Court in Ward v. United States, 936 

F.3d 914, 918 (9th Cir. 2019), held that a Minnesota simple robbery conviction qualifies 

as a violent felony under the ACCA’s force clause. It held:

This case, therefore, presents a straightforward application of Stokeling. Minnesota

simple robbery is defined as the use or threatened use of force “to overcome the 

person’s resistance or powers of resistance...” Minn. Stat. Ann. §609.24 (1986). 

The Minnesota Supreme Court has unequivocally stated that “[a]lthough a simple 

purse snatching usually constitutes theft, pushing or grabbing a person during that 

theft may constitute simple robbery.” State v. Slaughter, 691 N.W.2d 70, 76 (Minn. 

2005)(citing State v. Nash, 339 N.W.2d 554, 557 (Minn. 1983)). Thus, Minnesota’s

statute is similar to the Florida robbery at issue in Stokeling, which is also defined 

as the taking of property with the use of force to overcome the victim’s resistance. 

See 139 S.Ct. at 549, 555; see also Taylor v. United States, 926 F.3d 939, 941-42 

(8th Cir. 2019) (reaffirming that Minnesota simple robbery is an ACCA violent 

felony and noting that “Minnesota’s simple robbery statute is virtually 

indistinguishable from the Florida statute at issue in Stokeling” because ‘[i]n both 

States, a mere ‘snatching’ of property, without more, is not the level of force

required.’). 

It should be noted that in a pre-Stokeling decision, United States v. Geozos, 870 F.3d 

890, 902 (9th Cir. 2017), the Ninth Circuit Court held that applying the familiar categorical 

approach, neither robbery, armed robbery, or use of a firearm in the commission of a felony 

under Florida law is categorically a “violent felony.” In Ward, supra, the court overruled 

its decision in Geozos, in light of the Supreme Court’s decision in Stokeling.

Defendant’s reliance on the caselaw cited in his motion is misapplied and pre-date 

the opinions in Stokeling and Ward. The PSR writer’s application of the defendant’s prior 

Florida conviction as a predicate “crime of violence” is appropriate. This Court should 
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deny the defendant’s objection and consider the base offense level at 34.

III. Conclusion.

For the foregoing reasons, the United States concurs with the PSR writer’s denial of 

Acceptance of Responsibility and its enhancement under the Chapter Four Career Offender 

provision. The United States concurs with the defendant’s objection that a three-level 

enhancement for use of a BB gun applies. The final Total Offense Level should remain at 

34. The United States respectfully requests the Court overrule the defendant’s objection 

to the PSR’s denial of acceptance of responsibility and application of the Chapter Four 

Career Offender provision. 

Respectfully submitted this 3rd day of June, 2021.

GLENN B. McCORMICK

Acting United States Attorney

District of Arizona

s/Raquel Arellano

RAQUEL ARELLANO

Assistant U.S. Attorney

s/Christine Melton

CHRISTINE A. MELTON

Assistant U.S. Attorney

Copy of the foregoing served this 3rd day of June, 2021 to:

Erin M. Carrillo, Esq., Attorney for the defendant

Monica Lopez

U.S. Probation Officer