- Court: 9th Circuit Court of Appeals Archives
- Area(s) of Law: Sentencing
- Date Filed: 11-24-2015
- Case #: 14-10475
- Judge(s)/Court Below: Circuit Judge Tallman for the Court; Circuit Judge Kozinski and District Judge Rosenthal; Dissent by Kozinski
- Full Text Opinion
Ibrahim Fahab Bare, a non-Indian who lives on tribal land, was convicted in 2012 of two counts of being a felon in possession of a firearm. According to witnesses, Bare had fired a shot above an Indian’s head after refusing to provide him cigarettes. When Bare did not appear for his first court date, police arrested him a second time and searched his home, finding multiple weapons and drugs. Bare argued that most of the weapons found were in relation to his pawn shop business, although he knew that possession of a firearm violated his previous convictions. The district court sentenced Bare to a 4-level sentence enhancement, and ordered a computer search condition, overriding Bare’s complaints that there were records of his pawn business on his computer software. Under United States Sentencing Guidelines § 2K2.1(b)(6)(B), a 4-level sentencing enhancement is appropriate when a defendant used or possessed any firearm or ammunition in connection with a prior felony offense. Bare’s actions qualified under Arizona’s Revised Statutes as felony disorderly conduct. However, Bare, being a non-Indian who fired a weapon over an Indian’s head, would also be subject to punishment in Indian Country. On appeal, the Ninth Circuit held that under the Assimilative Crimes Act, it does not matter whether the requisite felony took place on Indian lands or in the state’s jurisdiction in order to apply the enhancement. The panel also held that because the district court established through finding of fact a nexus between Bare’s computer usage and the need for the sentence to have deterrence, public protection, or rehabilitation, the district court did not abuse its discretion when ordering a supervised release to search Bare’s computer. AFFIRMED.