United States v. Vicente Corona , 493 F. App'x 645 ( 2012 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 12a0856n.06
No. 10-5253
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
Aug 07, 2012
UNITED STATES OF AMERICA, )
) LEONARD GREEN, Clerk
Plaintiff-Appellee, )
) On Appeal from the United States
v. ) District Court for the Eastern District
) of Tennessee
VINCENTE CORONA )
)
Defendant-Appellant. )
Before: BOGGS and GIBBONS, Circuit Judges; RUSSELL, Senior District Judge.*
RUSSELL, Senior District Judge: Defendant-Appellant Vincente Corona (“Corona”) appeals
his conviction for various drug offenses and conspiracy to commit money laundering. The five-
count criminal indictment charged Corona and others with conspiracy to transport and sell cocaine
and marijuana within the Eastern District of Tennessee, conspiracy to commit money laundering,
and three separate instances of aiding and abetting others in the distribution of five or more
kilograms of cocaine. His conviction on all five counts followed after a nine-day jury trial. He was
sentenced to a term of life imprisonment after the district court found he had two previous felony
drug convictions and enhanced his sentence under 21 U.S.C. §§ 851 and 841(b)(1)(A).
*
The Honorable Thomas B. Russell, United States Senior District Judge for the Western
District of Kentucky, sitting by designation.
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No. 10-5253, United States v. Vincente Corona
Corona now appeals his conviction and sentence, citing errors in each. He argues that
reversal of his conviction is justified because the Government introduced impermissible hearsay
evidence from an unindicted coconspirator. Corona argues his mandatory life sentence is
procedurally and substantively unreasonable because he does not have the requisite felony drug
convictions to justify his enhanced sentence. He further says the district court was not bound by the
jury’s determination on drug quantity and should have found he was responsible for a smaller
amount. Finding no error below, we affirm both the conviction and the life sentence.
I.
A. Pretrial factual background
During trial, the Government alleged Corona was involved in a plot to transport cocaine and
marijuana from California to areas of east Tennessee and north Georgia for sale and distribution.
Coconspirators Richard Robinson, Dennis Richardson, Jermaine Hughes, and Kimberly Robinson
testified for the Government in exchange for sentencing consideration. Collectively, these witnesses
indicated Corona was the conspiracy’s major source of cocaine.
Richard Robinson and Richardson said Corona began supplying them with cocaine and
marijuana in 2004. The two received weekly shipments of cocaine, provided by Corona, from
California to Tennessee weighing between five and twenty-seven kilograms. Richard Robinson’s
wife, Kimberly Robinson, accompanied him to several meetings with Corona where drug
transactions occurred. Witnesses testified that, in all, Corona supplied more than 200 kilograms of
cocaine to the drug organization in east Tennessee. Distributors in the conspiracy also purchased
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marijuana from both Corona and an unindicted coconspirator named “Worm.” The marijuana too
was shipped from California.
In 2005, Richard Robinson was arrested for his drug-related activities and was held in the
Knox County Detention Center. Richardson and Hughes continued to engage in the conspiracy
during Richard Robinson’s incarceration. At some point, Hughes spoke with Worm in an attempt
to acquire more narcotics. Hughes testified that Worm responded that he did not “mess with the
white side of the fence, he only messed with the green side of the fence.” Hughes interpreted the
statement to mean Worm did not deal cocaine.
Kimberly Robinson began cooperating with law enforcement following her husband’s arrest.
In November of 2005, she started recording her conversations with Richardson and Corona.
Richardson eventually brokered a meeting on December 15, 2005, between Kimberly Robinson and
Corona in Los Angeles. There, the two discussed the continued sale of cocaine and its eventual
distribution in Tennessee. Kimberly Robinson and Corona agreed to meet again in January of 2006
because he did not possess cocaine to sell her at that time. On January 4, 2006, Kimberly Robinson
and Richardson spoke about her anticipated purchase of cocaine from Corona. In the taped
conversation, Richardson advised her that Corona would sell cocaine for $14,500 a kilogram.
Kimberly Robinson agreed to meet Corona in California three days later to make the purchase.
Richardson confirmed at trial that he had spoken with Corona about the price and relayed the
information to Kimberly Robinson.
Kimberly Robinson, Richardson, and Corona met in California on January 7, 2006. The three
spoke about Corona’s future sales of cocaine to Kimberly Robinson and Richardson. Corona
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outlined future transactions, with cash payments by Kimberly Robinson on Fridays and delivery of
cocaine on the following Mondays. He also envisioned the increase of sales to eight kilograms a
week. With Kimberly Robinson’s assistance, this conversation was secretly recorded by law
enforcement officials.
Immediately following this gathering, law enforcement arrested Corona and Richardson.
While incarcerated before trial, Corona encouraged both Richardson and Hughes to wrongly
characterize their drug activities as only involving the sale of marijuana and not cocaine because the
penalties for the former involve less jail time. Both men declined and eventually offered testimony
to the contrary against Corona.
B. Statements by coconspirator
At trial, Corona attacked the Government’s strategy to paint him as the conspiracy’s source
of cocaine. He instead insinuated that the Government’s witnesses had framed him to protect Worm,
the conspiracy’s true connection for cocaine. To undermine this argument, the Government elicited
testimony from Hughes at trial to demonstrate Worm trafficked solely in marijuana. The pertinent
testimony is as follows:
Hughes: [Richard Robinson] asked me to get in touch with his home boy
Worm and let him know everything was all right. That he would
holler at him, when everything was over with.
Government: Did you, in fact, contact Worm?
Hughes: Yes, sir.
Government: And when you spoke with Worm at Richard Robinson’s request, did
you talk with him about the possibility of buying more drugs?
Hughes: I talked to him about - I know I remember one conversation I had I
told him it was dry in terms of something to smoke. I wanted to
smoke, inquiring about if I could buy personally some marijuana for
my own use personally.
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Government: What did Worm say, when you asked him that?
Hughes: Well, first he said he didn’t mess with the white side of the fence, he
only messed with the green side of the fence. That is what I said,
yeah, I only want something to smoke.
Government: When he said he didn’t mess with the white side of the fence, what
did you understand him to mean?
Hughes: That he didn’t deal cocaine.
R. 485, TT 2/14/08, Hughes p. 32-33. Corona’s attorney objected, arguing that Worm’s statements
were hearsay that did not meet any relevant exception. The district court overruled the objection,
finding that Worm was a part of the conspiracy and the remark was in furtherance of the conspiracy
pursuant to Federal Rule of Evidence 801(d)(2)(E).
C. Sentencing issues
The Government offered notice before trial under 21 U.S.C. § 851 that it would seek to
enhance the penalties Corona faced as provided by 21 U.S.C. § 841(b)(1)(A). After the guilty
verdict, the Government offered three qualifying felony drug convictions as the basis for
enhancement: (1) a 1998 California conviction for possession of methamphetamine (“1998
Conviction”), (2) a 1989 federal conviction for possession with intent to distribute cocaine and (3)
a 1987 California conviction for the sale or transportation of cocaine (“1987 Conviction”). While
he conceded the federal conviction was a qualifying felony for enhancement purposes, Corona
lodged objections to the Government’s use of the two California convictions to enhance his sentence.
The district court held a sentencing hearing to review the convictions. There, Corona argued the
Government had not sustained its burden of proving beyond a reasonable doubt that felony drug
convictions that had become final resulted from these proceedings in California’s Superior Court.
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The 1998 Conviction unfolded as follows. In September of 1997, Corona was charged with
possession of methamphetamine in violation of Health and Safety Code § 11377(a). On January 8,
1998, he was convicted in California Superior Court. The court suspended the proceedings and
ordered him to serve three years probation. Corona chose not to appeal the order of probation and
his probation was terminated three years later pursuant to California Penal Code § 1203.3.
In the sentencing hearing, the Government relied on a variety of exhibits from the California
court system to show the 1998 Conviction’s finality. It introduced copies of the felony complaint
and charging information, the transcript of the Superior Court proceedings where Corona pleaded
guilty and probation was ordered, minute entries1 from Superior Court indicating he pleaded guilty
and was placed on probation, and exhibits showing he did not appeal the order of probation. In
conjunction with the record, the district court examined the California Health and Safety Code and
concluded possession of methamphetamine was a felony drug offense.
The underlying record presents the following narrative for the 1987 Conviction. In
September of 1987, Corona was charged with the sale or transport of a controlled substance in
violation of Health and Safety Code § 11352. Corona pleaded guilty to the charge in Municipal
Court in California, which then certified the plea to Superior Court. On November 6, 1987, Superior
Court accepted the guilty plea entered in Municipal Court for violating § 11352. Superior Court
suspended the proceedings and ordered Corona to serve three years probation. Corona did not appeal
1
A minute entry is “prepared by a court official at the time the guilty plea is taken (or shortly
afterward), and that official is charged by law with recording the proceedings accurately.” United
States v. Snellenberger, 548 F.3d 699, 702 (9th Cir. 2008) (describing minute entries from the
California state courts).
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the court’s order of probation. Again, Corona’s probation was terminated several years later
pursuant to California Penal Code § 1203.3.
At the district court hearing, the Government introduced a number of certified records as
evidence of the 1987 Conviction. These included copies of the criminal complaint, multiple minute
entries from the Municipal and Superior Courts documenting Corona’s plea and probationary
sentence, a transcript from the change of plea hearing in Municipal Court, and minute entries
showing Corona violated his probation. This evidentiary foundation convinced the district court
beyond a reasonable doubt that the 1987 Conviction constituted a final felony drug conviction.
Corona asserted several reasons for the district court to reject enhancement of his sentence.
He stated that the Superior Court’s decisions to suspend the proceedings for each conviction, order
probation, and terminate probation under California Penal Code § 1203.4 meant his convictions were
not final. He claimed that the exhibits introduced were unreliable and did not prove beyond a
reasonable doubt that the 1998 and 1987 Convictions were final felony convictions. For the 1998
Conviction, he stated that because offenses under § 11377(a) may be prosecuted as either a felony
or a misdemeanor under California law, the 1998 Conviction was actually a misdemeanor.
Unpersuaded, the district court determined both convictions were felony drug offenses under federal
law and enhanced Corona’s sentence to mandatory life imprisonment.
D. Drug quantity determination
For Count One, the jury found the conspiracy to distribute cocaine involved more than five
kilograms of the drug. It reached a similar conclusion with the charges of aiding and abetting others
in the distribution of cocaine in Counts Three, Four, and Five. In a post-trial memorandum, Corona
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asserted the district court was not bound by the jury-determined five kilogram quantities, based on
this court’s decision of United States v. Cox, 565 F.3d 1013 (6th Cir. 2009). He argued that two
kilograms was the most he was responsible for based on the objective proof at trial. The district
court denied this request and adopted the jury’s finding on quantity.
II.
A. Coconspirator’s statements
Corona protests the introduction of statements by Hughes that Worm’s drug activities were
limited to the sale of marijuana. Corona stresses that these comments were inadmissible hearsay and
undercut his defense at trial that he was framed by his coconspirators. The Government says the
statement is not hearsay under Federal Rule of Evidence 801(d)(2)(E). In the alternative, the
Government contends that if Hughes’s statements were inadmissible, the introduction was harmless
error since the evidence in favor of Corona’s guilt was overwhelming.
Out- of-court statements between coconspirators are admissible if they meet the foundational
prerequisites of Federal Rule of Evidence 801(d)(2)(E). Under the rule, a district court must
conclude “(1) the conspiracy existed; (2) the defendant was a member of the conspiracy; and (3) the
co-conspirator made the proffered statements in furtherance of the conspiracy.” United States v.
Warman, 578 F.3d 320, 335 (6th Cir. 2009) (citing United States v. Wilson, 168 F.3d 916, 920 (6th
Cir. 1999)). “If it is more likely than not that the declarant and the defendant were members of a
conspiracy when the hearsay statement was made, and that the statement was made in furtherance
of the conspiracy, the hearsay is admissible.” United States v. Hitow, 889 F.2d 1573, 1581 (6th Cir.
1989). The district court’s determination on whether the foundational criteria under Rule 801 were
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No. 10-5253, United States v. Vincente Corona
met “is a question of fact for the district court that [this court] review[s] for clear error.” Warman,
578 F.3d at 335 (citing United States v. Maliszewski, 161 F.3d 992, 1007 (6th Cir. 1998)).
“However, [this court] review[s] the [district] court’s ultimate legal conclusion regarding
admissibility de novo.” Id.
Corona concedes that sufficient proof existed for the district court to find a conspiracy
existed and that Worm was a member of the conspiracy. He contends that Hughes’s conversation
with Worm was not in furtherance of the conspiracy as it promoted his own agenda to secure
marijuana for his personal use.
“A statement is ‘in furtherance of’ a conspiracy if it is intended to promote the objectives of
the conspiracy.” United States v. Clark, 18 F.3d 1337, 1342 (6th Cir. 1994). “Statements that have
been found to be ‘in furtherance of’ conspiracies include statements identifying other conspirators
and their roles in the conspiracy, statements to inform other conspirators of the activities or status
of the conspiracy, and statements as to the source or purchaser of controlled substances.” Hitow, 889
F.2d at 1581 (internal citations omitted). “[A] statement may be in furtherance of a conspiracy ‘even
if not exclusively, or even primarily, made to further the conspiracy.’” Warman, 578 F.3d at 338
(quoting United States v. Tocco, 200 F.3d 401, 419 (6th Cir. 2000)). Idle chatter and casual
conversations do not meet this threshold and are not properly admitted under Rule 801(d)(2)(E). Id.
(citing United States v. Darwich, 337 F.3d 645, 657 (6th Cir. 2003)).
Given their context, Worm’s comments were made in furtherance of the conspiracy. See id.
(“Whether a statement was in furtherance of a conspiracy turns on the context in which it was made
and the intent of the declarant in making it.”). According to Hughes, the conversation between
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Worm and himself arose out of Richard Robinson’s request that the two men talk about the
possibility of continued drug transactions in spite of Robinson’s incarceration. Prior to the phone
call, Hughes had never dealt directly with Worm even though both were affiliated with Robinson’s
organization. Worm’s statement that he only sold marijuana may be characterized as bringing
Hughes up to speed on a segment of the conspiracy, specifically Worm’s responsibilities, with which
he had been previously unfamiliar. Put another way, Worm was defining his role in the conspiracy
to Hughes as well as identifying himself as the source of the marijuana. Moreover, Worm’s remarks
to Hughes that he did not sell cocaine indirectly identified the source of cocaine as someone else.
Statements like these are in furtherance of a conspiracy and thus admissible under Rule 801(d)(2)(E).
See United States v. Franklin, 415 F.3d 537, 552 (6th Cir. 2005) (statements identifying the
participants and their roles in a conspiracy are in furtherance of that conspiracy); United States v.
Monus, 128 F.3d 376, 392-93 (6th Cir. 1997) (statement that identifies participant and explains their
role is admissible under Rule 801(d)(2)(E)); United States v. Bryan, 35 F.3d 567, 1994 WL468034
at *7 (6th Cir. 1994) (table) (statements identifying the drug’s source are in furtherance of the
conspiracy). The district court’s adoption of this rationale upon admitting Hughes’s testimony
means it did not err with this evidentiary decision.
Even assuming that Hughes’s testimony did not meet the foundational prerequisites for Rule
801(d)(2)(E), any error does not justify reversal as the evidence at trial against Corona was abundant
and persuasive.2 Evidentiary rulings at trial, including those concerning the admissibility of a
2
Corona contends Worm’s statement to Hughes violated the Constitution’s Confrontation
Clause, and thus reversal of his conviction is necessary. As Rule 801(d)(2)(E) covers Worm’s
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coconspirator’s statements, are subject to harmless-error analysis. Warman, 578 F.3d at 340-41.
Reversal of a conviction is unwarranted if it is possible to say with fair assurance “‘that the judgment
was not substantially swayed by the error.’” Id. at 340 (quoting Kotteakos v. United States, 328 U.S.
750, 765 (1946)). “‘The erroneous admission of a statement by an unindicted co-conspirator
constitutes harmless error when sufficient other evidence demonstrates a defendant’s active
involvement in the conspiracy.’” United States v. Young, 553 F.3d 1035, 1047-48 (6th Cir. 2009)
(quoting United States v. Rogers, 118 F.3d 466, 477 (6th Cir. 1997)).
Corona argues against harmless-error analysis because the evidence against him was not
overwhelming. He is mistaken. Richard Robinson, Kimberly Robinson, and Richardson all
identified Corona as a source of cocaine for the conspiracy. Richard Robinson and Richardson gave
detailed accounts of how they purchased large quantities of cocaine from Corona, which was later
packaged in front of Corona for shipment. Richardson and Hughes relayed that while in custody,
Corona admitted he sold cocaine to the members of the conspiracy and solicited their help to conceal
these past sales. Recorded conversations by Kimberly Robinson and her corroborating testimony
established Corona’s drug distribution activities and his past interactions with other coconspirators
such as Richard Robinson and Richardson. Weighing the evidence presented at trial with the single
statement to Hughes, the statement was not hearsay and there is no issue with the Confrontation
Clause. United States v. Lopez-Medina, 461 F.3d 724, 746 n. 5 (6th Cir. 2006). Even if the
statement were hearsay, it did not violate Corona’s rights under the Sixth Amendment because his
statement was non-testimonial. See Crawford v. Washington, 541 U.S. 36, 50-51 (2004)
(Confrontation Clause targets “formal statement[s] to government officers,” not “casual remark[s]
to an acquaintance”); United States v. McCullough, 150 F. App’x 507, 509 (6th Cir. 2005)
(statements made to companion are not testimonial in nature).
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No. 10-5253, United States v. Vincente Corona
statement Corona targets, it is impossible to say the judgment against him was “substantially
swayed” by the objected-to testimony. See Warman, 578 F.3d at 340-41 (where district court
erroneously admitted two hearsay statements, testimony of other coconspirators was sufficient to find
harmless error); Young, 553 F.3d at 1047-48 (other coconspirators’ corroboration of a defendant’s
role in conspiracy rendered moot a single portion of a witness’s testimony that arguably contained
inadmissible hearsay); see also United States v. Sherrills, 432 F. App’x 476, 485-86 (6th Cir. 2011)
(where a coconspirator’s statement was admitted without necessary details for foundational
prerequisites, testimony from coconspirators and taped conversations rendered error harmless)
For these reasons, Corona’s claims of inadmissible hearsay do not warrant reversing his
conviction.
B. Enhancement of sentence
Corona challenges the district court’s conclusions that the 1998 and 1987 Convictions were
final felony drug convictions for the purposes of an enhancement under 21 U.S.C. §§ 841 and 851.
He insists the district court possessed insufficient or unreliable evidence to adjudge either conviction
as final. Corona continues that the 1998 Conviction was in fact a misdemeanor under California law.
Accordingly, he asks this court to overturn his sentence of life imprisonment.
Sentencing decisions by a district court are reviewed for reasonableness under an abuse-of-
discretion standard. United States v. Wettstain, 618 F.3d 577, 591 (6th Cir. 2010) (citations omitted).
“‘Review for reasonableness has both procedural and substantive components.’” United States v.
Jeross, 521 F.3d 562, 569 (6th Cir. 2008) (quoting United States v. Carter, 510 F.3d 593, 600 (6th
Cir. 2007)). Procedural errors include improperly calculating the guideline range of a sentence. Gall
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No. 10-5253, United States v. Vincente Corona
v. United States, 552 U.S. 38, 51 (2007). If procedurally sound, this court then examines the
substantive reasonableness of a sentence under abuse of discretion. Id.
Criminal defendants who commit drug offenses involving five or more kilograms of cocaine
and in violation of section 841(a) shall be sentenced to a term of imprisonment not “less than 10
years or more than life.” 21 U.S.C. § 841(b)(1)(A), (ii). Section 841 allows for a sentence of
mandatory life imprisonment if a defendant violates § 841(b)(1)(A) and has “two or more prior
convictions for a felony drug offense [that] have become final.” 21 U.S.C. § 841(b)(1)(A). Where
a defendant denies in writing the existence of the previous convictions, the district court is required
to hold a hearing where the government must prove beyond a reasonable doubt any contested
allegation of the earlier convictions. 21 U.S.C. § 851(c)(1).
A ruling by the district court that a defendant has a prior conviction is a factual finding.
United States v. Chisom, 249 F. App’x 406, 410 (6th Cir. 2007) (citing United States v. Horton, 163
F. App’x 378, 380 (6th Cir. 2006)). “The standard of review for a district court’s factual findings
at sentencing is clear error.” United States v. Katzopoulos, 437 F.3d 569, 578 (6th Cir. 2006);
accord Chisom, 249 F. App’x at 410 (“This Court reviews a district court’s factual findings at
sentencing for clear error.” (citation omitted)). This court reviews de novo the legal conclusion that
a prior conviction is a qualifying offense under 21 U.S.C. § 841(b)(1)(A). See United States v.
McGrattan, 504 F.3d 608, 610 (6th Cir. 2007) (citing United States v. Armstead, 467 F.3d 943, 946
(6th Cir. 2006)); see also United States v. Williams, 616 F.3d 760, 766 (8th Cir. 2010); United States
v. Norbury, 492 F.3d 1012, 1014 (9th Cir. 2007). Whether the district court relied on the appropriate
type of evidence in reaching its conclusion on past convictions is a pure legal question and warrants
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No. 10-5253, United States v. Vincente Corona
de novo review as well. See United States v. Jimenez, 605 F.3d 415, 420 (6th Cir. 2010) abrogated
on other grounds by Tapia v. United States, 131 S. Ct. 2382 (2011).
Having conceded his guilt of the prior federal felony drug conviction in 1989, we need only
to hold that the district court was correct as to either the 1998 Conviction or the 1987 Conviction to
impose a mandatory life sentence on Corona. Upon review, however, we hold that the district court
correctly determined that both were final felony convictions for the purposes of enhancement.
1. 1998 Conviction
Between 1997 and 1998, Corona was arrested and charged with possession of
methamphetamine, in violation of California Health and Safety Code §§ 11377(a) and 11055(d)(2).
Corona says the district court incorrectly used the 1998 Conviction to enhance his conviction for a
number of reasons: (1) unreliable evidence was introduced to support the conviction’s existence, (2)
the suspension of the imposition of his sentence and his probation’s dismissal means no final
conviction occurred for enhancement purposes, and (3) even if there was a final drug conviction, it
was a misdemeanor and not a felony. Each is unpersuasive.
Corona admits he was the subject of the 1998 Conviction but contends the Government did
not establish beyond a reasonable doubt the California court entered a final judgment of conviction.
A district court’s decision that the evidence showed the fact of a prior conviction beyond a
reasonable doubt under § 851(c)(1) is reviewed de novo. United States v. Arreola-Castillo, 539 F.3d
700, 703 (7th Cir. 2008); United States v. Wright, 238 F.3d 418, 2000 WL 1846340, at *4 (4th Cir.
2000) (per curium) (table). All reasonable inferences are viewed in the light most favorable to the
government, United States v. Harris, 369 F.3d 1157, 1167 (10th Cir. 2004); United States v. Green,
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175 F.3d 822, 834 (10th Cir. 1999) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)), and
findings of fact are reviewed for clear error, United States v. Kellam, 568 F.3d 125, 143 (4th Cir.
2009).
The Government introduced the transcript from the California Superior Court where Corona
pleaded guilty, the judge suspended his sentence, and placed him on three years formal felony
probation. It further produced copies of the criminal complaint, a certified minute entry showing the
imposition of the sentence, and documents memorializing his placement on probation, along with
its revocation, termination, and dismissal. As these exhibits convincingly established Corona’s
conviction beyond a reasonable doubt, the district court was not mistaken in this regard. See
Williams, 616 F.3d at 766-67 (document containing multiple minute entries was adequate to prove
the existence of the prior conviction beyond a reasonable doubt for enhancement under § 841).
Next, Corona advocates for his sentencing’s reversal because the 1998 Conviction was not
a final drug conviction. He declares as much because the California Superior Court suspended the
criminal proceeding, ordered a term of probation, and later dismissed the case at the end of his
probation, under California Penal Code § 1203.4. Corona charges that the alternative sentencing
precludes a finding of finality. The Government responds that the sentence of probation and the
failure of Corona to appeal the sentence qualifies as a final conviction under federal law.
The dispositive issue is whether a final felony conviction follows from the suspension of
criminal proceedings, an order of probation, and the dismissal of probation. A prior felony drug
conviction must be final if it is to be used for enhancement purposes. 21 U.S.C. § 841(b)(1)(A).
Federal law governs whether a prior conviction is final within the meaning of § 841. Adams v.
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No. 10-5253, United States v. Vincente Corona
United States, 622 F.3d 608, 612 (6th Cir. 2010). “A conviction becomes final for the purpose of
[federal] sentencing when the time for taking a direct appeal from the judgment of conviction has
expired.” United States v. Miller, 434 F.3d 820, 823 (6th Cir. 2006) (citing United States v. Walker,
160 F.3d 1078, 1093 (6th Cir. 1998)). Other circuits have found finality for federal enhancement
purposes where sentencing courts have either deferred, suspended, or dismissed an earlier felony
conviction. United States v. Law, 528 F.3d 888, 910-11 (D.C. Cir. 2008) (where prior conviction
was set aside under Federal Youth Corrections Act, it was still properly considered as final
conviction under § 841); Norbury, 492 F.3d at 1014-15 (enhancement under § 841 was appropriate
even though previous conviction was dismissed); United States v. Mejias, 47 F.3d 401, 403-04 (11th
Cir. 1995) (defendant’s plea of nolo contendere where adjudication was withheld qualified as a prior
conviction for enhancement).
In United States v. Miller, this court reviewed the application of alternative sentencing and
questions of finality under § 841. 434 F.3d at 823-24. The district court enhanced a defendant’s
sentence on account of a prior conviction, even though the state court in Georgia had deferred an
adjudication of guilt during his earlier sentencing. Id. at 822. Under Georgia law, first offenders
could be sentenced to a two-year probationary period, at the end of which the original violation
would be discharged without an adjudication of guilt. Id. at 823 (citing Ga. Code Ann. § 42-8-
62(a)). While the defendant was not considered to have a criminal conviction under Georgia law,
this court found a conviction for the purposes of § 841 became final “at the point at which [it was]
no longer appealable.” Id. at 824. As Georgia law permitted an appeal of this sentence following
the order of probation, the defendant’s conviction could be used for enhancement under § 841. Id.
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The case at bar is indistinguishable from Miller. Corona was charged and pleaded guilty to
a felony drug offense. The Superior Court suspended the proceedings and ordered three years of
probation in lieu of incarceration. Where a California court enters an order granting probation, the
effect is a final judgment that a criminal defendant may then appeal. Cal. Penal Code § 1237(a).
Failure to file a notice of appeal with the Superior Court within sixty days results in the order’s
finality and voids the defendant’s chance to appeal. People v. Ramirez, 72 Cal. Rptr. 3d 340, 344
(Cal. Ct. App. 2008) (citing Cal. Rules of Court, Rule 8.308(a)). There is no record of Corona
having filed a notice of appeal following the order of probation. With Corona’s decision not to
appeal, the termination of his probation and the subsequent dismissal of this conviction do not affect
the determination of finality under federal law.3 See Adams, 622 F.3d at 612; Miller, 434 F.3d at
824.
Finally, Corona claims that the 1998 Conviction was not a felony at all, but actually a
misdemeanor under § 17(b) of the California Penal Code. He states that either upon being sentenced
to probation in 1998 or upon dismissal of the charges in 2001, the violation became a misdemeanor.
As enhancement under § 841 is only appropriate after final felony convictions, Corona says the
district court’s sentence is in error.
3
Corona draws a parallel between the resolution of the 1998 Conviction and the case of
United States v. Stallings, 301 F.3d 919 (8th Cir. 2002). He says Stallings stands for the proposition
that the entry of a probation order and suspension of the proceedings may not be characterized as a
judgment against a criminal defendant under California law. We do not believe the holding in
Stallings is dispositive on the issue at hand. We also note that the Eighth Circuit has more recently
sidestepped the precedent of Stallings and enhanced defendants’ sentences in circumstances akin to
Corona’s. See United States v. Ramon-Rodriguez, 492 F.3d 930, 938-40 (8th Cir. 2007); United
States v. Slicer, 361 F.3d 1085, 1087 n. 1 (8th Cir. 2004).
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No. 10-5253, United States v. Vincente Corona
California’s code sets out that “[a] felony is a crime which is punishable with death or by
imprisonment in the state prison. Every other crime or public offense is a misdemeanor except those
offenses that are classified as infractions.” Cal. Penal Code § 17(a) (1989). Possession of
methamphetamine violates the California Health and Safety Code §§ 11377(a) and 11055(d)(2). It
is punishable “by imprisonment in a county jail for a period of not more than one year or in the state
prison.” Cal. Health & Safety Code 11377(a) (1997). Such offenses under California law are
commonly referred to as “wobblers,” since the trial court’s decision on the sentence imposed is
dispositive as to whether the offense qualifies as a felony or a misdemeanor. See United States v.
Boumelhem, 339 F.3d 414, 426 (6th Cir. 2003) (citing California v. Powell, 212 Cal. Rptr. 454
(1985)).
Section 17(b) of the California Penal Code defines under what circumstances a wobbler
offense is a misdemeanor:
(b) When a crime is punishable, in the discretion of the court, by imprisonment in the
state prison or by fine or imprisonment in the county jail, it is a misdemeanor for all
purposes under the following circumstances:
(1) After a judgment imposing a punishment other than imprisonment in the
state prison.
...
(3) When the court grants probation to a defendant without imposition of
sentence and at the time of granting probation, or on application of the
defendant or probation officer thereafter, the court declares the offense to be
a misdemeanor.
Cal. Penal Code § 17(b)(1), (3). “The offense is regarded as a felony until a judgment is entered,
except where the court declares otherwise.” Boumelhem, 339 F.3d at 426 (citing People v. Soto, 212
Cal. Rptr. 696 (Cal. Ct. App. 1985)); accord People v. Banks, 348 P.2d 102,112 (Cal. 1959). An
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order sentencing a defendant to probation and suspending the proceedings afterward does not equate
to a misdemeanor judgment under § 17(b)(1). See United States v. Qualls, 108 F.3d 1019, 1022 (9th
Cir. 1997); United States v. Haggerty, 85 F.3d 403, 406-07 (8th Cir. 1996).
This court is not unfamiliar with the law surrounding wobblers. Twice, criminal defendants
have appealed their convictions arguing that a district court erred when it construed a criminal
offense as a felony under California’s penal code rather than a misdemeanor. See United States v.
Robinson, 390 F.3d 853, 879 (6th Cir. 2004); Boumelhem, 339 F.3d at 426. On both occasions, the
court disagreed.
In Boumelhem, the court reviewed whether an offense was a felony or misdemeanor under
California’s law on wobblers. There, a defendant pleaded nolo contendere to charges of grand theft
in the California’s Superior Court. Boumelhem, 339 F.3d at 423. The sentencing court suspended
the proceedings and entered an order for felony probation. Id. at 426. The classification of the
earlier offense became an issue when a federal district court concluded the defendant was a felon for
the purposes of 18 U.S.C. § 922(g). Id. at 425. On appeal, this court ruled that entry of a probation
order did not qualify as a judgment under § 17(b)(1) of the California Penal Code, and therefore
classification as a misdemeanor was unjustified. Id. at 426 (citing United States v. Robinson, 967
F.2d 287, 293 (9th Cir. 1992)). The court then found misdemeanor treatment under § 17(b)(3) was
also improper where the California court did not declare on the record the offense to be a
misdemeanor. Id. at 426-27. Boumelhem was reaffirmed a year later when the court again found
a felony conviction under § 17 of the California Penal Code where the defendant entered a nolo
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contendere plea, sentence was imposed, and probation was ordered. Robinson, 390 F.3d at 879-80
(reviewing whether a defendant had a prior felony conviction under § 922(g)).
Corona’s circumstances differ little from the facts reviewed in Boumelhem and Robinson.
Following his plea of guilty, the state court kept jurisdiction over the matter, entered an order of
probation, and suspended the proceedings. Under these circumstances, the California court did not
enter a misdemeanor judgment. See Robinson, 390 F.3d at 879-80; Boumelhem, 339 F.3d at 426-27.
Because the 1998 Conviction did not wobble between a felony and misdemeanor, the district court
correctly concluded the 1998 Conviction qualified as a felony conviction under California law.
In a last-ditch effort to avoid enhancement under §§ 841 and 851, between his sentencing
hearings on November 17, 2008 and March 30, 2009, Corona petitioned the Los Angeles Superior
Court to reduce the 1998 Conviction from a felony to a misdemeanor under § 17(b)(3) of the
California Penal Code. The Superior Court obliged and amended the felony count for the 1998
Conviction to a misdemeanor. He now argues that the Superior Court’s eleventh-hour rebranding
of the 1998 Conviction precluded the district court from treating it as a felony drug conviction during
his sentencing. Corona is incorrect. In Boumelhem, this court indicated that for favorable sentencing
treatment, any reclassification from felony to misdemeanor under § 17 of the California Penal Code
was required to take place “at the time [the defendant] took the actions that would form the basis of
his federal conviction.” Boumelhem, 339 F.3d at 427. Since the California Superior Court did not
alter the 1998 Conviction until well after the conspiratorial activities that are the foundation of his
conviction, the district court was justified in enhancing his sentence.
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2. 1987 Conviction
The district court found that in 1987, Corona was convicted of a felony under California law
for the sale or transportation of cocaine. Neither party contests that a conviction for the sale or
transportation of cocaine would permit enhancement of Corona’s sentence. See Cal. Health & Safety
Code § 11352(a) (1988) (punishable by a maximum term of imprisonment of three, four, or five
years). Rather, Corona challenges the enhancement of his sentence under §§ 841 and 851 because
the district court used unreliable forms of evidence, the Government did not establish a final
conviction beyond a reasonable doubt, and the California Superior Court disposed of charges in 1987
without issuing a final conviction. On review, we find Corona is incorrect on all counts.
Corona attacks the type of evidence the district court relied on, specifically exhibits from the
Municipal Court of California and the certified minute entries from the Superior Court. First, he
questions the introduction of exhibits from the Municipal Court of California, in particular the
transcript of his guilty plea on September 22, 1987, as evidence of the existence of the 1987
Conviction. Since a Municipal Court may only take a defendant’s plea of guilty and then certify it
for consideration by the Superior Court, Cal. Penal Code § 859a(b), Corona says the plea transcript
from the Municipal Court cannot prove the Superior Court accepted the plea and rendered judgment.
Without a copy of the transcript of the Superior Court plea colloquy, he insists the Government
cannot show a final conviction beyond a reasonable doubt. Second, Corona attests that the minute
entries from the Superior Court are inadequate to show a final judgment of conviction occurred since
they do not offer an adequate indicia of reliability. He seemingly advocates for a bright-line rule
requiring the Government to produce the transcript of the plea hearing as conclusive proof of a final
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criminal judgment and a general bar against admitting minute entries for enhancement under § 841
because of their inherent unreliability. Both of these arguments are unconvincing.
Corona initially runs afoul of the general proposition that when it comes to sentencing, “a
judge may appropriately conduct an inquiry broad in scope, largely unlimited either as to the kind
of information he may consider, or the source from which it may come.” United States v. Tucker,
404 U.S. 443, 446 (1972) (citations omitted). In considering what is admissible evidence for §
841(b)(1)(A) sentence enhancements, the district court “‘may consider relevant information without
regard to its admissibility under the rules of evidence applicable at trial, provided that the
information has sufficient indicia of reliability to support its probable accuracy.’” United States v.
Pratt, 553 F.3d 1165, 1170 (8th Cir. 2009) (quoting U.S.S.G. § 6A1.3(a)) (emphasis in original).
Courts routinely accept transcripts from sentencings and minute entries as evidence in a variety of
sentence-enhancement scenarios. See Williams, 616 F.3d at 766-67 (minute entries used for
enhancement under 21 U.S.C. § 841(b)(1)(A)); Snellenberger, 548 F.3d at 701-02 (district court may
rely on minute entries from California state courts to show past offense was a crime of violence for
the purposes of U.S.S.G. § 4B1.1(a)); see also Chisom, 249 F. App’x at 410-11 (minute entries used
to show defendant qualified as an Armed Career Criminal under 18 U.S.C. § 924(e) and U.S.S.G.
§ 4B1.4). The district court did not err in accepting the minute entries and Municipal Court records
into evidence.
Much as with the 1998 Conviction, Corona argues there was inadequate proof to show the
proceeding in the California Superior Court ended in a final felony drug conviction as required by
§ 841. He states the transcript from his guilty plea is of dubious value since a final conviction cannot
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arise out of the Municipal Court in California. He also says the minute entries are insufficient to
prove beyond a reasonable doubt a final judgment was entered in the Superior Court.
The Government introduced a certified copy of the felony criminal complaint, a certified
copy of the Municipal Court transcript of Corona’s guilty plea, a certified copy of the minute entry
for that guilty plea, and a certified copy of the “Certificate and Order of the Magistrate” entered by
the state magistrate judge confirming Corona’s guilty plea. Even if a Municipal Court in California
cannot enter the final judgment of conviction, these documents are evidence of Corona’s later
conviction and judgment in the Superior Court. The Government also produced the Superior Court’s
Report For an Intermediate Sentence or Other Sentence, and a minute entry documenting Corona’s
change of plea. Collectively, the documents offer definitive proof Corona pleaded guilty to a
violation of California’s Health and Safety Code, was sentenced on November 6, 1987, and the
imposition of the sentence was suspended. They are further corroborated by the post-conviction
exhibits revoking and then terminating Corona’s probation. Taken in the aggregate, the evidence
constituted an adequate foundation for the district court to enhance Corona’s sentence.
Corona claims that no final judgment was entered in the 1987 Conviction because the
Superior Court terminated his probation and dismissed the case under California Penal Code §
1203.3. The issue for this section is whether an order of probation and the suspension of proceedings
followed by no notice of appeal can constitute a prior conviction within the meaning of § 841?
Though Corona asserts this alternative sentencing does not meet the federal test for finality, the 1987
Conviction is final for § 841 purposes under the same logic as the 1998 Conviction. Corona was
charged and pleaded guilty to a felony drug offense. The Superior Court suspended the proceedings
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and ordered three years of probation rather than incarceration. California’s statutes provided Corona
an avenue for appeal, which he decided against. See Cal. Penal Code § 1237(a). Since a conviction
is final under federal law where the time for taking a direct appeal has expired, see Miller, 434 F.3d
at 823; United States v. Soto, 8 F. App’x 535, 541 (6th Cir. 2001), the termination of Corona’s
probation and the subsequent dismissal are irrelevant to the determination of finality under federal
law.
C. Drug quantity determination
Lastly, Corona states the district court erred when it concluded it was bound by the jury’s
finding of more than five kilograms as the drug quantity for the conspiracy count. He proposes that
the district court was permitted to ignore the specific quantity determinations by the jury and the
amount alleged in the indictment. This argument is directly refuted by this court’s prior rulings. See,
e.g., United States v. Manns, 277 F. App’x 551, 559 (6th Cir. 2008) (a defendant’s argument of
improper sentencing was “foreclosed” since the district court based its sentencing on the quantity
of drugs the jury decided upon); United States v. Ricketts, 317 F.3d 540, 545 (6th Cir. 2003) (“The
district court cannot ignore the jury’s findings as to drug quantity unless there is insufficient evidence
to support those findings.” (citing United States v. Flowal, 234 F.3d 932, 936 (6th Cir. 2000))). The
case Corona cites, United States v. Cox, 565 F.3d 1013 (6th Cir. 2009), was a bench trial and
therefore the determination of the minimum amount of cocaine attributable to the defendant was
made by the trial judge. Here, the district court correctly deferred to the jury’s drug quantity
determination.
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CONCLUSION
The district court did not err with its decisions to admit Hughes’s statements at trial or
sentence Corona to life imprisonment. For the aforementioned reasons, the district court’s rulings
are AFFIRMED.
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