United States v. Smith ( 2005 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 03-30533
Plaintiff-Appellee, D.C. No.
v. CR-02-60101-1-
TIMOTHY DEAN SMITH,  ALA
Defendant-Appellant. ORDER AND
AMENDED
 OPINION
Appeal from the United States District Court
for the District of Oregon
Ann L. Aiken, District Judge, Presiding
Argued and Submitted
September 13, 2004—Portland, Oregon
Filed December 3, 2004
Amended April 27, 2005
Before: J. Clifford Wallace, Ronald M. Gould and
Carlos T. Bea, Circuit Judges.
Opinion by Judge Wallace
4671
UNITED STATES v. SMITH 4675
COUNSEL
Craig E. Weinerman, Assistant Federal Public Defender,
Eugene, Oregon, for the defendant-appellant.
Frank R. Papagni, Jr., Assistant United States Attorney,
Eugene, Oregon, for the plaintiff-appellee.
ORDER
The court’s opinion filed December 3, 2004, slip op.
16459, and appearing at 390 F.3d 661 (9th Cir. 2004), is
hereby amended as follows:
1. Line seven on slip op. 16467, after citation to Bonat, 106
F.3d at 1477, insert: “The Supreme Court has recently
approved the use of a plea colloquy transcript. See Shep-
ard v. United States, No. 03-9168, 544 U.S. ___, 2005
U.S. LEXIS 2205, at *7-8 (Mar. 7, 2005).”
2. Line five of slip op. 16471, after “of this mandate,”
insert: “The Supreme Court has suggested that a court’s
reliance on a defendant’s own admissions, as evidenced
by a plea transcript, does not implicate the concerns
underlying Apprendi. See Shepard, 2005 U.S. LEXIS
2205, at *23-26.”
With these amendments, the panel has voted to deny the
petition for panel rehearing. Judge Gould and Judge Bea have
voted to deny the petition for rehearing en banc, and Judge
Wallace so recommended. The full court has been advised of
the petition for rehearing en banc, and no judge has requested
4676 UNITED STATES v. SMITH
a vote on whether to rehear the matter en banc. Fed. R. App.
P. 35.
The petition for rehearing and the petition for rehearing en
banc are DENIED. No subsequent petitions for rehearing or
rehearing en banc may be filed.
OPINION
WALLACE, Senior Circuit Judge:
Smith appeals from his sentence because of the enhance-
ment imposed by the district court pursuant to the Armed
Career Criminal Act (ACCA), 18 U.S.C. § 924(e). He con-
tends the district court improperly relied on statements made
at a no contest plea hearing in concluding that an earlier state
burglary conviction qualifies as a “violent felony” for pur-
poses of the ACCA. In addition, Smith asserts that the district
court engaged in fact-finding which violated the constitutional
principle established in Apprendi v. New Jersey, 530 U.S. 466
(2000). The district court had jurisdiction pursuant to 18
U.S.C. § 3231. We have jurisdiction over this timely appeal
pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742, and we
affirm.
I.
A federal indictment charged Smith with being a felon in
possession of a firearm, in violation of 18 U.S.C. § 922(g)(1),
and alleged that he qualified for a sentence enhancement as an
Armed Career Criminal due to at least three prior burglary
convictions in California. Smith pleaded guilty and admitted
he had been convicted of the alleged prior offenses, but he
reserved the right to challenge the constitutional, statutory, or
factual validity of his prior convictions at sentencing.
UNITED STATES v. SMITH 4677
The government submitted documentation regarding
Smith’s prior convictions for two burglaries in Placer County
in 1984, two burglaries in Orange County in 1985, and a bur-
glary in Sacramento County in 1993. The district court con-
cluded that Smith’s convictions in Sacramento County and
Placer County qualified as “violent felonies” under 18 U.S.C.
§ 924(e)(2)(B)(ii). As provided by section 924(e)(1), the court
imposed the mandatory minimum sentence of fifteen years.
Smith does not dispute the applicability of section 924(e)(2)
to the two Placer County convictions. Therefore, the main
issue addressed in this appeal is whether the Sacramento con-
viction qualifies as a violent felony.
For the Sacramento conviction, the government submitted
the transcript of the plea hearing and the abstract of judgment.
The judgment indicates that Smith was convicted of burglary
in the first degree, in violation of California Penal Code
§ 459. The state court transcript establishes that at the change
of plea hearing, the prosecutor stated the factual basis for the
burglary charge:
With regard to 92F07246, on the date set forth in the
Complaint, in the County of Sacramento, the defen-
dant willfully and unlawfully entered an inhabited
dwelling occupied by Jennifer Smith located at 3624
Ronk, R-O-N-K, Way. Once inside he did take per-
sonal property belonging to her.
After the magistrate asked Smith’s counsel if she “wish[ed] to
comment on [the] factual basis,” his counsel replied:
No. The only comment is that he entered his former
occupant [sic]. He entered his former home which he
considered to be his current home. He had only been
away for two days. The codes were changed. He
went in and retrieved some of his personal items, all
of which were still at his home, all personal items
and toiletry of four years duration in that home. He
4678 UNITED STATES v. SMITH
did, however, take some things he should not have
that did not belong to him.
The magistrate then questioned Smith to ascertain whether he
understood the consequences of his plea. After finding there
was a factual basis for the plea, the magistrate found Smith
guilty of first degree burglary.
We review de novo whether a conviction is a predicate fel-
ony for purposes of the ACCA. United States v. Bonat, 106
F.3d 1472, 1474 (9th Cir. 1997). We also review de novo
whether the district court violated the constitutional rule artic-
ulated in Apprendi. United States v. Pina-Jaime, 332 F.3d
609, 611 (9th Cir. 2003).
II.
[1] The ACCA requires a fifteen year minimum sentence
for any person who violates the felon-in-possession prohibi-
tion of 18 U.S.C. § 922(g) and has three prior convictions for
a “violent felony.” 18 U.S.C. § 924(e)(1). The term “violent
felony” is defined to include burglary offenses which are pun-
ishable by more than one-year imprisonment. Id.
§ 924(e)(2)(B).
[2] In Taylor v. United States, 495 U.S. 575, 599 (1990),
the Supreme Court established a generic definition of burglary
for purposes of section 924(e)(2)(B): “[1] unlawful or unprivi-
leged entry into, or remaining in, [2] a building or structure,
[3] with intent to commit a crime.” A court generally must
apply a categorical approach at sentencing to determine
whether a defendant was convicted of conduct which included
these three elements of generic burglary. That is, it may “look
only to the fact of conviction and the statutory definition of
the prior offense.” Id. at 602.
[3] In this case, we first apply the Taylor categorical analy-
sis to Smith’s no contest plea. See Bonat, 106 F.3d at 1476
 UNITED STATES v. SMITH 4679
(“It is well accepted that the Taylor analysis applies not only
to convictions resulting from a jury finding of guilt, it also
applies when the defendant has pled guilty”). California Penal
Code § 459 provides in part that “[e]very person who enters
any . . . building . . . with intent to commit grand or petit lar-
ceny or any felony is guilty of burglary.” This definition
expressly requires that a defendant have entered with the
intent to commit a crime. See United States v. Alvarez, 972
F.2d 1000, 1005 (9th Cir. 1992) (per curiam) (stating that a
conviction pursuant to section 459 requires that “the defen-
dant had, at the time of entry, the intent to commit a crime”).
Therefore, the fact of Smith’s conviction pursuant to section
459 establishes the intent element of generic burglary.
[4] Section 459 does not, however, require that the entry be
unlawful, nor does it require that the entry be into a building.
See Taylor, 495 U.S. at 591 (stating that “California defines
‘burglary’ so broadly as to include shoplifting and theft of
goods from a ‘locked’ but unoccupied automobile” and citing
California Penal Code § 459); United States v. Franklin, 235
F.3d 1165, 1169 (9th Cir. 2000) (“We have previously and
unequivocally held that California Penal Code section 459 is
far too sweeping to satisfy the Taylor definition of generic
burglary”). Thus, applying a categorical analysis, these ele-
ments of generic burglary are not satisfied.
[5] Yet, “in a narrow range of cases” where a factfinder
“was actually required to find all the elements of generic bur-
glary,” a court may apply a modified categorical approach and
look “beyond the mere fact of conviction.” Taylor, 495 U.S.
at 602. Although the court may not inquire into the underlying
facts of the conviction, Bonat, 106 F.3d at 1475, it may exam-
ine “documentation or judicially noticeable facts that clearly
establish that the conviction is a predicate conviction for
enhancement purposes.” United States v. Rivera-Sanchez, 247
F.3d 905, 908 (9th Cir. 2001) (en banc) (quoting United
States v. Casarez-Bravo, 181 F.3d 1074, 1077 (9th Cir.
1999)). The record must “unequivocally” establish that the
4680 UNITED STATES v. SMITH
defendant was convicted of the generic crime. United States
v. Corona-Sanchez, 291 F.3d 1201, 1211 (9th Cir. 2002) (en
banc).
[6] The record here consists of the transcript of the plea
hearing and the abstract of judgment. In Bonat, we held that
“examining the plea transcript was not an impermissible fac-
tual inquiry” by the district court. 106 F.3d at 1474. We rea-
soned that considering an oral admission that was later
transcribed entailed no more of a factual inquiry than examin-
ing a signed plea statement, which was permitted in United
States v. Sweeten, 933 F.2d 765, 769 (9th Cir. 1991) (per
curiam). Bonat, 106 F.3d at 1477. The Supreme Court has
recently approved the use of a plea colloquy transcript. See
Shepard v. United States, No. 03-9168, 544 U.S. ___, 2005
U.S. LEXIS 2205, at *7-8 (Mar. 7, 2005). We have also
allowed a court to consider a judgment of conviction. E.g.,
United States v. Hernandez-Valdovinos, 352 F.3d 1243, 1248
(9th Cir. 2003). Therefore, although courts are “limited to
consulting a narrow and carefully specified set of documents”
when applying the modified categorical approach, United
States v. Pallares-Galan, 359 F.3d 1088, 1099 (9th Cir.
2004), the documents in the record here are clearly appropri-
ate for review. See Franklin, 235 F.3d at 1170 n.5 (listing
documents which a sentencing court may consider).
[7] In determining that this record clearly established the
elements of generic burglary, the district court reasoned that
the factual basis for the charge, as set forth by the prosecutor
at the change of plea hearing, expressly stated that Smith “un-
lawfully entered an inhabited dwelling.” Furthermore, when
specifically asked to comment, defense counsel did not object
to this statement; rather, she explained that Smith had entered
his “former home” where the “codes were changed.” We con-
clude that these statements unequivocally establish that Smith
was convicted of unlawfully entering a building.
[8] Smith argues that the lack of a charging document in
the record prevents consideration of the change of plea tran-
UNITED STATES v. SMITH 4681
script. Although the various combinations of documents iden-
tified as permissible in Corona-Sanchez, 291 F.3d at 1211, all
included a charging document, we do not read our opinion as
establishing a per se requirement. We have “interpreted Tay-
lor’s edict to include examination of ‘documentation or judi-
cially noticeable facts that clearly establish that the conviction
is a predicate conviction for enhancement purposes[,] such as
the indictment, the judgment of conviction, jury instructions,
a signed guilty plea, or the transcript from the plea proceed-
ings.’ ” Rivera-Sanchez, 247 F.3d at 908 (alteration in origi-
nal) (emphasis added) (quoting Casarez-Bravo, 181 F.3d at
1077). Indeed, we have held that a court errs if it fails to con-
sider such documentation. See Franklin, 235 F.3d at 1170.
Moreover, although the district court in Bonat considered
the Information and the Sentence of Imprisonment from the
defendant’s prior burglary convictions in Arizona, it “primar-
ily relied on [the defendant]’s statements from the . . . change
of plea proceedings.” Bonat, 106 F.3d at 1476. Without the
change of plea transcript, the record was insufficient because
neither of the other documents established the requisite “in-
tent” element. Id. Here, the district court reviewed both the
abstract of judgment and the plea transcript, and it properly
relied primarily on the latter to establish the elements of (1)
unlawful entry (2) into a building. See also United States v.
Hernandez-Hernandez, 387 F.3d 799, 805 (9th Cir. 2004)
(“[The district court] did no more than we previously have
allowed by looking at the plea colloquy transcript . . . ; it
relied on readily available facts to which both sides expressly
stipulated that clearly fit within the statutory definition of a
crime of violence”). A charging instrument in this particular
case is simply unnecessary.
[9] Alternatively, Smith argues that the district court erred
in relying on the stated factual basis because he entered a “no
contest” plea rather than a guilty plea. However, in United
States v. Williams, 47 F.3d 993, 995 (9th Cir. 1995), the
defendant pleaded nolo contendere — or “no contest” — to
4682 UNITED STATES v. SMITH
charges that he “ ‘did willfully and unlawfully enter [a] resi-
dence,’ ” and we held that “[w]hen a defendant pleads guilty
(or as here, pleads nolo contendere) to facts stated in the con-
junctive, each factual allegation is taken as true.” See also
United States v. Stephens, 237 F.3d 1031, 1033-34 (9th Cir.
2001) (two burglary convictions entered pursuant to the
defendant’s nolo contendere pleas qualified as “violent felo-
nies” pursuant to the ACCA, even though the state’s defini-
tion of “burglary” did not require entry into a building,
because the “indictments clearly refer[red] to burglaries of
‘buildings’ within the scope of the definition of ‘burglary’
provided by Taylor”); CAL. PENAL CODE § 1016 (“The legal
effect of [a nolo contendere] plea, to a crime punishable as a
felony, shall be the same as that of a plea of guilty for all pur-
poses”).
[10] Although in Williams the defendant pleaded nolo con-
tendere to a charging instrument and the record here does not
include such an instrument, the district court may rely on the
undisputed factual basis as stated at the plea hearing to sup-
port the ACCA enhancement. In United States v. Palmer, 68
F.3d 52, 53 (2d Cir. 1995), the Second Circuit considered
whether a conviction entered pursuant to a nolo contendere
plea constituted a “crime of violence” within the meaning of
U.S.S.G. § 4B1.2(1). The Information merely stated, “without
elaboration,” that the defendant had committed “the crime of
intimidation based on bigotry and bias . . . in violation of
General Statute No. 53a-181b.” Id. at 56. However, the court
held that “the plea proceeding includes a lucid description of
the conduct for which Palmer was convicted, that conduct
manifestly constitutes a ‘crime of violence’ . . . , and Palmer’s
on-the-record agreement to the description of his conduct
proffered by the prosecuting attorney results in the functional
equivalent of a plea agreement with respect to that conduct.”
Id. at 59; see also United States v. Etimani, 328 F.3d 493,
503-04 (9th Cir. 2003) (holding that the record did not estab-
lish that a prior conviction was for a “sexual act” for purposes
of the 18 U.S.C. § 2241(c) sentence enhancement, but
UNITED STATES v. SMITH 4683
remarking that “a transcript of Etimani’s plea of no-contest
might have clarified the exact nature of his prior conviction,
but none was provided”).
[11] The reasoning in Palmer is persuasive. As applied to
this case, the factual basis stated by the prosecutor clearly
establishes that Smith “unlawfully entered an inhabited dwell-
ing,” and Smith conceded this fact through his counsel, who
did not object when asked to comment. On the contrary,
Smith’s counsel confirmed this fact when she stated that
Smith had entered his “former home” even though the “codes
were changed.” Smith is bound by his counsel’s statement.
See Hernandez-Hernandez, 387 F.3d at 806 (“There is no
authority to support the proposition that when Hernandez-
Hernandez’s attorney stipulated to the factual basis supporting
the plea agreement the defendant was not bound by the facts
contained in that stipulation. In fact, we have repeatedly held
that criminal defendants are bound by the admissions of fact
made by their counsel in their presence and with their authori-
ty.”).
[12] Thus, we hold that this record unequivocally estab-
lishes that Smith’s conviction by plea encompassed the three
elements of the Taylor definition of generic burglary.
III.
[13] Smith argues the district court’s examination of his
prior convictions violated the rule established in Apprendi:
“Other than the fact of a prior conviction, any fact that
increases the penalty for a crime beyond the prescribed statu-
tory maximum must be submitted to a jury, and proved
beyond a reasonable doubt.” 530 U.S. at 490.
[14] However, we have repeatedly rejected Apprendi chal-
lenges to the ACCA. See United States v. Keesee, 358 F.3d
1217, 1220 (9th Cir. 2004) (citing Summers and summarily
rejecting claim that Apprendi entitled Keesee to a jury trial to
4684 UNITED STATES v. SMITH
determine whether prior convictions qualified as predicate
offenses under the ACCA); United States v. Summers, 268
F.3d 683, 689 (9th Cir. 2001) (rejecting facial challenge to
ACCA based on Apprendi); see also United States v. Tighe,
266 F.3d 1187, 1191 (9th Cir. 2001) (rejecting facial chal-
lenge to ACCA based on Apprendi).
[15] Smith, however, contends that the district court deter-
mined more than the “fact of a prior conviction” in his case
because it employed the modified categorical approach. But,
Taylor prohibits “inquiry into the underlying facts of the con-
viction,” even when applying the modified categorical
approach, Bonat, 106 F.3d at 1475, and the district court did
not run afoul of this mandate. The Supreme Court has sug-
gested that a court’s reliance on a defendant’s own admis-
sions, as evidenced by a plea transcript, does not implicate the
concerns underlying Apprendi. See Shepard, 2005 U.S.
LEXIS 2205, at *23-26. We therefore reject this argument.
[16] Finally, the Supreme Court’s recent decision in
Blakely v. Washington, 124 S. Ct. 2531 (2004), does not
undermine the Apprendi exception for sentence enhancements
triggered by “the fact of a prior conviction.” As we recently
explained in United States v. Quintana-Quintana, 383 F.3d
1052, 1053 (9th Cir. 2004), “Blakely does nothing to upset
this well-settled rule.”
IV.
For the reasons stated above, we conclude that the district
court did not err in determining that Smith’s conviction for
the burglary in Sacramento qualifies as a “violent felony” for
purposes of the ACCA enhancement. We also conclude that
the district court did not find facts in violation of the Apprendi
rule. We therefore affirm the sentence imposed by the district
court.
AFFIRMED.