United States v. Diaz ( 2016 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 10-50029
Plaintiff-Appellee,
D.C. No.
v. 8:07-cr-00202-
DOC-2
GILBERT OLIVA DIAZ, AKA
Chaparro, AKA Gilberto Oliva,
Defendant-Appellant.
UNITED STATES OF AMERICA, No. 10-50052
Plaintiff-Appellee,
D.C. No.
v. 8:07-cr-00202-
DOC-4
ARTURO CRUZ, AKA Art,
Defendant-Appellant.
UNITED STATES OF AMERICA, No. 10-50058
Plaintiff-Appellee,
D.C. No.
v. 8:07-cr-00202-
DOC-7
ALBERTO HERNANDEZ, AKA
Cruiser, AKA Sugar,
Defendant-Appellant.
2 UNITED STATES V. DIAZ
UNITED STATES OF AMERICA, No. 10-50059
Plaintiff-Appellee,
D.C. No.
v. 8:07-cr-00202-
DOC-5
JOSE GONZALEZ, AKA Black, AKA
Negro,
Defendant-Appellant.
UNITED STATES OF AMERICA, No. 10-50062
Plaintiff-Appellee,
D.C. No.
v. 8:07-cr-00202-
DOC-6
NOE GONZALEZ, AKA Lil Black,
Defendant-Appellant.
UNITED STATES OF AMERICA, No. 10-50064
Plaintiff-Appellee,
D.C. No.
v. 8:07-cr-00202-
DOC-9
MANUEL HERNANDEZ, AKA Frog,
Defendant-Appellant.
UNITED STATES V. DIAZ 3
UNITED STATES OF AMERICA, No. 10-50072
Plaintiff-Appellee,
D.C. No.
v. 8:07-cr-00202-
DOC-1
JESSE VASQUEZ, AKA Pelon,
Defendant-Appellant.
UNITED STATES OF AMERICA, No. 10-50076
Plaintiff-Appellee,
D.C. No.
v. 8:07-cr-00202-
DOC-8
FRANCISCO FLORES, AKA Lil Frank,
Defendant-Appellant.
UNITED STATES OF AMERICA, No. 10-50113
Plaintiff-Appellee,
D.C. No.
v. 8:07-cr-00202-
DOC-23
LUIS A. AGUILAR, AKA Woody,
Defendant-Appellant.
4 UNITED STATES V. DIAZ
UNITED STATES OF AMERICA, No. 10-50115
Plaintiff-Appellee,
D.C. No.
v. 8:07-cr-00202-
DOC-16
CESAR DELA CRUZ, AKA Thumper,
Defendant-Appellant.
OPINION
Appeal from the United States District Court
for the Central District of California
David O. Carter, District Judge, Presiding
Argued and Submitted
November 2, 2015—Pasadena, California
Filed April 20, 2016
Before: Jerome Farris, Jay S. Bybee,
and N. Randy Smith, Circuit Judges.
Opinion by Judge Bybee
UNITED STATES V. DIAZ 5
SUMMARY*
Criminal Law
The panel affirmed a sentence of life imprisonment
mandated under 21 U.S.C. § 841 because of the defendant’s
two prior felony drug convictions.
Four years after his sentencing, California adopted
Proposition 47, which allows California courts to reclassify
certain felony convictions as misdemeanor convictions, and
the defendant successfully petitioned a California court to
reclassify one of his prior California felonies—on which his
federal enhancement was based—as a misdemeanor.
The panel held that Proposition 47 does not undermine a
prior conviction’s felony-status for purposes of § 841. The
panel explained that § 841 requires looking to the status of
the defendant’s state conviction when he was convicted of his
federal crime—and as of that day, the defendant was
“convict[ed] for a felony drug offense” as § 841 requires.
The panel addressed other issues in a concurrently-filed
memorandum disposition.
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
6 UNITED STATES V. DIAZ
COUNSEL
Karen Landau (argued), Oakland, California, for Defendant-
Appellant Manuel Hernandez.
Ethan Balogh (argued) and Jay Nelson, Coleman, Balogh &
Scott LLP, San Francisco, California, for Defendant-
Appellant Jesse Vasquez.
Kenneth Reed, Santa Ana, California, for Defendant-
Appellant Gilbert Oliva Diaz.
Verna Wefald, Pasadena, California, for Defendant-Appellant
Arturo Cruz.
Wayne Young, Santa Monica, California, for Defendant-
Appellant Alberto Hernandez.
David Philips, Riverside, California, for Defendant-Appellant
Jose Gonzalez.
Thomas Wolfsen, Orange, California, for Defendant-
Appellant Noe Gonzalez.
Holly Sullivan, San Diego, California, for Defendant-
Appellant Francisco Flores.
Michael Khouri, Khouri Law Firm, Irvine, California, for
Defendant-Appellant Luis A. Aguilar.
Robison Harley, Santa Ana, California, for Defendant-
Appellant Cesar Dela Cruz.
UNITED STATES V. DIAZ 7
Elana Shavit Artson (argued), Allison Westfahl Kong, and
Robert Dugdale, Assistant United States Attorneys; Stephanie
Yonekura, Acting United States Attorney; United States
Attorney’s Office, Los Angeles, California, for Plaintiff-
Appellee.
OPINION
BYBEE, Circuit Judge:
Jesse Vasquez was a mid-level leader in the Florencia
Trece gang who was convicted of drug-related crimes for his
part in the gang’s drug trafficking operations. The district
court sentenced Vasquez to life imprisonment because his
two prior California felonies qualified him for a mandatory
sentence enhancement under 21 U.S.C. § 841.
Four years after Vasquez’s sentencing, California adopted
Proposition 47, which allowed California courts to reclassify
certain felony convictions as misdemeanor convictions.
Vasquez successfully petitioned a California court to
reclassify one of his prior California felonies—on which his
federal enhancement was based—as a misdemeanor.
Vasquez now argues that his federal enhancement should be
invalidated because he no longer stands convicted of two
prior felonies as § 841 requires.1
We have previously held that a state granting post-
conviction relief from a state conviction cannot undermine a
federal sentence enhancement based on that conviction. We
1
Other issues raised in this case are addressed in a memorandum
disposition filed concurrently with this opinion.
8 UNITED STATES V. DIAZ
have upheld this rule even where a state dismisses or
expunges the underlying state conviction the federal
enhancement is based on. We see no reason to treat a change
to the felony-status of Vasquez’s prior conviction any
differently than we would a dismissal of his prior conviction.
We therefore affirm.
I
In 2007, Vasquez was charged with multiple counts of
racketeering and drug related crimes. Shortly after, the
United States filed an information alleging that Vasquez
qualified for a sentence enhancement under the Controlled
Substances Act, 21 U.S.C. § 841, because of his two prior
felony drug convictions—one of which was a 1996
conviction under California Health and Safety Code section
11350(a) for possession of a controlled substance. In 2009,
Vasquez was convicted. At sentencing in 2010, the district
court imposed life imprisonment, a sentence mandated under
21 U.S.C. § 841(b)(1)(A) because of Vasquez’s “prior
[California] convictions for a felony drug offense.”
In November 2014, California voters enacted Proposition
47, “the Safe Neighborhoods and Schools Act.” Cal. Penal
Code § 1170.18 (codifying Proposition 47); see People v.
Rivera, 183 Cal. Rptr. 3d 362, 363 (Ct. App. 2015). Among
other things, Proposition 47 reduced future convictions under
section 11350(a) from a felony to a misdemeanor.
Proposition 47 also permits previously-convicted defendants
to petition the court for a “recall of sentence,” which, if
granted, would effectively reclassify their qualifying felonies
as misdemeanors. See Cal. Penal Code section 1170.18(a).
In February 2015 Vasquez did just that: He successfully
petitioned the Los Angeles County Superior Court to recall
UNITED STATES V. DIAZ 9
his 1996 felony conviction, and the court resentenced him to
a misdemeanor.2
Proposition 47’s new statutory changes provide that
“[a]ny felony conviction that is recalled and resentenced . . .
or designated as a misdemeanor . . . shall be considered a
misdemeanor for all purposes.” Cal. Penal Code section
1170.18(k). However, the court need not recall a felony
sentence if it finds, in its discretion, that re-classifying the
defendant would pose an unreasonable danger to the
community. Cal. Penal Code section 1170.18(b). The statute
also provides that “[n]othing in this and related sections is
intended to diminish or abrogate the finality of judgments in
any case not falling within the purview of this act.” Cal.
Penal Code section 1170.18(n).
II
Section 841 imposes a mandatory life sentence if a
defendant committed his federal crime “after two or more
2
Vasquez’s petition, and the Superior Court’s action, took place
between the time the district court rendered Vasquez’s sentence and his
appeal was heard by this court. Vasquez filed a supplemental brief on the
issue and asked the panel to consider it as part of his appeal. The
government responded on the merits, but also suggested that the panel
should remand this question because it was not raised below. Because this
issue has arisen while the appeal is pending, and because it is a legal
question which has been fully briefed, we may decide it here for the first
time on appeal. See United States v. Carlson, 900 F.2d 1346, 1349 (9th
Cir. 1990) (holding that we may review a new issue on appeal where it
arose because of a recent change in law or other “exceptional”
circumstance); Gates v. Deukmejian, 987 F.2d 1392, 1407–08 (9th Cir.
1992) (exercising discretion to address defendants’ argument based on
change in law during pendency of appeal). We have determined to
exercise our discretion and decide this question.
10 UNITED STATES V. DIAZ
prior convictions for a felony drug offense.” 21 U.S.C. § 841
(b)(1)(A). A “felony drug offense” is “an offense that is
punishable by imprisonment for more than one year under
any law of the United States or of a State or foreign country.”
21 U.S.C. § 802(44). Vasquez argues that because he
successfully petitioned to have his 1996 conviction re-
designated as a misdemeanor, that conviction no longer
counts as a prior felony conviction for purposes of § 841. We
disagree.
Federal law, not state law, governs our interpretation of
federal statutes. See United States v. Norbury, 492 F.3d
1012, 1014 (9th Cir. 2007) (“Whether a defendant’s prior
state conviction was a ‘conviction’ [within the meaning of
§ 841] is a question of federal, not state, law.”); see also
Dickerson v. New Banner Inst., Inc., 460 U.S. 103, 111–12
(1983) (noting that consulting federal law to determine the
meaning of “convicted” “makes for desirable national
uniformity unaffected by varying state laws, procedures, and
definitions”), holding superseded by statute, as stated in
Logan v. United States, 128 S. Ct. 475, 479–80 (2007). As
we explained when analyzing a defendant’s “convicted felon
status” under the Omnibus Crime Control and Safe Streets
Act: “Although the [state’s] statute [can] determine the status
of the conviction for purposes of state law, it [can]not rewrite
history for the purposes of the administration of the federal
criminal law or the interpretation of federal criminal statutes.”
United States v. Bergeman, 592 F.2d 533, 536 (9th Cir. 1979)
(quotation and citation omitted); see also United States v.
Cisneros, 112 F.3d 1272, 1280 (5th Cir. 1997) (“[W]e are not
bound by [state law’s] treatment of a felony conviction when
we apply the federal sentence-enhancement provisions.”
(quoting United States v. Morales, 854 F.2d 65, 68 (5th Cir.
1988)). We therefore apply federal law, not California law,
UNITED STATES V. DIAZ 11
to determine the effect of California’s reclassification on
Vasquez’s federal sentence enhancement under § 841.
Our general rule is that when a state grants post-
conviction relief to a defendant with respect to his state
felony conviction, we do not apply those changes
retroactively to invalidate federal sentence enhancements.
See, e.g., Norbury, 492 F.3d at 1015. In other words, we look
to whether the prior conviction qualified as a predicate
offense under the state of the law as of the day a defendant
was convicted of his current offense; we ignore any later state
changes to the state conviction. See, e.g., United States v.
Salazar-Mojica, 634 F.3d 1070, 1072–74 (9th Cir. 2011)
(holding that, in context of U.S. Sentencing Guidelines,
defendant had still “previously been deported after being
convicted of a felony,” even though his felony was reduced
to a misdemeanor after his deportation, because “the relevant
time for evaluating a prior conviction” is the time of the
deportation).
The Supreme Court’s decision in McNeill v. United
States, 131 S. Ct. 2218 (2011), illustrates why we avoid
undoing federal sentences after the fact. Under the Armed
Career Criminal Act, the sentencing court had to determine
whether the defendant had previously been convicted of a
“serious drug offense,” “for which a maximum term of
imprisonment of ten years or more is prescribed by law.”
18 U.S.C. § 924(e)(2)(A)(ii). McNeill had been convicted in
the early 1990’s of violating North Carolina drug laws for
which the maximum penalty was at least ten years. McNeill,
131 S. Ct. at 2221. However, in 1994 North Carolina reduced
the maximum sentence for his offense; as of 1994, the state
offense no longer qualified for the federal enhancement. Id.
McNeill argued that, because the state had changed its laws,
12 UNITED STATES V. DIAZ
his prior conviction did not qualify as a “serious drug
offense.” Id. The Court disagreed, holding that the statute
required the federal courts to consider the state statute “at the
time of his conviction for that [state] offense.” Id. at 2222.
The Supreme Court explained that the ACCA asked a
“backward-looking question” and the “only way to answer
[this question] is to consult the law that applied at the time of
that conviction . . . [this] avoids the absurd results that would
follow from consulting current state law to define a previous
offense.” Id. at 2222–23 (emphasis added).
Proposition 47 presents a slight variation on what effect,
if any, we must give to subsequent acts affecting a prior state
sentence. We have never specifically addressed whether a
state that permits reclassifying particular felony convictions
as misdemeanors requires a federal court to revisit a federal
sentence enhancement imposed under § 841. But we have
addressed whether dismissing or expunging a predicate state
conviction invalidates a federal enhancement. See Norbury,
492 F.3d 1012. In Norbury, we held that a state’s later
dismissal or expungement does not retroactively invalidate a
§ 841 federal sentence enhancement. Id. at 1015. We carved
out a single exception: where the dismissal or expungement
alters the legality of the original state conviction—such as
where there was a trial error or it appears the defendant was
actually innocent of the underlying crime. Id.3 Other than
this narrow circumstance, we explained that a federal
enhancement “does not depend upon the mechanics of state
post-conviction procedures, but rather involves the [state]
conviction’s underlying lawfulness.” Id.
3
Proposition 47 did not make Vasquez innocent of his felony possession
of controlled substance. Rather, it downgraded the offense.
UNITED STATES V. DIAZ 13
Although we did not explain our reasoning in Norbury to
great detail, there are several reasons to ignore post-
conviction state actions for purposes of § 841 sentencing
enhancements. First, this approach aligns with § 841’s text.
Like the ACCA provision at issue in McNeill, § 841 is a
“backward-looking,” McNeill, 131 S. Ct. at 2221, inquiry
requiring that a defendant, at the time he is sentenced in
federal court, have “two or more prior convictions for a
felony drug offense,” 21 U.S.C. § 841(b)(1)(A). As the
Tenth Circuit has explained: “The question posed by
§ 841(b)(1)(A) is whether the defendant was previously
convicted, not the particulars of how state law later might
have” permitted relief from the defendant’s state conviction.
United States v. Dyke, 718 F.3d 1282, 1293 (10th Cir. 2013),
cert. denied, 134 S. Ct. 365 (2013). In other words, a state
making a change to a state conviction, after a federal sentence
has been imposed, “does not alter the historical fact of the
[prior state] conviction”—which is all that § 841’s text
requires. Id. at 1292 (quoting Dickerson v. New Banner Inst.,
Inc., 460 U.S. 103, 115 (1983)); see 21 U.S.C. § 841(b)(1)(A)
(merely requiring “two or more prior convictions for a felony
drug offense” at the time that the defendant “commits [the
federal] violation”). Second, even where a state has fully
eradicated a predicate state conviction by dismissing it or
expunging it—a more drastic change than merely
reclassifying it as a misdemeanor—“as a matter of plain
statutory meaning there [is] . . . no question” the defendant
remains sentenced in federal court “after a [prior felony]
conviction.” Dyke, 718 F.3d at 1292.
Congress could, of course, give retroactive effect to
changes in state law “for policy reasons unrelated to
innocence or an error of law.” United States v. Law, 528 F.3d
888, 911 (D.C. Cir. 2008) (per curium). Indeed, it has done
14 UNITED STATES V. DIAZ
so in other circumstances. See United States v. Yepez,
704 F.3d 1087, 1090–91 (9th Cir. 2012) (per curium) (en
banc) (discussing carve-outs in U.S. Sentencing Guidelines).
But it is telling that in § 841, it did not. Ignoring post-
conviction state actions also makes sense in the context of the
Controlled Substances Act. One purpose for § 841 is to
discourage repeat offenders. If a state provides relief for a
prior state drug conviction, after the defendant has committed
another, federal, drug crime, “it’s unclear why a [federal]
statute aimed at punishing recidivism (as § 841(b)(1)(A) is)
would afford the defendant” relief in his federal sentence.
Dyke, 718 F.3d at 1293.
Ignoring post-conviction state actions also aligns with the
Supreme Court’s repeated admonishments that federal laws
should be construed to achieve national uniformity. See
Dickerson, 460 U.S. at 112. As we explained in Bergeman,
“[i]f a conviction were to be determined by application of the
different . . . statutes of each state, then the application of
federal criminal sanctions would depend solely upon where
the defendant’s previous conviction had occurred.” 592 F.2d
at 537. We doubted that Congress would have “intended a
federal criminal law to be applied in such a patchwork
fashion.” Id.; see also United States v. McGlory, 968 F.2d
309, 350 (3d Cir. 1992) (“[W]e note the confusion in
sentencing likely to result if the sentencing court had to
analyze the status of every prior state conviction in terms of
the status of state law. . . . This would entail applying changes
in state law retroactively to final convictions.”).
III
Turning to the facts of this case, we see no reason to
depart from our general rule that post-conviction state actions
UNITED STATES V. DIAZ 15
do not disturb a prior federal sentencing enhancement under
§ 841. Vasquez argues his case is different because
California applies Proposition 47 retroactively, so we should
treat his 1996 felony sentence as if it never existed. But there
are two problems with this argument. First, it is not clear that
even California would apply Proposition 47 retroactively in
a sentence enhancement case such as ours. Although
California’s new statute allows defendants to request
reclassification and a reduced sentence, the statute expressly
provides that “[n]othing in this and related sections is
intended to diminish or abrogate the finality of judgments in
any case not falling within the purview of this act.” Cal.
Penal Code section 1170.18(n). The California Supreme
Court previously addressed a state statute that permits
California courts to declare a “wobbler” offense—one that
can be punished as either a felony or a misdemeanor—to be
a misdemeanor upon completion of probation, even if the
defendant was originally convicted of a felony. And the
California Supreme Court observed that the reclassification
of a felony to a misdemeanor does not necessarily mean the
crime will be treated as a misdemeanor retroactively for the
purpose of other statutory schemes. See People v. Park,
56 Cal. 4th 782, 795–803 (2013) (finding that a felony
wobbler reduced to a misdemeanor would count as a prior
felony conviction for purposes of a sentencing enhancement
under Cal. Penal Code § 667(d)(1), but would not count as a
prior felony conviction for purposes of a sentencing
enhancement under Cal. Penal Code § 667(a)).
But more importantly, the validity of Vasquez’s
enhancement is governed by federal law, not California law.
So even if California decided to give Proposition 47
retroactive effect for its own sentence enhancements, that
would not make Vasquez’s felony conviction a misdemeanor
16 UNITED STATES V. DIAZ
for purposes of a federal statute, here § 841. And as we have
explained above, there is no reason to treat California’s less-
severe alteration to a conviction as retroactively invalidating
federal sentences, when we and our sister circuits have held
that more severe post-conviction state actions, such as
outright expungement, do not. See, e.g., Law, 528 F.3d at
911; Norbury, 492 F.3d at 1015.
We thus hold that California’s Proposition 47, offering
post-conviction relief by reclassifying certain felony
convictions as misdemeanors, does not undermine a prior
conviction’s felony-status for purposes of § 841. Section 841
requires us to look to the status of Vasquez’s state conviction
when he was convicted of his federal crime—and as of that
day, he was “convict[ed] for a felony drug offense” as § 841
requires.
IV
We hold that California’s decision to reclassify Vasquez’s
felony as a misdemeanor does not affect his federal sentence.
AFFIRMED.