United States v. Christopher Johnson , 920 F.3d 628 ( 2019 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 18-10016
Plaintiff-Appellee,
D.C. No.
v. 2:17-cr-00057-
JCM-CWH-1
CHRISTOPHER JOHNSON,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the District of Nevada
James C. Mahan, District Judge, Presiding
Argued and Submitted December 21, 2018
San Francisco, California
Filed April 9, 2019
Before: Milan D. Smith, Jr., Jacqueline H. Nguyen,
and Mark J. Bennett, Circuit Judges.
Opinion by Judge Bennett
2 UNITED STATES V. JOHNSON
SUMMARY *
Criminal Law
The panel affirmed a sentence for being a felon in
possession of a firearm in a case in which the district court
applied a crime-of-violence enhancement pursuant to
U.S.S.G. § 2K2.1(a)(4)(A) based on the defendant’s prior
conviction for assault with a deadly weapon in violation of
Calif. Penal Code § 245(a)(1).
The panel held that, pursuant to Fed. R. Crim. P.
32(i)(3)(A), the defendant’s concessions in the district court
foreclose his newly minted argument that his conviction for
violating § 245(a)(1) was not for a felony – i.e., an offense
“punishable by imprisonment for a term exceeding one year”
– but rather for a misdemeanor, under California law.
Reviewing de novo, the panel held alternatively that the
defendant failed to establish that he received a misdemeanor
sentence for his § 245(a)(1) conviction. The panel explained
that the defendant’s offense never “wobbled” to a
misdemeanor, and that the district court therefore did not err
in concluding that the defendant was previously convicted of
an offense punishable by a term exceeding one year in
prison.
The panel held that Moncrieffe v. Holder, 569 U.S. 184(2013), does not alter this court’s longstanding precedents
holding that a felony conviction under § 245(a)(1) is a crime
of violence. The panel explained that Moncrieffe’s upshot –
*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
UNITED STATES V. JOHNSON 3
a state felony conviction for conduct potentially subject to
both felony and misdemeanor punishment under the
Controlled Substance Act cannot be a predicate offense
under the categorical approach – is inapplicable to this case
because the fact of a § 245(a)(1) conviction establishes that
the defendant was convicted of an offense punishable by
more than one year in prison. The panel wrote that a wobbler
conviction is punishable as a felony, even if the court later
exercises its discretion to reduce the offense to a
misdemeanor.
COUNSEL
Amy B. Cleary (argued) and Cullen O. Macbeth, Assistant
Federal Public Defenders; Rene L. Valladares, Federal
Public Defender; Office of the Federal Public Defender, Las
Vegas, Nevada; for Defendant-Appellant.
Elizabeth O. White (argued), Appellate Chief; Dayle
Elieson, United States Attorney; United States Attorney’s
Office, Reno, Nevada; for Plaintiff-Appellee.
OPINION
BENNETT, Circuit Judge:
Christopher Johnson pleaded guilty to one count of being
a felon in possession of a firearm. The district court assigned
Johnson a base offense level of 20 based on a determination
that Johnson had previously been convicted of a “crime of
violence” as that term is used in § 2K2.1(a)(4)(A) of the U.S.
Sentencing Guidelines Manual (“USSG” or the
4 UNITED STATES V. JOHNSON
“Guidelines”), and sentenced Johnson to 30 months’
imprisonment.
On appeal, Johnson argues that the district court erred by
applying a crime-of-violence enhancement to his offense
level. We first consider whether Johnson’s concessions in
the district court foreclose his newly minted argument that
his underlying conviction for violation of California Penal
Code (“CPC”) § 245(a)(1) was not actually a felony under
California law. Reviewing de novo, we also examine
Johnson’s CPC § 245(a)(1) conviction to determine whether
it truly was for a felony, and if so, whether, in light of
Moncrieffe v. Holder, 569 U.S. 184 (2013), a felony
conviction for violating CPC § 245(a)(1) can be a predicate
offense for a crime-of-violence enhancement. Because the
answer to all three questions is yes, we affirm Johnson’s
sentence.
I.
A grand jury in the District of Nevada indicted Johnson
for possession of a firearm after having been convicted of a
felony, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2).
Johnson pleaded guilty without a plea agreement.
The U.S. Probation Office assigned Johnson a base
offense level of 20 pursuant to USSG § 2K2.1(a)(4)(A),
because of Johnson’s prior conviction for a felony crime of
violence. The predicate crime was Johnson’s 2014
California conviction for assault with a deadly weapon (not
a firearm), in violation of CPC § 245(a)(1), for which
Johnson served six months in county jail. Probation reduced
the offense level by three for acceptance of responsibility,
resulting in a total offense level of seventeen. Johnson’s
advisory Guidelines range was thirty-to-thirty-seven
months.
UNITED STATES V. JOHNSON 5
Johnson objected to Probation’s classification of his
assault-with-a-deadly-weapon conviction as a crime of
violence on the basis that the state offense lacked the mens
rea to qualify as a crime of violence under the categorical
approach. Johnson did not, however, object to Probation’s
classification of his CPC § 245(a)(1) conviction as a felony,
or otherwise assert that the conviction was not for an offense
punishable by more than one year in prison. Rather, he
conceded in his sentencing memorandum that “[h]e has two
prior felony convictions . . . . [He] received his second
felony conviction for Assault with a Deadly Weapon-Not a
Firearm, for which he received a suspended six-month jail
sentence and three years of probation.” The district judge
asked whether Johnson or his attorney found any “errors or
discrepancies” in the presentence investigation report
(“PSR”); both answered that they had not.
The district court held that a conviction under CPC
§ 245(a)(1) is a crime of violence, and overruled Johnson’s
objections to the PSR. The court sentenced Johnson to thirty
months’ imprisonment, the low end of his advisory
Guidelines range. Johnson timely appealed.
II.
“We review ‘de novo a district court’s determination that
a prior conviction qualifies as a “crime of violence” under
the Guidelines . . . .” United States v. Saavedra-Velazquez,
578 F.3d 1103, 1106 (9th Cir. 2009) (quoting United States
v. Rodriguez-Guzman, 506 F.3d 738, 740–41 (9th Cir.
2007)).
The parties dispute the proper standard of review for the
sub-issue whether Johnson’s underlying California
conviction for assault with a deadly weapon was punishable
by more than one year in prison. Johnson argues that we
6 UNITED STATES V. JOHNSON
should review this issue de novo because he has merely
advanced a new argument in support of his preserved claim
that the crime-of-violence enhancement was improper. The
government urges us to review for plain error only because
Johnson failed to make this argument in the district court and
because our consideration of this argument would invite
improper appellate fact-finding.
As we explain below, this dispute is immaterial to our
analysis because Johnson’s argument fails under plain error
and de novo review. We believe, however, that resolution
of this sub-issue is actually governed by Federal Rules of
Criminal Procedure Rule 32(i)(3)(A), which permits a
district court to find as facts, uncontroverted factual
statements in the PSR.
III.
The Guidelines assign a base offense level of twenty for
the offense of unlawful firearms possession by a felon if “the
defendant committed any part of the instant offense
subsequent to sustaining one felony conviction of either a
crime of violence or a controlled substance offense.” USSG
§ 2K2.1(a)(4)(A). The Guidelines define “crime of
violence” as
any offense under federal or state law,
punishable by imprisonment for a term
exceeding one year, that—
(1) has 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
UNITED STATES V. JOHNSON 7
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).
USSG § 4B1.2(a).
The two issues presented in this appeal are whether
Johnson’s assault-with-a-deadly-weapon conviction was for
an offense “punishable by imprisonment for a term
exceeding one year,” and if so, whether CPC § 245(a)(1) can
ever, under the categorical approach, be a crime of violence
after Moncrieffe. 1
A.
Johnson first argues that, by operation of California law,
his conviction was for a misdemeanor, not a felony. Because
under California law, a misdemeanor is not punishable by a
prison term exceeding one year, Johnson asserts that the
crime-of-violence enhancement should not apply.
Ultimately, Johnson’s concessions in the district court
foreclose this argument.
The relevant Commentary to the Guidelines defines
“felony conviction” as “a prior adult federal or state
1
Johnson also argues that CPC § 245(a) lacks the appropriate mens
rea requirement to be considered a crime of violence. As he
acknowledges, though, a long line of our cases—most recently United
States v. Vasquez-Gonzalez, 901 F.3d 1060, 1066–68 (9th Cir. 2018)—
squarely forecloses much of this argument, leaving only Johnson’s
contention that Moncrieffe abrogated our treatment of CPC § 245(a) in
the crime-of-violence context.
8 UNITED STATES V. JOHNSON
conviction for an offense punishable by death or
imprisonment for a term exceeding one year, regardless of
whether such offense is specifically designated as a felony
and regardless of the actual sentence imposed.” 2 USSG
§ 2K2.1 cmt. n.1. The underlying statute of conviction here
provides:
Any person who commits an assault upon the
person of another with a deadly weapon or
instrument other than a firearm shall be
punished by imprisonment in the state prison
for two, three, or four years, or in a county
jail for not exceeding one year, or by a fine
not exceeding ten thousand dollars ($10,000),
or by both the fine and imprisonment.
CPC § 245(a)(1).
The variety of punishments that a defendant can receive
for being convicted under CPC § 245(a)(1) demonstrate that
the statute is a wobbler. “In the parlance of California law
enforcement, a violation of the statute is a ‘wobbler’ that
may be punished either as a felony or as a misdemeanor.”
United States v. Diaz-Argueta, 564 F.3d 1047, 1049 (9th Cir.
2009). “Under California law, a ‘wobbler’ is presumptively
a felony and ‘remains a felony except when the discretion is
actually exercised’ to make the crime a misdemeanor.”
Ewing v. California, 538 U.S. 11, 16 (2003) (quoting People
v. Williams, 163 P.2d 692, 696 (Cal. 1945)). “To determine
whether a conviction for a wobbler is an offense punishable
by a term of imprisonment exceeding one year under . . . the
2
The definition of both “felony conviction” (USSG § 2K2.1 cmt.
n.1.) and “crime of violence,” (id. § 4B1.2 (a)) refer to “imprisonment
for a term exceeding one year.”
UNITED STATES V. JOHNSON 9
Guidelines, the sentencing court must look to state law: Did
the California court’s treatment of the offense convert it into
a ‘misdemeanor for all purposes’ under [CPC] section
17(b)?” United States v. Bridgeforth, 441 F.3d 864, 872 (9th
Cir. 2006). 3 If not, the offense remains a felony. A
conviction becomes a “misdemeanor for all purposes” when
certain conditions are met, including, as relevant here:
“[a]fter a judgment imposing a punishment other than
imprisonment in the state prison or” “[w]hen the court grants
probation to a defendant” without imposition of a sentence
“and at the time of granting probation . . . declares the
offense to be a misdemeanor.” CPC § 17(b)(1) & (3).
Johnson argues that his sentence of six months in the
county jail conclusively establishes that he received a
“punishment other than imprisonment in the state prison,”
thus converting his CPC § 245(a)(1) conviction into a
“misdemeanor for all purposes” under CPC § 17(b)(1). In
addition, Johnson asks us to take judicial notice of several
documents related to sentencing in his underlying CPC
§ 245(a)(1) conviction that, in Johnson’s view, establish that
his sentence converted his wobbler conviction into a
misdemeanor.
3
The Guidelines instruct us: “‘Felony conviction’ means a prior
adult federal or state conviction for an offense punishable by death or
imprisonment for a term exceeding one year, regardless of whether such
offense is specifically designated as a felony and regardless of the actual
sentence imposed.” USSG § 2K2.1 cmt. n.1. Despite this clear
admonition, our binding circuit precedent requires us, where wobblers
are concerned, to ignore the maximum sentence allowed by statute and
instead adopt the designation that California gives to the offense by
operation of CPC § 17(b). See Bridgeforth, 441 F.3d at 872; United
States v. Robinson, 967 F.3d 287, 293 (9th Cir. 1992), recognized as
overruled on other grounds by Ortega-Mendez v. Gonzales, 450 F.3d
1010, 1018–20 (9th Cir. 2006).
10 UNITED STATES V. JOHNSON
We reject Johnson’s belated attempts to characterize his
underlying California conviction as a misdemeanor.
Pursuant to Rule 32(i)(3)(A), the district court “may accept
any undisputed portion of the presentence report as a finding
of fact.” The PSR clearly characterized Johnson’s assault-
with-a-deadly-weapon conviction as a felony. As discussed
above, not only did Johnson fail to challenge that
description, his counsel affirmatively represented to the
court that he had two prior felony convictions, including the
CPC § 245(a)(1) conviction at issue here. Additionally,
Johnson and his attorney confirmed, in open court, the
factual accuracy of the PSR. Because Johnson did not
dispute that he had a felony conviction, the district court was
entitled, under Rule 32, to accept as a fact the PSR’s
characterization of his offense of conviction. Thus, pursuant
to Rule 32, Johnson’s concessions in the district court
foreclose his argument that his conviction was not a felony.
Johnson nonetheless argues that the PSR’s description of
his CPC § 245(a) conviction is at least ambiguous because it
also contained the notation that he was “sentenced to six
months in jail,” which, according to Johnson, means that he
received a qualifying misdemeanor sentence under CPC
§ 17(b)(1). We deem that notation irrelevant because
Johnson conceded that the PSR accurately described the
conviction as a felony. But even were this not so, the mere
fact that Johnson received a six-month jail sentence does not
necessarily mean that his conviction was for a misdemeanor.
The PSR does not indicate that the California sentencing
court entered a judgment imposing a six-month sentence.
Indeed, Johnson’s six-month term could have been a
condition of probation (which seems very likely, for the
reasons discussed below), in which case, the “six months in
jail” notation would not contradict the PSR’s
characterization of the offense as a felony.
UNITED STATES V. JOHNSON 11
We addressed a similar situation in United States v.
Grajeda, 581 F.3d 1186 (9th Cir. 2009), and our resolution
of the issue in Grajeda is instructive here. Grajeda argued
on appeal that the district court erred by failing to resolve a
factual dispute surrounding the prior convictions described
in the PSR. Grajeda, 581 F.3d at 1188. We reviewed the
objections that Grajeda made in the district court and
concluded that, contrary to his assertions on appeal, “his
objections raised only legal arguments, not factual ones.
Grajeda did not controvert the accuracy of the PSR or argue
that he had not been convicted of the listed crimes.” Id. at
1189. Because Grajeda did not challenge the factual basis for
his sentencing enhancement, Rule 32 permitted the district
court to accept the PSR’s factual findings regarding his
underlying convictions. Id. at 1188.
So too here. The record shows that Johnson did not
challenge the factual accuracy of the PSR’s description of
his CPC § 245(a)(1) conviction as a felony. 4 Rather, like the
defendant in Grajeda, Johnson’s objections were purely
legal: he argued that CPC § 245(a)(1) is overbroad under the
categorical approach and thus cannot be considered a crime
of violence. Because Johnson failed to controvert the PSR’s
felony classification of his § 245(a)(1) conviction, the
district court was entitled to accept that aspect of the PSR as
a finding of fact under Rule 32. See United States v. Romero-
Rendon, 220 F.3d 1159, 1163 n.4 (9th Cir. 2000) (“The
government bears the burden of proving the facts underlying
the enhancement. Where, as here, it submits the PSR as
proof, and the defendant submits no contrary evidence, the
only evidence before the sentencing judge is the
4
Indeed, he did the opposite and expressly confirmed that the PSR
was factually accurate.
12 UNITED STATES V. JOHNSON
uncontroverted PSR. In these cases, a judge may rely on it to
establish the factual basis for the enhancement.”).
We also hold alternatively that Johnson has failed to
establish that he received a misdemeanor sentence for his
§ 245(a)(1) conviction.
Johnson asserts that the state court record supports his
claim because the sentencing court asked, before
commencing the proceeding, whether there existed “any
legal cause why judgment should not be pronounced.” While
we agree that the court’s statement suggested it was about to
enter a judgment, we do not agree with Johnson that the court
actually did impose a judgment (none appears in the
documents that Johnson submitted) or that even if it did so,
any such judgment would convert his conviction into a
misdemeanor by operation of CPC § 17(b).
Rather, the documents that Johnson submitted contain
numerous indications that Johnson received a sentence that
did not convert his conviction to a misdemeanor. First the
document titled “Felony Plea Form,” suggests that Johnson
pleaded guilty to a felony. Second, that Form shows
Johnson’s initials next to this statement: “As a convicted
felon, I will not be able to own or possess any firearm.”
Third, the sentencing memorandum filed in the case, and
signed by the defendant, the defense attorney, and the
judicial officer, has two boxes at the top: “Felony” and
“Misdemeanor.” “Felony” is checked.
Finally, and perhaps most importantly, the documents
make clear that Johnson received, in addition to a term in
county jail, a term of 36 months’ formal probation. The
documents also show that Johnson’s 180-day term in county
jail was not a standalone sentence, but rather was a “legal
UNITED STATES V. JOHNSON 13
restriction apply[ing] to a decision to grant probation in this
case.”
“[A]n order granting probation is not a judgment.”
United States v. Robinson, 967 F.2d 287, 293 (9th Cir. 1992)
(quoting People v. Smith, 16 Cal. Rptr. 12, 13 (Dist. Ct. App.
1961)), abrogated on other grounds by Ortega-Mendez v.
Gonzales, 450 F.3d 1010, 1018–20 (9th Cir. 2006). Where,
as here, a California court grants probation “subject to
serving the first [six] months in jail,” the requirements of
CPC § 17(b) are not met. Id. at 292. Johnson’s offense
therefore never “wobbled” to a misdemeanor, and the district
court did not err in concluding that Johnson was previously
convicted of an offense punishable by a term exceeding one
year in prison.
Johnson argues that our recent decision in United States
v. Valencia-Mendoza, 912 F.3d 1215 (9th Cir. 2019),
requires us to hold that his conviction was for a
misdemeanor. In Velencia-Mendoza, we held that when we
consider whether a predicate offense (for purposes of a
sentencing enhancement) was “punishable by imprisonment
for a term exceeding one year,” we must consider, in
addition to the relevant statutory maximum sentence for the
offense, any mandatory sentencing factors that would limit
the actual maximum sentence that the defendant was eligible
to receive. Id. at 1224. Johnson argues that if we follow
Valencia-Mendoza’s guidance and take a “realistic look” (id.
at 1223) at Johnson’s CPC § 245(a)(1) conviction, we will
arrive at the conclusion that he was convicted of a
misdemeanor. We disagree.
In this case, there are no mandatory sentencing factors
that would potentially affect whether Johnson’s CPC
§ 245(a)(1) conviction was punishable by a prison term
exceeding one year. Rather, we look solely to whether the
14 UNITED STATES V. JOHNSON
actual sentence the court imposed converted Johnson’s
conviction to a “misdemeanor for all purposes” under CPC
§ 17(b)—if not, it remains punishable as a felony under
USSG § 2K2.1 cmt. n.1. See Bridgeforth, 441 F.3d at 872.
And as we discussed above, applying CPC § 17 to Johnson’s
conviction, we readily conclude that the state sentencing
court did not convert Johnson’s conviction to a
misdemeanor. Valencia-Mendoza does not alter that analysis
or our conclusion.
B.
We turn next to Johnson’s argument that Moncrieffe has
abrogated our treatment of wobbler offenses in the context
of a crime-of-violence sentencing enhancement. We start by
briefly describing the framework we use when evaluating
whether a prior conviction is for a crime of violence.
We employ the categorical approach described in Taylor
v. United States, 495 U.S. 575 (1990), to determine whether
Johnson’s CPC § 245(a)(1) conviction is a “crime of
violence.” See Fernandez-Ruiz v. Gonzales, 466 F.3d 1121,
1125 (9th Cir. 2006) (en banc). We consider “whether the
offense defined by section 245(a)(1) is categorically a crime
of violence by assessing whether the full range of conduct
covered by the statute falls within the meaning of that term.”
Grajeda, 581 F.3d at 1189 (internal quotation marks and
alterations omitted) (quoting United States v. Juvenile
Female, 566 F.3d 943, 946 (9th Cir. 2009)); see also
Moncrieffe, 569 U.S. at 190 (“[W]e look ‘not to the facts of
the particular prior case,’ but instead to whether the ‘state
statute defining the crime of conviction’ categorically fits
within the ‘generic’ federal definition of a corresponding
aggravated felony.” (quoting Gonzales v. Duenas-Alvarez,
549 U.S. 183, 186 (2007)).
UNITED STATES V. JOHNSON 15
In Moncrieffe, the Court held that a Georgia conviction
for possession with intent to distribute marijuana was not
categorically an aggravated felony for purposes of the
Immigration and Nationality Act (“INA”), because the fact
of the conviction itself failed to establish that the offense of
conviction was comparable to an offense listed in the INA
(in that case, the INA referenced the Controlled Substances
Act (“CSA”)). Because the relevant Georgia law would
sustain a felony for transfer of only a small amount of
marijuana without remuneration, but the analogous CSA
provision would treat the same conduct as a misdemeanor,
the Georgia violation was not “‘necessarily’ [for] conduct
punishable as a felony under the CSA,” and therefore not
categorically an aggravated felony. 569 U.S. at 192. 5
Johnson argues that Moncrieffe abrogates our prior
holdings that require us to analyze a wobbler conviction
under the categorical approach. “The fact that the law
permits conviction as either a misdemeanor or felony does
not preclude a categorical analysis.” United States v.
Salazar-Mojica, 634 F.3d 1070, 1072 n.2 (9th Cir. 2011).
Under Moncrieffe, Johnson argues, “a statute categorically
qualifies as a crime of violence only if it is punishable by
more than a year in prison in every case.” Because CPC
5
The statute at issue in Moncrieffe is similar to the Guidelines
provision at issue here, insofar as it “provides that a ‘felony’ is an offense
for which the ‘maximum term of imprisonment authorized’ is ‘more than
one year.’” Moncrieffe, 569 U.S. at 188 (quoting 18 U.S.C.
§ 3559(a)(5)). However, § 3559(a)(5) does not contain language like
that present in the relevant Guideline Comment: “‘Felony conviction’”
means a prior adult federal or state conviction for an offense punishable
by death or imprisonment for a term exceeding one year, regardless of
whether such offense is specifically designated as a felony and
regardless of the actual sentence imposed.” USSG § 2K2.1 cmt. n.1.
(emphasis added).
16 UNITED STATES V. JOHNSON
§ 245(a)(1) can be punished as either a felony or a
misdemeanor (depending on whether it wobbles), Johnson
claims that it is not punishable by more than one year in
prison in every case, and therefore is not categorically a
crime of violence.
We reject this argument because it misinterprets the
scope of Moncrieffe. Moncrieffe reiterated the proposition
that “a state offense is a categorical match with a generic
federal offense only if a conviction of the state offense
‘“necessarily involved facts equating to the generic federal
offense.’” 569 U.S. at 190 (internal alterations omitted)
(quoting Shepard v. United States, 544 U.S. 13, 24 (2005)
(plurality opinion)). “[T]o satisfy the categorical approach, a
state . . . offense must meet two conditions: It must
‘necessarily’ proscribe conduct that is an offense under the
[federal analog], and the [federal analog] must ‘necessarily’
prescribe felony punishment for that conduct.” Id. at 192; see
also id. at 197–98 (“[O]ur ‘more focused, categorical
inquiry’ is whether the record of conviction of the predicate
offense necessarily establishes conduct that the CSA, on its
own terms, makes punishable as a felony.” (emphasis added)
(quoting Carachuri-Rosendo v. Holder, 560 U.S. 563, 580
(2010))).
In this case, a conviction under § 245(a)(1) establishes
conduct that California law makes punishable as a felony.
Indeed, “under California law, a ‘wobbler’ is presumptively
a felony and ‘remains a felony except when the discretion is
actually exercised’ to make the crime a misdemeanor.”
Ewing, 538 U.S. at 16 (internal quotation marks omitted)
(quoting Williams, 163 P.2d at 696); see also People v.
Superior Court (Alvarez), 928 P.2d 1171, 1176 (Cal. 1997)
(observing that California law “rests the decision whether to
reduce a wobbler solely ‘in the discretion of the court’”)
UNITED STATES V. JOHNSON 17
(emphasis added). The fact of a CPC § 245(a)(1) conviction
establishes that the defendant was convicted of an offense
punishable by more than one year in prison. Thus,
Moncrieffe’s upshot—a state felony conviction for conduct
potentially subject to both felony and misdemeanor
punishment under the CSA cannot be a predicate offense
under the categorical approach—is inapplicable here. Cf.
People v. Finley, 33 Cal. Rptr. 31, 37 (Cal. Dist. Ct. App.
1963) (holding that a wobbler assault is always a felony for
purposes of felony-murder conviction where the defendant
is not charged or tried separately for the assault, because
“there is . . . no occasion or opportunity to impose a sentence
or to thus convert the felony into a misdemeanor. For the
purpose of the instant prosecution the infliction of such an
assault is felony and can be nothing less”).
Johnson argues, though, that a wobbler conviction is not
necessarily punishable as a felony because the California
legislature has given California sentencing courts the
discretion to determine whether the offense is a felony or
misdemeanor. Johnson’s argument misapprehends the
nature of a wobbler under California law. As noted above, a
wobbler “remains a felony . . . ‘unless and until the trial
court imposes a misdemeanor sentence.’” Ewing, 538 U.S.
at 28–29 (quoting In re Anderson, 447 P.2d 117, 126 (Cal.
1968)). Importantly, though, this “classification of the
offense as a misdemeanor [does] not operate retroactively to
the time of the crime’s commission, the charge, or the
adjudication of guilt.” People v. Park, 299 P.3d 1263, 1268
n.6 (Cal. 2013). A wobbler conviction is therefore
punishable as a felony, even if the court later exercises its
discretion to reduce the offense to a misdemeanor.
Moreover, this case does not implicate the concern,
identified by the Court in Moncrieffe, that underlies the
18 UNITED STATES V. JOHNSON
categorical approach: the potential unfairness of relitigation
of prior offenses to determine whether the facts of the prior
particular offense constitute a crime of violence. Instead, to
determine whether a conviction under CPC § 245(a)(1) is
punishable as a felony, the court need look only at the
defendant’s conviction and sentence. See CPC § 17(b);
Bridgeforth, 441 F.3d at 871.
IV.
Because Johnson confirmed to the district court that the
PSR accurately described his CPC § 245(a)(1) as a felony,
the court was entitled to rely on that characterization, and we
will not disturb it on appeal. We reach the same result
reviewing the classification of Johnson’s state-court
sentence de novo. Finally, Moncrieffe does not alter our
longstanding precedents holding that a felony conviction
under CPC § 245(a)(1) is a crime of violence. We therefore
reject Johnson’s challenges to the crime-of-violence
enhancement to his offense level.
The district court’s judgment is AFFIRMED.