United States v. Murillo ( 2005 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 04-30508
Plaintiff-Appellant,
v.  D.C. No.
CR-04-02074-EFS
PETER SANTOS MURILLO,
OPINION
Defendant-Appellee.

Appeal from the United States District Court
for the Eastern District of Washington
Edward F. Shea, District Judge, Presiding
Argued and Submitted
August 5, 2005—Seattle, Washington
Filed September 9, 2005
Before: David R. Thompson, Thomas G. Nelson, and
Kim McLane Wardlaw, Circuit Judges.
Opinion by Judge Thompson
12835
UNITED STATES v. MURILLO 12837
COUNSEL
K. Jill Bolton, Assistant United States Attorney, Yakima,
Washington, for the plaintiff-appellant.
Rebecca L. Pennell, Yakima, Washington, for the defendant-
appellee.
OPINION
THOMPSON, Circuit Judge:
In this appeal we conclude that, notwithstanding the
Supreme Court’s decision in Blakely v. Washington, 542 U.S.
296, 124 S. Ct. 2531 (2004), in determining whether a Wash-
ington state criminal conviction is of a crime punishable by a
term exceeding one year for purposes of prosecution under 18
U.S.C. § 922(g)(1) (felon in possession of a firearm), the
maximum sentence for the prior conviction is defined by the
state criminal statute, not the maximum sentence in the partic-
ular case set by Washington’s sentencing guidelines.
BACKGROUND
Peter Santos Murillo pled guilty in 1998 in Washington
state court to one count of harassment in violation of R.C.W.
§ 9A.46.020(2)(b), and one count of unlawful possession of a
firearm in the second degree in violation of R.C.W.
§ 9.41.040(2)(b). Each crime is considered a class C felony
punishable by a term of imprisonment up to five years.
R.C.W. § 9A.20.021(1)(c). Under Washington’s sentencing
guidelines, based on Murillo’s “Seriousness Level” of III and
12838 UNITED STATES v. MURILLO
his “Offender Score” of 2 for his harassment conviction and
3 for his unlawful firearm possession conviction, Murillo’s
actual maximum possible term of imprisonment was 12
months. R.C.W. §§ 9.94A.510, 9.94A.515. Murillo was sen-
tenced to a term of 10 months’ imprisonment on each count,
to run concurrently.
In 2004, Murillo was indicted in federal court and charged
with being a felon in possession of a firearm in violation of
18 U.S.C. § 922(g)(1). The indictment was premised on
Murillo’s two underlying Washington state convictions. Rely-
ing on Blakely, Murillo argued the indictment should be dis-
missed because he had not been convicted of any crimes for
which he could have been punished by a term exceeding one
year. He claimed that even though the statutory maximum for
his convictions was five years, because no aggravating facts
had been pleaded or proved against him, under Washington’s
sentencing guidelines he was only punishable by a term of up
to 12 months. The district court agreed, held that his two state
convictions were not for crimes punishable by a term exceed-
ing one year, and dismissed the indictment against him. We
have jurisdiction under 18 U.S.C. § 3731, and we reverse.
DISCUSSION
Title 18 U.S.C. § 922(g)(1) makes it unlawful for any per-
son “who has been convicted in any court of [ ] a crime pun-
ishable by imprisonment for a term exceeding one year” from
possessing firearms that have been shipped or transported in
interstate or foreign commerce. Murillo’s two predicate
offenses do not fall within section 922(g)(1)’s exceptions
(certain business practice violations and state misdemeanors),
see 18 U.S.C. § 921(a)(20), and his guilty pleas constitute
convictions, see United States v. Marks, 379 F.3d 1114, 1117-
18 (9th Cir. 2004), cert. denied, ___ U.S. ___, 125 S. Ct. 1355
(2005). Thus, the issue is whether his convictions were of
crimes punishable by a term exceeding one year.
UNITED STATES v. MURILLO 12839
[1] We repeatedly held prior to the Supreme Court’s
Blakely decision that in determining whether a state convic-
tion is punishable for more than one year’s imprisonment for
purposes of a federal criminal statute predicated on a prior fel-
ony conviction or for federal sentencing purposes, we look to
the maximum penalty allowed by statute. In United States v.
Horodoner, 993 F.2d 191 (9th Cir. 1993), we held a defen-
dant’s prior California state conviction was of a crime punish-
able by more than one year’s imprisonment and thus served
as a predicate offense for purposes of 18 U.S.C. § 922(g)(1)
because the maximum statutory sentence was a term of four
years, even though the defendant had been sentenced to 365
days’ imprisonment. Id. at 194. In United States v. Rios-
Beltran, 361 F.3d 1204 (9th Cir. 2004), we held for purposes
of federal sentencing enhancement that a defendant’s prior
Oregon state conviction was of an aggravated felony, or a
crime “punishable by more than one year’s imprisonment
under applicable state or federal law,” because the maximum
statutory sentence was a term of five years, even though under
the Oregon sentencing guidelines the defendant’s actual maxi-
mum possible term of imprisonment was 90 days. Id. at 1207
(internal quotation marks and citation omitted). We stated:
The actual sentence imposed on an individual for a
prior conviction, or the actual sentence that poten-
tially could have been imposed based upon the par-
ticular facts of that person’s case, is not the relevant
inquiry. We look to the maximum penalty allowed
by law in determining whether a prior conviction
constitutes an aggravated felony under state law for
purposes of [U.S.S.G.] § 2L1.2.
Id. at 1208.
Murillo argues Blakely changed all this. He claims that fol-
lowing Blakely, the maximum sentence a court may impose
for a crime is defined by the maximum term that may be
imposed based solely on the facts established by a guilty ver-
12840 UNITED STATES v. MURILLO
dict. If no aggravating factors are pleaded and proved, then
the maximum sentence must be considered the maximum of
the range in the state’s sentencing guideline grid, not the max-
imum set by the state’s applicable criminal statute.
[2] Recently, we were presented with an argument similar
to the one Murillo makes, but we did not decide the issue. See
United States v. Moreno-Hernandez, ___ F.3d ___, 2005 WL
1560269, at *8 (9th Cir. July 5, 2005) (“We express no opin-
ion on how section 2L1.2 would apply in a case where the
statutory maximum for a prior conviction was greater than
one year, but the maximum actual sentence that could law-
fully be imposed at the time of the conviction was less than
one year.”) (emphasis omitted). Here, we hold that Blakely
did not change the definition of what constitutes a maximum
sentence under state law for purposes of prosecution under 18
U.S.C. § 922(g)(1): the maximum sentence is the statutory
maximum sentence for the offense, not the maximum sen-
tence available in the particular case under the sentencing
guidelines.
In Blakely, a state trial court sentenced the defendant to a
term of imprisonment based on the trial judge’s findings that
were neither admitted by the defendant nor found by the jury.
The sentence the court imposed exceeded the maximum
allowed by the state sentencing guidelines (for the facts found
by the jury), but was within the maximum sentence defined
by the criminal statute the defendant had violated. The Court
held that the court’s sentence violated the defendant’s Sixth
Amendment right to trial by jury. Blakely, 124 S. Ct. at 2537-
38. The Court concluded that “the ‘statutory maximum’ for
Apprendi purposes is the maximum sentence a judge may
impose solely on the basis of the facts reflected in the jury
verdict or admitted by the defendant.” Id. at 2537 (citing
Apprendi v. New Jersey, 530 U.S. 466 (2000)) (emphasis
added and removed). The Court’s subsequent decision in
United States v. Booker, ___ U.S. ___, 125 S. Ct. 738, 752
UNITED STATES v. MURILLO 12841
(2005), which applied the reasoning in Blakely to the Federal
Sentencing Guidelines, did not change this result.
After the Court’s decision in Blakely, we have assumed,
without addressing Blakely, that the pre-Blakely maximum
sentence definition for section 922(g)(1) prosecution purposes
remained correct. In Marks, 379 F.3d 1114 (2004), decided
less than two months after Blakely, we held that a Washington
state conviction could be counted as a predicate offense for
purposes of prosecution under 18 U.S.C. § 922(g)(1) regard-
less of whether the conviction was constitutionally invalid as
a result of the defendant receiving ineffective assistance of
counsel, so long as the conviction had not been expunged,
vacated, or set aside. Marks, 379 F.3d at 1118-19. In so hold-
ing, we assumed that the defendant’s state conviction, punish-
able under the applicable state statute for up to ten years’
imprisonment, constituted a conviction punishable for more
than one year, even though the defendant had been sentenced
to only six months’ imprisonment. While never addressing
Blakely, we stated:
Although § 921(a)(20) does direct federal courts to
look to state law to determine whether there is a
qualifying predicate conviction, this requirement has
been satisfied in this case by the jury’s verdict of
guilty of the charge of assault in the second degree,
a crime punishable by a maximum of ten years’
imprisonment, a twenty thousand dollar fine, or both.
Id. at 1119.
Here, addressing Blakely directly, we confirm our assump-
tion in Marks. Murillo’s argument has nothing to do with
Apprendi or Blakely. While Apprendi, and correspondingly
Blakely, involved the “maximum sentence” a judge may
impose based on the jury’s verdict or the defendant’s admis-
sions, Murillo attempts to extend Apprendi and Blakely to
modify a crime’s potential punishment — punishment that
12842 UNITED STATES v. MURILLO
makes the crime a predicate offense under 18 U.S.C.
§ 922(g)(1). The categorization of predicate offenses for pur-
poses of section 922(g)(1) faces none of the Sixth Amend-
ment concerns that prompted the Apprendi and Blakely
decisions, and thus those cases have no bearing on the ques-
tion whether the indictment against Murillo in the present
case for being a felon in possession of a firearm violated his
Sixth Amendment rights.
For the foregoing reasons, we hold the maximum sentence
that makes a prior conviction under state law a predicate
offense under 18 U.S.C. § 922(g)(1) remains, after Blakely,
the potential maximum sentence defined by the applicable
state criminal statute, not the maximum sentence which could
have been imposed against the particular defendant for his
commission of that crime according to the state’s sentencing
guidelines. We therefore reverse the district court’s dismissal
of the indictment charging Murillo with a violation of 18
U.S.C. § 922(g)(1).
REVERSED.