United States v. Juan Garcia Herrera ( 2018 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 10 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 17-50074
Plaintiff-Appellee, D.C. No. 8:15-cr-00161-AG-1
v.
MEMORANDUM*
JUAN GARCIA HERRERA, AKA Juan
Herrera Garcia,
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
Andrew J. Guilford, District Judge, Presiding
Argued and Submitted November 15, 2018
Pasadena, California
Before: GOULD, PARKER,** and MURGUIA, Circuit Judges.
On October 27, 2016, Defendant Juan Garcia Herrera pleaded guilty to one
count of conspiracy under 18 U.S.C. § 371 and one count of distribution of
methamphetamine under 21 U.S.C. § 841(a)(1), (b)(1)(A)(viii). He also admitted
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Barrington D. Parker, United States Circuit Judge for
the U.S. Court of Appeals for the Second Circuit, sitting by designation.
to a prior conviction for “a felony drug offense as that term is defined and used in
Title 21, United States Code, Sections 802(44), 841, and 851.” On February 27,
2017, the district court sentenced Herrera to the mandatory minimum of 240
months’ imprisonment, applying a sentence enhancement for the prior drug
conviction admitted in the information. Herrera appealed. We have jurisdiction
under 28 U.S.C. § 1291, and we affirm.
1. Herrera contends that his sentence is impermissible under United States v.
Booker, 543 U.S. 220 (2005) and United States v. Ocampo-Estrada, 873 F.3d 661(9th Cir. 2017). He has waived these contentions in his plea because they go to
“the procedures and calculations used to determine and impose” his sentence and
do not allege that the sentence is illegal. The appeal waiver remains effective
notwithstanding the district court’s suggestions that Herrera might have rights to
appeal at sentencing because an “equivocal statement indicating that [the
defendant] ‘possibly’ has the right to appeal [does] not cancel his prior waiver.”
United States v. Arias-Espinoza, 704 F.3d 616, 619 (9th Cir. 2012).
2. Herrera’s other challenges to his sentence are not waived, however, because
“even a valid appeal waiver does not prevent courts from reviewing an illegal
sentence.” United States v. Pollard, 850 F.3d 1038, 1041 (9th Cir. 2017); see
United States v. Bibler, 495 F.3d 621, 624 (9th Cir. 2007) (defining an illegal
sentence as a sentence that “exceeds the permissible statutory penalty for the crime
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or violates the Constitution”). Herrera’s challenge under 21 U.S.C. § 851(b) is not
waived because “failure to comply with § 851(b) renders the sentence illegal.”
United States v. Rodriguez, 851 F.3d 931, 946 (9th Cir. 2017) (quoting United
States v. Housely, 907 F.2d 920, 921 (9th Cir. 1990)). Nonetheless, we reject
Herrera’s § 851(b) challenge. Although the district court did not conduct a
colloquy with Herrera as required by § 851(b), this error is harmless. See Housely,
907 F.2d at 921–22. Herrera is statutorily barred from challenging the validity of
his prior conviction by 18 U.S.C. § 851(e), and Herrera repeatedly admitted that
the prior conviction was his. The district court’s failure to comply with § 851(b)
did not affect Herrera’s “substantial rights” and cannot be a basis for reversing
Herrera’s sentence. See United States v. Severino, 316 F.3d 939, 947 (9th Cir.
2003) (en banc).
3. We also reject Herrera’s contention that the definition of “felony drug
offense” in 21 U.S.C. § 802(44) is unconstitutionally vague. We have previously
considered whether the definition of “felony drug offense” is unconstitutionally
vague by asking whether the law gives the defendant a reasonable opportunity to
know that his or her particular prior conviction could be the subject of an
enhancement under 21 U.S.C. § 841(b)(1)(a). See United States v. Mincoff, 574
F.3d 1186, 1201 (9th Cir. 2009); United States v. Van Winrow, 951 F.2d 1069,
1072 (9th Cir. 1991). Following the rule applied in those cases, we ask whether
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Herrera had “a reasonable opportunity to know” that his prior convictions were
offenses “punishable by imprisonment for more than one year under any law. . .
that prohibits or restricts conduct relating to narcotic drugs . . . or depressant or
stimulant substances.” Tucson Woman’s Clinic v. Eden, 379 F.3d 531, 554 (9th
Cir. 2004), as amended (Aug. 23, 2004); 21 U.S.C. § 802(44). Because Herrera’s
prior convictions were felony convictions for the sale or transportation of heroin,
possession for sale of heroin, sale or transportation of cocaine, possession for sale
of cocaine, sale or transportation of methamphetamine, and possession for sale of
methamphetamine under California law, it is clear that these convictions were
felonies involving conduct relating to drugs. The definition of “felony drug
offense” is not vague as applied to Herrera.
Herrera contends that the foregoing authority is inconsistent with Johnson v.
United States, 135 S. Ct. 2551 (2015). As a three-judge panel, we are bound by
prior Ninth Circuit precedent unless it is “clearly irreconcilable” with intervening
Supreme Court authority. Miller v. Gammie, 335 F.3d 889, 893 (9th Cir. 2003) (en
banc). In contrast to a situation like Guerrero v. Whitaker, where we held that
prior precedent was “clearly irreconcilable” with Johnson, No. 15-72080, 2018
WL 5852651, at *3 (9th Cir. Nov. 9, 2018), our prior precedent interpreting
“felony drug offense” did not rely on a legal test rejected in Johnson. Rather, the
approach we followed in Van Winrow relied on prior precedent concerning when a
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defendant’s vagueness challenge should be assessed as applied to his or her
circumstances, an issue which Johnson did not directly address. See 951 F.2d at
1072. Without further clarification by the Supreme Court, we cannot say that we
are no longer bound by our prior cases, and we must reject Herrera’s vagueness
challenge.
4. Finally, binding precedent forecloses Herrera’s challenge to his sentence
under the Sixth Amendment and Apprendi v. New Jersey, 530 U.S. 466 (2000) and
Alleyne v. United States, 133 S. Ct. 2151 (2013). Under Almendarez-Torres v.
United States, 523 U.S. 224 (1998), the fact of a prior conviction is not an element
of the defendant’s offense that must be decided by a jury under the Sixth
Amendment. We have previously rejected the argument that Apprendi and Alleyne
overruled Almendarez-Torres. Rodriguez, 851 F.3d at 945.
All of Herrera’s challenges to his sentence were either waived or are without
merit.
AFFIRMED.
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