United States v. Almazan-Bacerra ( 2007 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 05-10056
Plaintiff-Appellee, D.C. No.
v.  CR-03-40212-DLJ
JULIO ALMAZAN-BECERRA, ORDER AND
Defendant-Appellant.
 OPINION
Appeal from the United States District Court
for the Northern District of California
D. Lowell Jensen, District Judge, Presiding
Argued and Submitted
February 16, 2006—San Francisco, California
Filed March 29, 2007
Before: J. Clifford Wallace, Michael Daly Hawkins, and
Sidney R. Thomas, Circuit Judges.
Opinion by Judge Wallace
3603
3606 UNITED STATES v. ALMAZAN-BECERRA
COUNSEL
Donald W. Searles, Fenwick & West LLP, San Francisco,
California, for defendant-appellant Julio Almazan-Becerra.
Barbara J. Valliere, Assistant United States Attorney, San
Francisco, California, for the plaintiff-appellee.
ORDER
The opinion filed on August 1, 2006, cited at 456 F.3d 949(9th Cir. 2006) is hereby withdrawn.
OPINION
WALLACE, Senior Circuit Judge:
Almazan-Becerra appeals from his sentence of seventy
months imprisonment after a conviction of illegal reentry fol-
lowing deportation in violation of 8 U.S.C. § 1326. He argues
that the district court’s application of both a sixteen-level and
a twelve-level enhancement based on prior felony drug con-
victions was erroneous. We have jurisdiction pursuant to 18
U.S.C. § 3742(a). We vacate the sentence and remand for
resentencing.
I.
Almazan-Becerra is a Mexican national who was deported
from the United States on three occasions: May 14, 1992,
UNITED STATES v. ALMAZAN-BECERRA 3607
October 31, 1997, and September 12, 2002. On September 3,
2003, he was found in Northern California and later identified
by his fingerprints. He was charged with and convicted of
illegal re-entry, 8 U.S.C. § 1326. He does not appeal from that
conviction. Rather, he contends that he was improperly sen-
tenced based on two potentially relevant prior convictions.
In January 1995, Almazan-Becerra was convicted of violat-
ing California Health & Safety Code § 11360(a), a felony
drug offense, for conduct involving marijuana. In 1998, he
was convicted of violating California Health & Safety Code
§ 11379, a felony drug offense, for transporting methamphet-
amine.
The 1995 conviction was based on an indictment that twice
charged that Almazan-Becerra committed “the crime of
TRANSPORT/SELL/OFFER TO SELL MARIJUANA.” The
indictment also stated that Almazan-Becerra “did sell and
offer to sell a controlled substance . . . .” Almazan-Becerra
agreed to plead guilty to the crime. At the plea colloquy,
Almazan-Becerra twice admitted that he did “either transport
or sell or offer to sell marijuana . . . .” He was later asked “do
you admit . . . that you did sell, transport or offer to sell mari-
juana . . .” to which he answered, “Yes.” Almazan-Becerra’s
counsel stipulated that the related police reports contained a
factual basis to support his guilty plea. The reports described
hand-to-hand sales of marijuana. Almazan-Becerra was sen-
tenced to twenty-four months in prison.
The 1998 conviction was based on an amended charge that
Almazan-Becerra committed the “crime of transport of a con-
trolled substance . . . to wit, methamphetamine.” During the
plea colloquy, the judge stated, “It’s alleged that you did
transport a controlled substance, methamphetamine. To that
charge how do you plead?” Almazan-Becerra answered,
“Guilty.” The court imposed a twelve-month sentence.
The district court sentenced Almazan-Becerra two days
after the Supreme Court decided United States v. Booker, 543
3608 UNITED STATES v. ALMAZAN-BECERRA
U.S. 220 (2005). In its remedial holding, the Court in Booker
severed the mandatory aspect of the Sentencing Guidelines
(Guidelines) and rendered them “effectively advisory.” Id. at
245. The district court properly recognized that the Guidelines
were not mandatory.
At sentencing, neither party challenged the district court’s
determination that Almazan-Becerra’s base offense level was
eight. The district court then applied a sixteen-level enhance-
ment, based on its determination that the 1995 conviction
qualified as “a drug trafficking offense for which the sentence
imposed exceeded 13 months” under United States Sentenc-
ing Guidelines (U.S.S.G.) § 2L1.2(b)(1)(A).
The district court decided to make a downward departure
based on the relatively minor nature of the 1995 conviction,
which involved two sales of marijuana for approximately fif-
teen dollars each. The court also departed downward four
levels based on its belief that the 1998 conviction would have
required a twelve-level enhancement under U.S.S.G.
§ 2L1.2(b)(1)(B) as a “conviction for a felony drug trafficking
offense for which the sentence imposed was 13 months or
less,” if the sixteen-level enhancement had not applied.
Almazan-Becerra argues that neither conviction qualifies
for a drug trafficking enhancement. He also contends that the
fact of the prior convictions must be submitted to a jury and
found beyond a reasonable doubt.
II.
[1] To determine whether a prior conviction qualifies for an
enhancement, we apply the Taylor modified categorical
approach. See United States v. Navidad-Marcos, 367 F.3d
903, 908 (9th Cir. 2004); see also Taylor v. United States, 495
U.S. 575 (1990). Under this standard, “we must first analyze
the statute that formed the basis for the sentence enhance-
ment.” United States v. Rivera-Sanchez, 247 F.3d 905, 908
UNITED STATES v. ALMAZAN-BECERRA 3609
(9th Cir. 2001) (en banc). We have previously held that sec-
tions 11360(a) and 11379(a) of the California Health & Safety
Code are overbroad and do not categorically qualify for drug
trafficking enhancements. See Navidad-Marcos, 367 F.3d at
907-08 (Cal. Health & Safety Code § 11379(a) overbroad);
Rivera-Sanchez, 247 F.3d at 908-09 (Cal. Health & Safety
Code § 11360(a) overbroad).
Because a conviction under these statutes does not neces-
sarily qualify for the enhancement, we must look to the
“charging document, written plea agreement, transcript of
plea colloquy, and any explicit factual finding by the trial
judge to which the defendant assented” to determine if a prior
conviction qualifies for an enhancement. Shepard v. United
States, 544 U.S. 13, 16 (2005). “Taylor is clear that any
enquiry beyond statute and charging document must be nar-
rowly restricted to implement the object of the statute and
avoid evidentiary disputes.” Id. at 23 n.4.
“The idea of the modified categorical approach is to deter-
mine if the record unequivocally establishes that the defen-
dant was convicted of the generically defined crime, even if
the statute defining the crime is overly inclusive.” United
States v. Corona-Sanchez, 291 F.3d 1201, 1211 (9th Cir.
2002) (en banc). “Charging papers alone are never sufficient.”
Id.
III.
Almazan-Becerra contends that the district court abused its
discretion by basing the extent of its downward departure on
the erroneous legal assumption that the 1998 conviction mer-
ited the twelve-level enhancement. Ordinarily, we lack juris-
diction to review the extent of a downward departure. See
United States v. Vizcarra-Angulo, 904 F.2d 22, 23 (9th Cir.
1990). We have jurisdiction to consider Almazan-Becerra’s
argument, however, to the extent the departure was premised
on “an incorrect application of the sentencing guidelines.” 18
3610 UNITED STATES v. ALMAZAN-BECERRA
U.S.C. § 3742(a). We review the extent of a sentencing depar-
ture for an abuse of discretion. See United States v. Menywea-
ther, 431 F.3d 692, 701 (9th Cir. 2005), amended by 447 F.3d
625, 635 (9th Cir. 2006) (“Even before Booker, our task was
to determine whether the extent of a departure was reason-
able, so our cases applying abuse of discretion review to that
question remain relevant after Booker”). The district court “is
required to articulate the reasons for the extent of the depar-
ture in sufficiently specific language to allow appellate
review. On appeal we may not search the record for the possi-
ble reasons for departure; instead, we must rely solely on the
reasons expressed by the court below.” United States v. Work-
ing, 224 F.3d 1093, 1102 (9th Cir. 2000) (en banc) (internal
quotations and citations omitted). “A district court by defini-
tion abuses its discretion when it makes an error of law.”
Koon v. United States, 518 U.S. 81, 100 (1996).
Based on an unspecified “report,” the district court found
at sentencing that Almazan-Becerra’s 1998 conviction was for
transporting methamphetamine with intent to sell. In the dis-
trict court’s view, the finding supported the section
2L1.2(b)(1)(B) enhancement. On appeal, however, the gov-
ernment conceded that the 1998 conviction does not qualify
for the enhancement. See Transcript of Oral Argument at
12:05-13:30, United States v. Almazan-Becerra, No. 05-
10056 (Feb. 16, 2006). The government’s concession
reflected its understanding that a conviction for the transport
of a controlled substance under section 11379 did not trigger
the enhancement. See id.
[2] We have identified transportation of a controlled sub-
stance for personal use as outside the scope of the drug traf-
ficking enhancements. See Navidad-Marcos, 367 F.3d at 908;
Rivera-Sanchez, 247 F.3d at 908-09. A conviction for trans-
portation of a controlled substance with the intent to sell,
however, certainly qualifies for a section 2L1.2(b)(1)(B)
enhancement. Cf. United States v. Benitez-Perez, 367 F.3d
1200, 1204 (9th Cir. 2004) (holding that plain language of
UNITED STATES v. ALMAZAN-BECERRA 3611
section 2L1.2 “includes as a qualifying offense possession
with intent to distribute or dispense”); United States v.
Rodriguez-Lara, 421 F.3d 932, 949 (9th Cir. 2005) (affirming
enhancement under section 2L1.2(b)(1)(A) based on convic-
tion for the transport of methamphetamine).
[3] Nevertheless, the district court abused its discretion by
applying the twelve-level enhancement for Almazan-
Becerra’s 1998 conviction. At the plea colloquy in the 1998
case, the government withdrew the charge of “possession or
purchase [of a] controlled substance, methamphetamine, for
sale” and replaced it with the charge of “transport[ing] . . . a
controlled substance.” The parties have not suggested that any
other record evidence supported the conclusion that the 1998
conviction was for transporting methamphetamine with the
intent to sell. At resentencing, the district court may only
make a downward departure on the basis that the 1998 con-
viction qualifies for a section 2L1.2(b)(1)(B) enhancement if
the record “unequivocally establishes” that Almazan-Becerra
was convicted of either transporting methamphetamine with
the intent to sell or another offense covered by the section.
IV.
Almazan-Becerra next argues that the district court erred by
applying the sixteen-level enhancement for his 1995 convic-
tion. We review the district court’s conclusion that a prior
conviction qualifies for a sentencing enhancement de novo.
Rivera-Sanchez, 247 F.3d at 907.
A.
Almazan-Becerra contends that because the indictment and
plea colloquy were repeatedly stated in the disjunctive, they
do not “unequivocally establish” that he is guilty of conduct
that qualifies for the enhancement. See Corona-Sanchez, 291
F.3d at 1211. He argues that because he twice pleaded guilty
to “either transport[ing] or sell[ing] or offer[ing] to sell mari-
3612 UNITED STATES v. ALMAZAN-BECERRA
juana,” his guilty plea does not “unequivocally establish” that
he pleaded guilty to selling marijuana. The district court held
that these statements meant that he “pled guilty to all of
those.”
[4] We have previously held that “when a defendant pleads
guilty . . . to facts stated in the conjunctive, each factual alle-
gation is taken as true.” United States v. Smith, 390 F.3d 661,
665 (9th Cir. 2004) (internal quotations and citation omitted),
amended by 405 F.3d 726 (9th Cir. 2005), cert. denied, 126
S. Ct. 252 (2005). This appeal requires us to consider whether
the same is true in a disjunctive plea. Because Almazan-
Becerra pled to the disjunctive “either transport[ing] or sell-
[ing] or offer[ing] to sell marijuana,” he could have pled to
transporting marijuana for personal use, which does not qual-
ify for the enhancement. A plea to selling marijuana is only
one possible interpretation of these statements. We therefore
hold that this disjunctive guilty plea does not “unequivocally
establish” that Almazan-Becerra committed a drug trafficking
crime.
[5] Similarly, the use of the virgule (/) sign in the indict-
ment indicates that Almazan-Becerra was charged in the dis-
junctive. The indictment also uses a conjunctive statement,
that Almazan-Becerra “did sell and offer to sell a controlled
substance,” but as observed earlier, “[c]harging papers alone
are never sufficient.” Corona-Sanchez, 291 F.3d 1201 at
1211. Instead, charging papers may be considered only “in
connection with . . . the transcript of [the] plea proceeding.”
Id. Given the two immediately preceding uses of the disjunc-
tive in the indictment, and given the persistent use of the dis-
junctive throughout the plea proceeding, it is not
unequivocally clear that Almazan-Becerra’s plea necessarily
rested on the conjunctive part of the indictment. Thus, the
plea colloquy and indictment cannot support application of
the enhancement to Almazan-Becerra.
The government tried to save the enhancement at oral argu-
ment by pointing to the statement of Almazan-Becerra’s
UNITED STATES v. ALMAZAN-BECERRA 3613
counsel suggesting that the charged conduct involved sales.
We will not permit the government to rely on this statement
in support of its argument because the government failed to
cite the statement in its opening brief, see Smith v. Marsh, 194
F.3d 1045, 1052 (9th Cir. 1999) (“[O]n appeal, arguments not
raised by a party in its opening brief are deemed waived”),
and because the government did not cite the statement to the
district court, see Monetary II Ltd. P’ship v. Comm’r, 47 F.3d
342, 347 (9th Cir. 1995) (“As a general rule, an appellate
court will not consider arguments which were not first raised
before the district court, absent a showing of exceptional cir-
cumstances”) (internal quotations and citation omitted).
B.
The government argues that police reports concerning the
1995 conviction could serve as a valid basis for applying the
enhancement. The district court chose not to reach this issue.
[6] The Supreme Court appears to have foreclosed the use
of police reports in a Taylor analysis. See Shepard, 544 U.S.
at 16 (“The question here is whether a sentencing court can
look to police reports or complaint applications . . . . We hold
that it may not”). In a post-Shepard case, however, we held
that when a defendant stipulates to a document as providing
a factual basis for a guilty plea, the court may sometimes use
the factual statements therein to determine whether a prior
conviction qualifies for an enhancement. See United States v.
Hernandez-Hernandez, 431 F.3d 1212, 1217-19 (9th Cir.
2005). In that case, the defendant stipulated that his own prior
motion authored and filed by his attorney, which contained a
statement of facts admitting to the relevant conduct, formed
a factual basis to support his guilty plea. See id. at 1215-16.
We observed “no appreciable difference between allowing the
district court to rely on the stipulated . . . [m]otion which
served as the factual basis for the plea and allowing prior sen-
tencing courts to rely on a plea agreement or the transcript of
a plea colloquy.” Id. at 1218.
3614 UNITED STATES v. ALMAZAN-BECERRA
[7] Two important factors are different between the present
appeal and Hernandez-Hernandez. First, although Almazan-
Becerra stipulated that the police reports formed a factual
basis to support his plea, the plea was disjunctive. He there-
fore could have been stipulating that the police reports sup-
ported a plea to transporting marijuana for personal use. As
such, the stipulation does not “unequivocally establish” a fac-
tual basis for a section 2L1.2(b)(1)(A) enhancement.
[8] Second, the stipulated document in Hernandez-
Hernandez was the defendant’s own motion, containing his
attorney’s account of disputed facts. We therefore reasoned
that it was the equivalent to a plea agreement or plea collo-
quy. Id. at 1218. The police reports here, however, do not nec-
essarily contain either the defendant’s own account of the
events or a mutually agreed-upon statement of facts. There-
fore, the police reports are not the functional equivalent of
either a plea agreement or plea colloquy.
If the government on remand continues to assert that the
police reports, which Almazan-Becerra’s counsel stipulated
constituted a factual basis for his disjunctive plea, support
application of the enhancement, the district court will need to
determine in the first instance whether this case can be distin-
guished from Shepard.
V.
Almazan-Becerra also argues that because a majority of
Justices now appear to believe that Almendarez-Torres v.
United States, 523 U.S. 224 (1998), was wrongly decided, see
Shepard, 544 U.S. at 27-28, (Thomas, J., concurring)
(expressing the view that “a majority of the Court now recog-
nizes that Almendarez-Torres was wrongly decided”);
Almendarez-Torres, 523 U.S. at 248-49 (Scalia, J., joined by
Stevens, Souter, and Ginsburg, JJ., dissenting), we should
hold that the fact of a prior conviction must be submitted to
a jury and proved beyond a reasonable doubt. However, we
UNITED STATES v. ALMAZAN-BECERRA 3615
have expressly considered and rejected the argument. See
United States v. Weiland, 420 F.3d 1062, 1080 n.16 (9th Cir.
2005) (“Although recent Supreme Court jurisprudence has
perhaps called into question the continuing viability of
Almendarez-Torres, we are bound to follow a controlling
Supreme Court precedent until it is explicitly overruled by
that Court”) (citation omitted). Thus, this argument is fore-
closed.
SENTENCE VACATED AND REMANDED.