United States v. Almazan-Becerra ( 2008 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 07-10420
Plaintiff-Appellee,
v.  D.C. No.
CR-03-40212-DLJ
JULIO ALMAZAN-BECERRA,
OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the Northern District of California
D. Lowell Jensen, District Judge, Presiding
Argued and Submitted
June 10, 2008—San Francisco, California
Filed August 12, 2008
Before: Mary M. Schroeder and N. Randy Smith,
Circuit Judges, and Valerie Baker Fairbank,* District Judge.
Opinion by Judge N. R. Smith
*The Honorable Valerie Baker Fairbank, United States District Judge
for the Central District of California, sitting by designation.
10475
10478 UNITED STATES v. ALMAZAN-BECERRA
COUNSEL
Amitai Schwartz, Emeryville, California, for defendant-
appellant Julio Almazan-Becerra.
Barbara J. Valliere, Assistant United States Attorney, San
Francisco, California, for plaintiff-appellee United States of
America.
UNITED STATES v. ALMAZAN-BECERRA 10479
OPINION
N. RANDY SMITH, Circuit Judge:
The district court properly applied the modified categorical
approach set forth in Taylor v. United States, 495 U.S. 575
(1990), when it concluded that Julio Almazan-Becerra’s prior
conviction under California Health and Safety Code
§ 11360(a) was a “drug trafficking offense.” The district court
properly relied on police reports (which Almazan-Becerra,
during the plea colloquy of the prior conviction, had stipu-
lated contained a factual basis for his plea) in concluding that
Almazan-Becerra was previously convicted of selling mari-
juana. The prior conviction thus warranted an offense-level
enhancement under United States Sentencing Guidelines
§ 2L1.2(b)(1)(A)(i). We also hold that Almazan-Becerra’s
sentence is reasonable. We have jurisdiction under 28 U.S.C.
§ 1291. We affirm.
I.
Almazan-Becerra, a Mexican national, was convicted of
illegal reentry into the United States in violation of 8 U.S.C.
§ 1326. At his initial sentencing, the district court, in deter-
mining Almazan-Becerra’s offense level under the Sentencing
Guidelines, applied a 16-level enhancement on the ground
that Almazan-Becerra’s prior conviction under California
Health and Safety Code § 11360(a) qualified as a drug traf-
ficking offense under U.S.S.G. § 2L1.2(b)(1)(A)(i). In deter-
mining that the prior conviction was a drug trafficking
offense, the district court relied only on the complaint1 and
plea colloquy pertaining to the conviction, not on the police
1
Although our previous opinion inadvertently referred to the charging
document for Almazan-Becerra’s prior conviction under California Health
and Safety Code § 11360(a) as an indictment, see United States v.
Almazan-Becerra, 482 F.3d 1085, 1087 (9th Cir. 2007), the charging doc-
ument was a felony complaint.
10480 UNITED STATES v. ALMAZAN-BECERRA
reports at issue here. The district court sentenced Almazan-
Becerra to 70 months imprisonment, and Almazan-Becerra
appealed. A prior panel of this court vacated the sentence on
several grounds, including that the complaint and plea collo-
quy alone did not warrant the 16-level enhancement. United
States v. Almazan-Becerra, 482 F.3d 1085, 1090 (9th Cir.
2007) (“Almazan-Becerra I”).
On remand for resentencing, the district court again applied
the 16-level enhancement, but this time it did rely on the
police reports relating to the prior conviction. The court then
applied a six-level downward departure in light of the rela-
tively minor nature of the offense underlying the prior convic-
tion. After calculating a sentencing range of 57 to 71 months,
the court sentenced Almazan-Becerra to 57 months imprison-
ment. Almazan-Becerra now again appeals his sentence.
The relevant facts concerning the prior conviction are as
follows. The complaint twice charged Almazan-Becerra with
committing “the crime of TRANSPORT/SELL/OFFER TO
SELL MARIJUANA” in violation of § 11360(a). The com-
plaint also stated that Almazan-Becerra “did sell and offer to
sell a controlled substance, to wit: Marijuana.” Almazan-
Becerra decided to plead guilty to both counts in the com-
plaint. At the plea colloquy in the California state court, he
twice answered “guilty” to the charge that he “did either
transport or sell or offer to sell marijuana.” Almazan-
Becerra’s counsel then stipulated that “the police reports and
other documents within the Court file contain a factual basis
for the pleas.”
In an affidavit, a federal probation officer explains that, in
order to prepare a Pre-Sentence Investigation Report for the
district court in the present case, he requested (from the Cali-
fornia state court) a copy of the documents contained in the
court file pertaining to Almazan-Becerra’s prior conviction.
The documents provided to the probation officer include a set
of police reports charging Almazan-Becerra with two hand-
UNITED STATES v. ALMAZAN-BECERRA 10481
to-hand sales of marijuana. The reports describe how (1)
Almazan-Becerra was observed twice handing each of two
individuals a brown paper bindle in exchange for a money
bill; (2) the two individuals were later apprehended, were
found to have in their possession a brown paper bindle con-
taining marijuana, and positively identified Almazan-Becerra
as the person who had sold them the marijuana; (3) Almazan-
Becerra was then apprehended and was found to have in his
possession two money bills whose denominations were con-
sistent with the account of the sales by the two apprehended
buyers; and (4) a bindle of marijuana was found on the
ground where Almazan-Becerra had previously been walking.
The police reports all list the type of offense as “sales of mari-
juana.”
II.
[1] It is undisputed that a conviction under California
Health and Safety Code § 11360(a) does not categorically
constitute a drug trafficking offense under the Sentencing
Guidelines; for example, transporting marijuana for personal
use, which is an offense under § 11360(a), is not a drug traf-
ficking offense. See Almazan-Becerra I, 482 F.3d at 1088; see
also United States v. Rivera-Sanchez, 247 F.3d 905, 908-09
(9th Cir. 2001) (en banc) (holding that conviction under
§ 11360(a) is not categorically an aggravated felony for pur-
poses of U.S.S.G. § 2L1.2(b)(1)(A)).
[2] Accordingly, to determine whether a particular convic-
tion under § 11360(a) qualifies as a drug trafficking offense,
we apply the Taylor modified categorical approach. See
Sandoval-Lua v. Gonzales, 499 F.3d 1121, 1129-31 (9th Cir.
2007). “[U]nder the modified categorical approach, we may
consider a limited number of judicially noticeable documents
to determine whether, although the statute of conviction is
overinclusive, the defendant was in fact convicted” of the
generically defined crime. Id. at 1129 (internal quotations
omitted).
10482 UNITED STATES v. ALMAZAN-BECERRA
III.
A.
Almazan-Becerra argues that the district court was barred
from relying on the police reports under the law of the case
doctrine. We disagree.
[3] “Under the law of the case doctrine, a court is generally
precluded from reconsidering an issue that has already been
decided by the same court, or a higher court in the identical
case.” United States v. Alexander, 106 F.3d 874, 876 (9th Cir.
1997) (internal quotations omitted).
In Almazan-Becerra I, the panel held that the plea colloquy
and complaint alone could not support the 16-level enhance-
ment. 482 F.3d at 1090. The panel reasoned that Almazan-
Becerra’s disjunctive plea to “either transport[ing] or sell[ing]
or offer[ing] to sell marijuana,” as well as the complaint’s use
of the virgule (/) sign in charging Almazan-Becerra with “the
crime of TRANSPORT/SELL/OFFER TO SELL MARIJUA-
NA,” did not leave it unequivocally clear that Almazan-
Becerra had been convicted of a drug trafficking offense. Id.
at 1087, 1089-90.
However, after acknowledging that the district court had
chosen not to reach the issue of whether the police reports
relating to the prior conviction could serve as a valid basis for
applying the enhancement, the panel also declined to reach a
conclusion on that issue. See id. at 1090-91. The panel noted
that the issue was governed by the Supreme Court’s decision
in Shepard v. United States, 544 U.S. 13 (2005), and impli-
cated this court’s decision in United States v. Hernandez-
Hernandez, 431 F.3d 1212 (9th Cir. 2005). See Almazan-
Becerra I, 482 F.3d at 1090-91. The panel therefore remanded
the case so that the district court could address the issue in the
first instance. See id. at 1091 (“If the government on remand
continues to assert that the police reports, which Almazan-
UNITED STATES v. ALMAZAN-BECERRA 10483
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 distinguished from Shepard.”).
[4] Thus, in Almazan-Becerra I the panel did not decide
whether the police reports could support the enhancement.
Accordingly, the law of the case doctrine does not preclude
us from deciding that issue here.
B.
Almazan-Becerra argues that Shepard precluded the district
court from relying on the police reports in determining that
his prior conviction was a drug trafficking offense. We dis-
agree. We review de novo a district court’s conclusion that a
prior conviction qualifies for a sentencing enhancement.
Almazan-Becerra I, 482 F.3d at 1089.
[5] In Shepard, the Supreme Court made clear that in
applying the Taylor modified categorical approach to a prior
conviction resulting from a guilty plea, a sentencing court
may generally look only 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 whether the prior conviction qualifies
for an enhancement. 544 U.S. at 16. The Court specifically
pointed out, however, that a sentencing court may look to “the
statement of factual basis for the charge . . . shown by a tran-
script of plea colloquy or by written plea agreement presented
to the court.” Id. at 20. While the Court held that a sentencing
court may not look to police reports in determining whether
a prior conviction qualifies for an enhancement, id. at 16, the
defendant in Shepard, unlike Almazan-Becerra, had not stipu-
lated during the plea colloquy that the police reports con-
tained a factual basis for his guilty plea, id. at 18. The Court
did not address whether a sentencing court may look to a
10484 UNITED STATES v. ALMAZAN-BECERRA
police report that the defendant has stipulated contains a fac-
tual basis for his plea.
In United States v. Espinoza-Cano, 456 F.3d 1126 (9th Cir.
2006), this court held that Shepard did not preclude a sentenc-
ing court from looking to a police report that had been incor-
porated by reference into the criminal complaint underlying a
prior conviction, and which defense counsel had stipulated
contained a factual basis for the defendant’s guilty plea. See
id. at 1128-29, 1132-33. Likewise, in Parrilla v. Gonzales,
414 F.3d 1038 (9th Cir. 2005), we held that Shepard did not
preclude a court from looking to a Certification for Determi-
nation of Probable Cause (CDPC) where the information
incorporated the CDPC and where the petitioner had stated in
his guilty plea that he understood the court would review the
CDPC in determining whether there was a factual basis for his
plea. See id. at 1043-44.
[6] While the police reports in this case were not incorpo-
rated by reference into the complaint, Almazan-Becerra’s
counsel did stipulate during the plea colloquy that the police
reports contained a factual basis for Almazan-Becerra’s guilty
pleas. In at least one case we have found such a stipulation
alone to be sufficient under Shepard. In Hernandez-
Hernandez, this court held that the sentencing court had prop-
erly looked to the defendant’s motion to set aside false impris-
onment charges against him where, during the change of plea
hearing on those charges, the defendant’s attorney had stipu-
lated to the contents of the motion as the factual basis for the
plea. 431 F.3d at 1215, 1218-20. We explained that Shepard
did not preclude the sentencing court from looking to the
motion to determine whether the defendant’s prior conviction
constituted a predicate offense:
We see no appreciable difference between allowing
the district court to rely on the stipulated [motion]
which served as the factual basis for the plea and
allowing prior sentencing courts to rely on a plea
UNITED STATES v. ALMAZAN-BECERRA 10485
agreement or the transcript of a plea colloquy.
Indeed, this document serves as the “findings of fact
adopted by the defendant upon entering the plea,”
which is part of the judicial record on which the
Supreme Court agrees later courts may rely.
Id. at 1218 (citing Shepard, 544 U.S. at 20).
[7] While Hernandez-Hernandez involved the defendant’s
own motion rather than police reports, we are not persuaded
that this difference is material. In Espinoza-Cano, we con-
cluded that, as a result of the stipulation to the factual basis,
the police report “became a ‘mutually agreed-upon statement
of facts.’ ” 456 F.3d at 1133 (citation omitted). While the
panel in Almazan-Becerra I commented that the police reports
“do not necessarily contain either the defendant’s own
account of the events or a mutually agreed-upon statement of
facts,” 482 F.3d at 1091, we conclude that, as in Espinoza-
Cano, the police reports here became a mutually-agreed upon
statement of facts when Almazan-Becerra stipulated that they
contained a factual basis for his plea. Almazan-Becerra’s stip-
ulation (that the police reports contained a factual basis for his
plea) incorporated the police reports into the plea colloquy,
and were thus properly relied upon by the district court. See
Parrilla, 414 F.3d at 1044 (concluding that petitioner “explic-
itly incorporat[ed] the CDPC into his guilty plea” by stating
that he understood that the court would review the CDPC in
determining whether there was a factual basis for his plea).
Almazan-Becerra nevertheless argues that the district
court’s reliance on the police reports was improper because he
had stipulated only that “the police reports and other docu-
ments within the Court file” contained a factual basis for the
plea, without identifying specifically which police reports
contained the factual basis.
[8] The Fifth Circuit rejected a similar argument in United
States v. Castillo-Morales, 507 F.3d 873 (5th Cir. 2007),
10486 UNITED STATES v. ALMAZAN-BECERRA
where the defendant had stipulated to a factual basis for a bur-
glary offense based on “documents in the court file, including
the complaint affidavit(s).” Id. at 875 (internal quotations
omitted). The defendant in that case argued that the district
court could not rely on a statement in a charging affidavit
contained in the court file to determine that he had been con-
victed of a predicate offense, because the factual basis to
which he had assented could have been in one of the other
documents in the court file. Id. at 875-76. The Fifth Circuit
rejected this argument:
Essentially, [the defendant] asks this court to craft a
new rule requiring that when a defendant stipulates
that “a factual basis” for his offense is found in
“court documents,” the specific facts assented to by
the defendant, or the specific document that served
as the factual basis for the plea, must be exactly
identified in the record. Otherwise, the sentencing
court cannot properly ascertain whether the plea and
conviction “necessarily rested on the fact identifying
the burglary as generic.” But, we conclude, the
Supreme Court’s opinion in Shepard requires no
such rule.
Id. at 876. The court reasoned that because the factual basis
in the charging affidavit was not contradicted by any other
facts in the court file, there was no need for the type of evi-
dentiary hearing—“to sort out what offense [the defendant]
actually committed”—that the modified categorical approach
was meant to avoid. Id. at 876 & n.2 (citing Shepard, 544
U.S. at 20). Accordingly, the court held that “when a defen-
dant stipulates that ‘a factual basis’ for his plea is present in
‘court documents,’ courts may use any uncontradicted facts in
those documents to establish an element of a prior convic-
tion.” Id. at 876.
[9] We find the reasoning in Castillo-Morales persuasive.
Based on the affidavit by the probation officer, we are confi-
UNITED STATES v. ALMAZAN-BECERRA 10487
dent that the police reports obtained from the California state
court are the only police reports in that court’s file. In addi-
tion, the police reports unequivocally describe Almazan-
Becerra’s offensive conduct as selling marijuana, and there is
no indication that any other documents in the court file con-
tradict that description.2 In fact, the complaint is consistent
with the police reports, as it states that Almazan-Becerra “did
sell and offer to sell a controlled substance, to wit: Marijua-
na.” Accordingly, we conclude that the district court properly
relied on the police reports (as incorporated into the plea col-
loquy) in determining that Almazan-Becerra’s prior convic-
tion was a drug trafficking offense for purposes of the
Sentencing Guidelines.
In so concluding, we reject Almazan-Becerra’s argument
that his disjunctive plea compels a different outcome. In
Almazan-Becerra I, the panel commented that Almazan-
Becerra’s guilty plea did not unequivocally establish a factual
basis for the enhancement, because Almazan-Becerra “could
have been stipulating that the police reports supported a plea
to transporting marijuana for personal use.” 482 F.3d at 1091.
But the panel in Almazan-Becerra I did not look to the police
reports themselves, which rule out that Almazan-Becerra was
stipulating to a factual basis for anything other than selling
marijuana. The police reports do not indicate any other docu-
ments in the court file that would contradict that offense.
Accordingly, the record is “enough to prove” that Almazan-
Becerra was “convicted of conduct which constituted [a drug
trafficking offense] for purposes of the modified categorical
analysis.” Sandoval-Lua, 499 F.3d at 1132.
2
Almazan-Becerra contends that the police reports also describe the
offense of transporting marijuana for personal use because the reports state
that the police found a bindle of marijuana on the ground where Almazan-
Becerra had previously been walking. We reject this contention because
the reports, when read as a whole, describe only one type of offense—
selling marijuana. The bindle found on the ground was simply one of sev-
eral pieces of evidence of that offense.
10488 UNITED STATES v. ALMAZAN-BECERRA
[10] In sum, we conclude that the district court properly
relied on the police reports contained in the state court file to
determine that Almazan-Becerra’s prior conviction was for
selling marijuana, and thus constituted a drug trafficking
offense for purposes of the Sentencing Guidelines. Accord-
ingly, the district court properly applied the 16-level enhance-
ment pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(i).
IV.
Almazan-Becerra also argues that his sentence of 57
months imprisonment is unreasonable. We disagree. We
review for an abuse of discretion the reasonableness of the
district court’s sentencing decision. Gall v. United States, 128
S. Ct. 586, 594 (2007); see also United States v. Carty, 520
F.3d 984, 993 (9th Cir. 2008) (en banc).
[11] Almazan-Becerra’s argument is based solely on his
contention that the district court erred in applying the 16-level
enhancement. However, we have already rejected that conten-
tion. We find no other basis for concluding that the sentence
was unreasonable. The district court lowered Almazan-
Becerra’s offense level by six on the ground that the two
hand-to-hand sales of marijuana underlying the prior convic-
tion were too minor a crime to warrant a 16-level enhance-
ment. As a result, the district court arrived at a sentencing
range of 57 to 71 months instead of a range of 100 to 125
months. The court then sentenced Almazan-Becerra at the low
end of the range. Almazan-Becerra points to “nothing unusual
about [his] circumstances to compel a lower sentence than the
low-end of the Guidelines range.” Carty, 520 F.3d at 996.
We conclude that the sentence is reasonable and that the
district court did not abuse its discretion in imposing it.
V.
For the foregoing reasons, we affirm Almazan-Becerra’s
sentence.
AFFIRMED.