United States v. Felix ( 2009 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 07-50173
Plaintiff-Appellee,
v.  D.C. No.
06CR1610-MJL
JOE RAYMOND FELIX,
OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the Southern District of California
M. James Lorenz, District Judge, Presiding
Argued and Submitted
February 6, 2009—Pasadena, California
Filed April 13, 2009
Before: Cynthia Holcomb Hall, Barry G. Silverman and
Consuelo M. Callahan, Circuit Judges.
Opinion by Judge Callahan
4225
4228 UNITED STATES v. FELIX
COUNSEL
Benjamin P. Lechman (argued), of San Diego, California, for
the defendant-appellant.
UNITED STATES v. FELIX 4229
Davene L. Finnel (argued), Karen P. Hewitt, and Bruce R.
Castetter of San Diego, California, for the plaintiff-appellee
(U.S. Government).
OPINION
CALLAHAN, Circuit Judge:
Joe Raymond Felix appeals his sentence from a drug con-
viction. He objects to the district court’s consideration of a
second misdemeanor conviction, which disqualified him from
eligibility for a safety valve sentence, and resulted in a man-
datory minimum sentence. First, Felix argues that the district
court improperly relied on a computer printout in calculating
his criminal history points. Second, he argues that the district
court wrongly placed the burden of proof on him to demon-
strate that his prior conviction was diverted. Third, he argues
that the district court violated the Supreme Court’s decision
in Shepard v. United States, 544 U.S. 13 (2005), by engaging
in fact-finding regarding a prior conviction. Finally, he argues
that because the alleged prior conviction had a disproportion-
ate impact on his sentence, the district court should have
applied a clear and convincing standard of proof. We have
jurisdiction to review the district court’s order under 28
U.S.C. § 1291. We reject the government’s assertion that
Felix has waived his right to appeal, but affirm the sentence
because none of Felix’s challenges to his sentence is persua-
sive.
I. BACKGROUND
On June 14, 2006, Joe Raymond Felix (“Felix”) entered the
United States from Mexico as the driver and sole occupant of
a car registered in California. Felix and the vehicle were
escorted to the secondary inspection area where officers dis-
covered and removed five cellophane-wrapped packages con-
4230 UNITED STATES v. FELIX
taining 13.46 kilograms of methamphetamine of 98 percent
purity.
Felix was charged with one count of importation of
methamphetamine in violation of 21 U.S.C. §§ 952 and 960.
Felix pleaded guilty to the charged offense. A Presentence
Report (“PSR”) was prepared, which assessed two criminal
history points based on Felix’s two prior convictions. The first
criminal history point was based on a 1999 misdemeanor con-
viction in Pima County, Arizona, for “Assault, Knowingly
Causing Injury (misd),” in violation of ARS § 13-1203. The
second criminal history point was based on a 2001 state con-
viction for an “Attempted Unlawful Transportation of Mari-
juana for Sale.”1 These two criminal history points placed
Felix in criminal history category II, rendering him ineligible
for the benefit of the safety valve provision under United
States Sentencing Guidelines (“U.S.S.G.”) § 5C1.2(a)(1).2
At his initial sentencing hearing, Felix objected to the crim-
inal history point based on the misdemeanor conviction in
Pima County, contending that the case was dismissed pursu-
ant to a diversion program. The probation officer, however,
testified that based on a computer printout, it appeared that
Felix had pleaded guilty to the charge and that probation was
granted. In an addendum to the PSR, the probation officer
reported that his multiple communications with the Pima
County records department confirmed that Felix was not
granted diversion in this case. Felix did not offer any evidence
to support his claim that the case was diverted.
Felix objected to the computer printouts as being improper
evidence for the purpose of determining his criminal history
1
Felix does not challenge his marijuana conviction.
2
The safety valve provision under 18 U.S.C. § 3553(f) and USSG
§ 5C1.2(a)(1) limits the applicability of the statutory minimum sentence in
certain cases. In order to be eligible for safety valve, a defendant, among
other requirements, cannot have more than 1 criminal history point.
UNITED STATES v. FELIX 4231
category. In the addendum to the PSR, the probation officer
responded that the original court file of Felix’s misdemeanor
conviction had been destroyed, but that Pima County’s com-
puter records were provided, and they confirmed Felix’s mis-
demeanor conviction.
Applying the applicable sentencing guidelines, the district
court reduced Felix’s offense level to 29, which at a criminal
history level two, resulted in a guideline sentence range of 97
to 121 months. If Felix had only one instead of two criminal
history points, he would be eligible for the safety valve provi-
sion set forth in 18 U.S.C. § 3553(f), which under the plea
agreement would have resulted in an offense level of 25, with
a sentence range of 57 to 71 months. However, absent eligi-
bility for the safety valve sentence, 21 U.S.C. § 960(b)(1), and
U.S.S.G. § 2D1.1 provided for a mandatory minimum sen-
tence of 120 months. The district court determined that the
government had adequately proved Felix’s Arizona misde-
meanor conviction, and that Felix therefore was not eligible
for a safety valve sentence. The court determined that it was
required to impose the mandatory minimum sentence of 120
months and did so.
II. STANDARD OF REVIEW
We review de novo the validity of a waiver of appellate
rights. United States v. Buchanan, 59 F.3d 914, 916 (9th Cir.
1995). We review de novo whether a prior conviction is
counted under the Sentencing Guidelines. United States v.
Newman, 912 F.2d 1119, 1123 (9th Cir. 1990). Whether a
prior conviction qualifies for inclusion in a criminal history
category calculations is reviewed for clear error. United States
v. Marin-Cuevas, 147 F.3d 889, 895 (9th Cir. 1998). We
review a district court’s determination of the reliability of evi-
dence used at sentencing for an abuse of discretion. Id. (citing
United States v. Pinto, 48 F.3d 384, 389 (9th Cir. 1995)). We
review de novo a district court’s interpretation of the Sentenc-
ing Guidelines. United States v. Zolp, 479 F.3d 715, 718 (9th
4232 UNITED STATES v. FELIX
Cir. 2007). Finally, we review the district court’s application
of the guidelines to the facts of this case for abuse of discre-
tion and the district court’s factual findings for clear error. Id.III. FELIX DID NOT WAIVE HIS RIGHT TO
APPEAL
We initially address the government’s argument that Felix
knowingly and voluntarily waived his right to appeal in the
plea agreement.3 Section 11 of the plea agreement provided
that “[i]n exchange for the Government’s concessions in this
plea agreement, defendant waives, to the full extent of the
law, any right to appeal or to collaterally attack the conviction
and sentence, including any restitution order.”4
The government asserted that Felix should be bound by his
agreement because he had read the plea agreement, discussed
its terms with his attorney, initialed each page of the plea
agreement, and signed the last page. The government further
noted that at the time of the guilty plea, the magistrate
apprised Felix that by agreeing to the plea agreement, he
would be waiving his right to appeal, even if the court
imposed the mandatory minimum term and that Felix stated
that he understood.
[1] Generally, a defendant who enters into such a plea
agreement waives his right to appeal. United States v. Lopez-
Armenta, 400 F.3d 1173, 1175 (9th Cir. 2005); see also
United States v. Anglin, 215 F.3d 1064, 1066 (9th Cir. 2000).
However, the government can waive its waiver argument,
explicitly or implicitly. United States v. Garcia-Lopez, 309
F.3d 1121, 1122-23 (9th Cir. 2002).
3
Although the government conceded this waiver claim during oral argu-
ment, we address the issue to reinforce the need for the government to
assert a defendant’s waiver throughout the sentencing process.
4
The waiver was conditional on Felix receiving a sentence that was not
“greater than the high end of the guideline range (or statutory mandatory
minimum term, if applicable).” Felix’s sentence met this condition.
UNITED STATES v. FELIX 4233
[2] In Buchanan, the defendant knowingly and voluntarily
entered into a plea agreement which included a waiver of his
right to appeal. 59 F.3d at 917. However, during two subse-
quent sentencing hearings, the district judge stated that the
defendant had the right to appeal his sentence. Id. The govern-
ment did not object to the district judge’s statements. Id. at
918. We noted that because of the district judge’s statement,
Buchanan could have had a reasonable expectation that he
could appeal his sentence. Id. We concluded that the wavier
was unenforceable because the district judge had informed the
defendant of his right to appeal. Id. Indeed, such a waiver of
the right to appeal will only be enforced if the government
immediately objects to the court’s advisement of a right to
appeal and the sentencing judge acknowledges the presence of
the waiver. See United States v. Zink, 107 F.3d 716, 718 (9th
Cir. 1997) (concluding defendant did not waive his right to
appeal sentence, in part because the government did not
object to the district court’s advisement that defendant had the
right to appeal).
[3] Here, the government waived its waiver argument
because the sentencing judge on two occasions told Felix that
he could appeal his sentence and the government failed to
object.5 On both occasions, the district judge indicated that
5
During Felix’s sentencing hearing, the following exchange took place:
The Court: Are the appeal rights waived on this?
Counsel for Felix: The appeal rights would be waived to the
underlying conviction, but I believe he would be allowed to
appeal the sentence.
The Court: All right.
The government did not interpose any objection to the district court’s
statement. Later, near the conclusion of Felix’s sentencing hearing, a sec-
ond exchange took place:
The Court: And are the appeal rights waived except for, I guess,
the issue of Criminal History Category; is that right?
Counsel for Felix: Yes, your Honor.
4234 UNITED STATES v. FELIX
Felix retained his right to appeal his sentence. The judge fur-
ther stated that should the case come back after appeal, he
would give it prompt consideration.
We conclude that the facts in this case are similar to those
in Buchanan and that the government therefore waived its
argument that Felix had waived his right to appeal. See e.g.,
Buchanan, 59 F.3d at 918; Zink, 107 F.3d at 718.
IV. GOVERNMENT PRESENTED ADEQUATE
EVIDENCE OF FELIX’S MISDEMEANOR
CONVICTION
Felix raises four arguments on appeal against the district
court’s consideration of his misdemeanor conviction.6
The Court: Thank you.
Government: Thank you, your Honor.
The Court: You’re welcome.
6
Felix additionally contends that the district court failed to make find-
ings as to his objections as required by Fed. R. Crim. Proc. 32(c)(1). Our
review of the record reveals that the district court did make findings in
response to Felix’s objections. At the sentencing hearing, the district court
acknowledged Felix’s objection, stating: “I want to deal with the issue
regarding criminal history category because that is the objection that you
have made.” After discussing the burden of proof, the district court noted
that Felix had not presented any evidence to support his contention that the
prior misdemeanor conviction was dismissed pursuant to a diversion pro-
gram. The district court later stated that the government’s evidence was
“reliable and sufficient to sustain the prior conviction by a preponderance
of the evidence.” In any event, the district court was not required to make
specific findings because Felix did not contest the information in the PSR
or offer any evidence to contradict the PSR; rather, he contested the infor-
mation in the computer printout presented by the probation officer. See
United States v. Charlesworth, 217 F.3d 1155, 1160 (9th Cir. 2000) (deter-
mining that the district court did not need to make specific findings
because the defendant “did not contest any of the information in the
PSR.”).
UNITED STATES v. FELIX 4235
A. District court properly relied on the computer
printout.
First, Felix contends that the district court erred in assign-
ing a criminal-history point for the prior misdemeanor convic-
tion because the computer printout was improper evidence for
that purpose. Specifically, Felix argues that the computer
printout is unreliable, noting that the Pima County website
states that its contents do “not constitute the official record of
the Court”; that “[t]he information provided may be subject to
errors or omissions”; and that the “Pima County Justice Court
cannot warrant the accuracy.”
[4] The Sentencing Guidelines provide that “[i]n determin-
ing the relevant facts, sentencing judges are not restricted to
information that would be admissible at trial,” and that a court
may consider any information, “so long as it has sufficient
indicia of reliability to support its probable accuracy.”
U.S.S.G. § 6A1.3, Cmt. (citing United States v. Watts, 519
U.S. 148, 154, 157 (1997)). Moreover, “[a] sentencing judge
may consider a wide variety of information which would not
be considered admissible at trial.” United States v. Sustaita,
1 F.3d 950, 952 (9th Cir. 1993) (citation and internal quota-
tion marks omitted). Also, a court may consider a document’s
hearsay information. See United States v. Charlesworth, 217
F.3d 1155, 1160 (9th Cir. 2000) (holding that district court
did not err when it relied on the PSR’s hearsay information
in sentencing the defendant).
[5] In United States v. Marin-Cuevas, 147 F.3d 889 (9th
Cir. 1998), we held that a district court could rely on a county
court’s computer printout records to assign criminal history
points for prior sentences. There, Marin-Cuevas contended
that the district court erred in assigning criminal history points
for prior sentences because the only evidence considered by
the judge was the probation officer’s attestation based on
computer records the officer had read but had not provided to
the court. Id. at 891, 894. The probation officer explained that
4236 UNITED STATES v. FELIX
the official records had been purged due to their age. Id. at
894. We determined that the PSR was sufficiently reliable
because “the probation officer who prepared Marin-Cuevas’s
[PSR] obtained his information from a reliable source[,] the
computerized criminal history[,] and had no reason to prevari-
cate.” Id. at 895 (noting also that the probation officer’s attes-
tation bore “sufficient indicia of reliability”); see also United
States v. Romero-Rendon, 220 F.3d 1159, 1163 (9th Cir.
2000) (affirming district court’s sentence which relied solely
on the PSR prepared by the officer, because there was “no
discernable reason why the officer who prepared the PSR
should be dishonest,” especially considering that the listed
sources in the probation officer’s report were all “state and
federal government agencies”); Charlesworth, 217 F.3d at
1160-61 (concluding the information in the PSR was suffi-
cient because defendant never offered any evidence to contra-
dict the PSR, arguing instead “that the government failed to
sustain its burden of proof”).
[6] There was more information and evidence before the
district court supporting Felix’s prior conviction than was pre-
sented to support the prior conviction of Marin-Cuevas.
There, the court was never provided with the computerized
criminal history records. Marin-Cuevas, 147 F.3d at 891, 894.
Here, the probation officer provided the district court with
Felix’s computerized criminal history record from Pima
County and stated that he had communicated with the Pima
County records department, confirming both the information
in the PSR regarding Felix’s prior misdemeanor conviction,
and that Felix’s case had not been diverted or dismissed.
[7] As in Marin-Cuevas and Romero-Rendon, here there is
no “discernable reason” to question the probation officer’s
honesty, and the sources relied on by the probation officer are
equally trustworthy. The probation officer stated in the PSR
that he conducted “a search of automated federal, state, and
local records,” that he also made collateral contact with the
UNITED STATES v. FELIX 4237
U.S. Probation Office in the District of Arizona, and the Pima
County Court records department.
[8] In addition, like the defendants in Marin-Cuevas and
Charlesworth, Felix offered no evidence to contradict the
PSR but only argued that the government failed to sustain its
burden of proof. See Charlesworth, 217 F.3d at 1160-61;
Marin-Cuevas, 147 F.3d at 895. We conclude that the district
court did not err when it relied on the PSR, the Pima County
criminal history computer printout, and the probation officer’s
statements in determining that Felix had a prior misdemeanor
conviction.7
Felix further contends that he actually filed objections to
the PSR, and suggests on appeal that he had not in fact
entered a guilty plea in the alleged prior case. Felix overstates
his assertion of innocence. At his initial sentencing hearing,
Felix filed objections to the PSR, asserting:
1. The case in question was subject to “diversion”
and no “judgment” was ever entered against MR.
FELIX;
2. The case was dismissed pursuant to a diversion
program;
3. There are no certified conviction documents in
support of the conviction; and
4. Diversion of the above-mentioned criminal case
would negate the criminal history point.
7
Felix also contends that the probation officer’s statements contained
within the PSR about the computer printouts were hearsay. This assertion
is not persuasive in light of Charlesworth, 217 F.3d at 1160 (holding that
the district court did not err when it relied on the PSR’s hearsay informa-
tion in sentencing the defendant).
4238 UNITED STATES v. FELIX
[9] This amounts to an assertion of post-conviction diver-
sion, not a denial of the conviction. Felix argued, in essence,
that the diversion of the case would negate the criminal his-
tory point. In short, he claimed that the government needed
more reliable proof, not that he did not commit the underlying
offense.8 In any event, our determination that the district court
properly relied on the computer printouts, coupled with
Felix’s failure to present any evidence on the issue, rebuts his
assertion on appeal that he was not convicted in 1999.
B. The district court properly shifted the burden on
Felix to show diversion and Felix failed to do so.
Felix’s second argument on appeal is that the district
wrongly placed the burden on him to demonstrate that his
prior conviction was diverted. Felix claims that the district
court, in essence, required that he “prove a lack of prior con-
victions.” Felix also asserts that his prior misdemeanor con-
viction should not have been considered in calculating his
criminal history category because under Arizona law, the con-
viction was expungeable, or subject to diversion. Specifically,
he argues that because he successfully completed probation,
his misdemeanor conviction should be vacated, and the
charge dismissed pursuant to ARS § 13-907(A).
[10] In United States v. Howard, 894 F.2d 1085, 1090 (9th
Cir. 1990), we adopted “the rule that the government should
bear the burden of proof when it seeks to raise the offense
level and that the defendant should bear the burden of proof
when the defendant seeks to lower the offense level.”9 The
8
Indeed, Felix’s assertion that his conviction was diverted, see supra, is
premised on Felix having been convicted and having successfully served
his probation.
9
In Howard, we noted that placing the burden on the party attempting
to adjust the offense level would “help preserve the base offense levels,”
observing that to place the burden on the government even when the
defendant was trying to lower the offense level would require the district
court to “essentially give every defendant a reduction in his base offense
level unless the government was able to meet its burden of proof.” 894
F.2d at 1089.
UNITED STATES v. FELIX 4239
“government should bear the burden of proof for any fact that
the sentencing court would find necessary to determine the
base offense level. . . . After that, the party seeking to alter the
base offense level should bear the burden of proving the nec-
essary facts.” Id. at 1090; see also Charlesworth, 217 F.3d at
1158 (“Thus, once the government has established the base
offense level, the burden falls on the party seeking to alter this
level to prove the necessary facts.”).
[11] The Sentencing Guidelines provide that in calculating
a defendant’s criminal history category, “[s]entences for
expunged convictions are not counted.” U.S.S.G. § 4A1.2(j).
However, expungement does not occur automatically under
ARS § 13-907(A).10 Indeed, the Fifth Circuit has commented
that § 13-907(A) “(1) appears to make expunction discretion-
ary, and (2) establishes that affirmative steps on the part of the
convicted person or a representative are necessary to effect
the expunction.” United States v. Cerverizzo, 74 F.3d 629,
631-32 (5th Cir. 1996).
[12] Similarly, we have held that a defendant cannot “get
the benefit of an expungement statute when he or she has not
complied with the procedures spelled out in the statute.”
United States v. Varela, 993 F.2d 686, 694 (9th Cir. 1993).
Thus, for purposes of the Sentencing Guidelines, a conviction
10
The statute provides in relevant part:
A. . . . [E]very person convicted of a criminal offense, on ful-
fillment of the conditions of probation or sentence and discharge
by the court, may apply to the judge . . . who pronounced sen-
tence or imposed probation or such judge . . . to have the judg-
ment of guilt set aside . . . . B. The application to set aside the
judgment may be made by the convicted person or by the con-
victed person’s attorney or probation officer authorized in writ-
ing. C. If the judge . . . grants the application, the judge . . . shall
set aside the judgment of guilt, dismiss the accusations or infor-
mation and order that the person be released from all penalties
and disabilities resulting from the conviction . . . .
ARIZ. REV. STAT. ANN. § 13-907 (emphasis added).
4240 UNITED STATES v. FELIX
will not be considered “expunged” where the defendant,
although entitled to expungement, never followed the formal
procedures as required by the statute. Id. at 693-94.
Felix’s argument that the district court wrongly placed the
burden on him to prove the prior conviction mischaracterizes
the district court’s proceedings. Contrary to Felix’s assertion,
the district court required that the government first prove
Felix’s criminal history points.
[13] After the government established Felix’s misdemeanor
conviction, Felix asserted that his prior conviction should not
be counted because it was subject to dismissal pursuant to a
diversion program. However, Felix offered no evidence that
he applied to a judge to get his conviction dismissed or
diverted. Indeed, he never asserted that he made such an
application. The Arizona statute requires a person to actually
“apply to the judge,” and provides that then, “[i]f the judge
. . . grants the application,” the judgment will be set aside.
ARIZ. REV. STAT. ANN. § 13-907(A), (C). Thus, consistent with
Howard, only after the government established Felix’s base
offense level, was Felix put to the task of attempting to reduce
the base offense level by showing that his conviction had been
diverted. Felix failed to do so, and his misdemeanor convic-
tion was properly considered in calculating his criminal his-
tory. See Cerverizzo, 74 F.3d at 632; Varela, 993 F.2d at 693-
94.
C. The district court’s reference to Felix’s misdemea-
nor conviction does not violate Shepard.
Felix’s third argument is that Shepard v. United States, 544
U.S. 13 (2005), prohibits courts from judicial fact-finding as
to the nature of the adjudication or any other facts about an
alleged conviction. He asserts that the government should
have proved Felix’s prior conviction with “judicially created”
documentation relying on United States v. Snellenberger, 548
F.3d 699 (9th Cir. 2008) (en banc).
UNITED STATES v. FELIX 4241
[14] Both Shepard and Snellenberger examined what infor-
mation a court may extract from documents recording a con-
viction when applying the modified categorical approach of
Taylor v. United States, 495 U.S. 575 (1990). See Shepard,
544 U.S. at 16; Snellenberger, 548 F.3d at 701. In neither case
was there any question about the fact of the conviction.
Rather, the issue was whether a court could rely on certain
documents to determine the type or character of the convic-
tion. See Shepard, 544 U.S. at 16 (“We hold that . . . a later
court determining the character of an admitted burglary is
generally limited to examining the statutory definition, charg-
ing document, written plea agreement, transcript of plea collo-
quy, and any explicit factual finding by the trial judge to
which the defendant assented.”); see also Snellenberger, 548
F.3d at 701 (“[W]e must figure out whether the conduct to
which he pleaded guilty was burglary of a building or other
structure . . . and further whether the burglary was of a dwell-
ing. . . .”). Here, the issue is only whether the documents pro-
vided by the probation officer supported the fact of the
misdemeanor conviction, not its type or character. Accord-
ingly, Felix’s reliance on Shepard and Snellenberger is with-
out merit.
D. The district court did not err in using a preponder-
ance of the evidence standard when it imposed the
mandatory minimum sentence.
Felix’s final argument on appeal is that the district court
erred in using the preponderance of the evidence standard
instead of a clear and convincing standard in determining
whether he had a prior misdemeanor conviction. He asserts
that the courts should have used the clear and convincing
standard because the determination had a disproportionate
impact on his sentence, namely, by increasing his guideline
sentence range and subjecting him to a mandatory minimum
sentence. In support of his argument, he cites to several cases
including United States v. Mezas de Jesus, 217 F.3d 638, 643-
45 (9th Cir. 2000) (requiring clear and convincing evidence
4242 UNITED STATES v. FELIX
for sentencing factor that increased sentence from “less than
two years to nearly five years”), and United States v. Hopper,
177 F.3d 824, 833 (9th Cir. 1999) (“[A] potential increase of
48 months satisfies the Restrepo extremely disproportionate
impact test.”).
[15] The preponderance of evidence standard is generally
the appropriate standard for factual findings used for sentenc-
ing. United States v. Dare, 425 F.3d 634, 642 (9th Cir. 2005);
United States v. Restrepo, 946 F.2d 654, 661 (9th Cir. 1991)
(en banc) (“[A]s a general rule . . . , due process does not
require a higher standard of proof than preponderance of the
evidence to protect a convicted defendant’s liberty interest in
the accurate application of the Guidelines.”). However,
“ ‘when a sentencing factor has an extremely disproportionate
effect on the sentence relative to the offense of conviction,’ ”
the government may have to prove the factor by clear and
convincing evidence. Mezas de Jesus, 217 F.3d at 642 (quot-
ing Restrepo, 946 F.2d at 659). In United States v. Jordan,
256 F.3d 922, 928 (9th Cir. 2001), we noted that in determin-
ing whether a sentence has a disproportionate impact, we will
look at the “totality of the circumstances,” including the fac-
tors pronounced in United States v. Valensia, 222 F.3d 1173,
1182 (9th Cir. 2000), cert. granted, judgment vacated, and
remanded by 532 U.S. 901 (2001) (internal quotation marks
omitted).
[16] We, however, have “applied the ‘disproportionate
impact’ test only in the case of federal guideline sentencing
enhancements.” Dare, 425 F.3d at 642 (citing United States
v. Gonzalez, 365 F.3d 796, 799 (9th Cir. 2004)). In Dare, the
defendant argued that his sentencing had a disproportionate
impact of doubling his sentence from five to ten years, and
thus, the district court erred when it used the preponderance
of the evidence standard instead of the clear and convincing
standard. 425 F.3d at 642. However, we explained that, while
the defendant’s argument would be “cognizable under our
case law if his sentence were imposed solely by reference to
UNITED STATES v. FELIX 4243
enhancements under the federal sentencing guidelines,”
because his sentence “was imposed by virtue of the manda-
tory minimum requirements,” the court would not and need
not determine whether the sentence had a disproportionate
impact. Id. We noted that statutory minimum sentences “bind
the district court, not the sentencing guidelines and enhance-
ments.” Id. We further noted that the district court’s findings
did not expose the defendant to a higher statutory maximum
sentence, which in that case was life imprisonment. Id.[17] Felix’s sentence was also “imposed by virtue of the
mandatory minimum requirements.” The Sentencing Guide-
lines note that where a mandatory minimum sentence applies,
as it does under 21 U.S.C. § 960(a) — the statute Felix was
sentenced under — the mandatory minimum may be
“waived” if, among other reasons, defendant qualifies for the
safety valve provision outlined in 18 U.S.C. § 3553(f).
U.S.S.G. § 2D1.1, Cmt. 7. Felix, however, did not qualify for
the safety valve provision, and, as a result, was exposed to the
mandatory minimum sentence. Moreover, as in Dare, there
were no discretionary enhancements; rather, the statutory
minimum sentence in section 960(a) bound the district court.
Dare, 425 F.3d at 642. Also as in Dare, the statutory maxi-
mum sentence was a life sentence, but the district court did
not impose a life sentence. Accordingly, we conclude that the
district court did not err when it used the preponderance of the
evidence standard instead of the clear and convincing stan-
dard.
[18] Even if we were to consider the mandatory minimum
sentence of 120 months to be an “enhancement,” the prepon-
derance of the evidence standard would still apply. The appli-
cation of Valensia’s six factors to this case reveals that Felix’s
sentence was not exceptional. Valensia, 222 F.3d at 1182. The
first Valensia factor — whether the enhanced sentence falls
within the maximum sentence for the crime alleged does
not apply because Felix’s mandatory minimum sentence of
120 months falls well within the lifetime maximum sentence.
4244 UNITED STATES v. FELIX
Factors two, three, and four also are not in play. Felix’s man-
datory minimum sentence does not negate the presumption of
innocence for the crime alleged in the indictment, the facts
offered in support of the sentence do not create new offenses
requiring separate punishment, and the increase in sentence is
not based on the extent of the conspiracy.
Factors five and six arguably apply, but do not dictate that
the clear and convincing standard be applied. Had Felix quali-
fied for the safety-valve provision, Felix’s offense level
would have been 25, which at a criminal history level one,
would have resulted in a sentencing range of 57 to 71 months.
This suggests that the fifth Valensia factor — whether the
increase in the total number of offense levels is less than or
equal to four — would apply in this case. Also, the sixth fac-
tor — whether the enhancement more than doubles the sen-
tence — may have been met. However, the application of the
fifth and sixth Valensia factors do not require, or even sug-
gest, the use of the clear and convincing standard. See Hop-
per, 177 F.3d at 833 (holding that a four-level adjustment is
not an exceptional case requiring clear and convincing evi-
dence).
[19] We have imposed the clear and convincing standard
only in exceptional circumstances. See e.g., Jordan, 256 F.3d
at 929 (requiring the clear and convincing standard where
there was a nine-level enhancement of defendant’s offense
level, and an increase of defendant’s sentence range from 70-
87 months to 151-188 months); Mezas de Jesus, 217 F.3d at
643 (requiring the clear and convincing standard where there
was a nine-level enhancement for “an offense for which [the
defendant] was never even charged.”). The doubling of a sen-
tence, particularly when based on the difference between a
sentence under the safety valve provision and the mandatory
minimum sentence does not render the case “exceptional” and
UNITED STATES v. FELIX 4245
does not require the application of the clear and convincing
standard of proof.11
V. CONCLUSION
We conclude that the government, by failure to object to
the sentencing judge’s statements that Felix could appeal his
sentence, waived its argument that Felix waived his right to
appeal. We further conclude that none of Felix’s arguments
on appeal are persuasive. The Guidelines and Ninth Circuit
case law allow the district court to consider a computer print-
out. The district court correctly placed the burden of proving
Felix’s prior convictions on the government, and properly
required that Felix show that his conviction had been
expunged or diverted. The district court’s use of the computer
printout did not violate Shepard because the court only used
the printout to determine the existence, not the nature, of the
conviction. Finally, the district court did not err in using the
preponderance of evidence standard rather than the clear and
convincing evidence standard with respect to the proof of
Felix’s misdemeanor conviction, because the imposition of a
non-discretionary mandatory sentence does not require the
latter standard. Further, even applying the factors set forth in
Valensia, Felix’s sentence does not present extraordinary cir-
cumstances that require the application of the higher standard.
Accordingly, Felix’s sentence is AFFIRMED.
11
Our discussion of the standards of proof should not be read as endors-
ing Felix’s underlying assertion that the evidence of the misdemeanor con-
viction would not have met the clear and convincing standard of proof.
We need not, and do not, address that issue.