United States v. Crawford ( 2008 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee, No. 06-30205
v.
 D.C. No.
CR-02-00272-WFN
ANTONIO FELICIANO CRAWFORD, aka
Tone; aka T; aka Tom, OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Washington
Wm. Fremming Nielsen, Senior Judge, Presiding
Submitted March 14, 2008*
Seattle, Washington
Filed March 28, 2008
Before: Betty B. Fletcher, Susan P. Graber, and
M. Margaret McKeown, Circuit Judges.
Opinion by Judge McKeown
*The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
3199
3202 UNITED STATES v. CRAWFORD
COUNSEL
Kathleen Moran, Federal Defenders of Eastern Washington
and Idaho, Spokane, Washington, for the defendant-appellant.
George J.C. Jacobs, III, Assistant United States Attorney,
Spokane, Washington, for the plaintiff-appellee.
OPINION
McKEOWN, Circuit Judge:
Antonio Feliciano Crawford raises a number of sentencing
issues that have now been answered by the spate of recent
UNITED STATES v. CRAWFORD 3203
sentencing decisions by the Supreme Court and this court. We
affirm his 210-month sentence for distribution of heroin and
crack cocaine.
FACTUAL AND PROCEDURAL BACKGROUND
Crawford was convicted by a jury of two counts of distribu-
tion of heroin and distribution of crack cocaine, in violation
of 21 U.S.C. § 841(a)(1). He was sentenced to 210 months’
imprisonment, six years of supervised release, a $1,000 fine
and a $100 special penalty assessment. The district court
found that he was a “career offender” under United States
Sentencing Guidelines § 4B1.1. The court calculated Craw-
ford’s original offense level as 34 and applied a two-level
reduction for acceptance of responsibility. The sentence was
at the bottom of the applicable Guidelines range of 210 to 262
months.
Crawford’s conviction was affirmed on direct appeal in
June 2004. See United States v. Crawford, 102 Fed. Appx. 91
(9th Cir. June 22, 2004) (unpublished). Several weeks later,
and before our mandate issued, the Supreme Court decided
Blakely v. Washington, 542 U.S. 296 (2004), which held that
in the context of mandatory state sentencing guidelines, the
Sixth Amendment right to a jury trial prohibited judges from
enhancing criminal sentences based on facts other than those
decided by the jury or admitted by the defendant. After
Blakely, Crawford asked us to recall our previous mandate.
While this motion was pending, the Supreme Court issued its
opinion in United States v. Booker, 543 U.S. 220 (2005),
where it held, among other things, that the Sentencing Guide-
lines were merely advisory, not mandatory, and that appellate
courts should review sentences for “reasonableness.” In
August 2005, we vacated Crawford’s sentence and remanded
his case for re-sentencing in light of Booker and pursuant to
United States v. Ameline, 409 F.3d 1073 (9th Cir. 2005) (en
banc). See United States v. Crawford, 422 F.3d 1145 (9th Cir.
2005) (order).
3204 UNITED STATES v. CRAWFORD
New counsel was appointed for Crawford and the parties
re-briefed the sentencing issues. The district court held
another sentencing hearing and imposed the same sentence as
before. Crawford appealed his re-sentencing, but his case and
others were deferred pending resolution of United States v.
Carty, 462 F.3d 1066 (9th Cir. 2006) (order),1 which itself
was deferred until after the Supreme Court decided several
sentencing cases, among them Rita v. United States, 551 U.S.
___, 127 S. Ct. 2456, 2465 (2007) (holding that appellate
courts may presume the reasonableness of within-Guidelines
sentences), and Gall v. United States, ___ U.S. ___, 128 S. Ct.
586, 591 (2007) (holding that appellate courts must review all
sentences, within and without the Guidelines range, under a
deferential abuse-of-discretion standard). On the same day it
decided Gall, the Court held in Kimbrough v. United States
that the Guidelines for crack cocaine, like all others under
Booker, are advisory only, and “it would not be an abuse of
discretion for a district court to conclude when sentencing a
particular defendant that the crack/powder [cocaine] disparity
yields a sentence ‘greater than necessary’ to achieve [18
U.S.C.] § 3553(a)’s purposes, even in a mine-run case.” Kim-
brough v. United States, ___ U.S. ___, 128 S. Ct. 558, 575
(2007). Crawford’s sentence was within the Guidelines, and
so we can now decide his appeal based on Rita and United
States v. Carty, ___ F.3d ___ , Nos. 05-10200, 05-30120 (9th
Cir. filed March 24, 2008) (en banc) (declining to adopt a
“presumption” of reasonableness for within-Guidelines sen-
tences, but recognizing that a correctly calculated Guidelines
sentence “will usually be reasonable”).
Analysis
Crawford raises three issues on appeal: (1) whether the
Sentencing Commission’s policy statements should be given
1
United States v. Carty, 453 F.3d 1214 (9th Cir. 2006), and United
States v. Zavala, 443 F.3d 1165 (9th Cir. 2006) (per curiam), were consol-
idated for purposes of rehearing en banc.
UNITED STATES v. CRAWFORD 3205
more weight than the Guidelines for crack cocaine sentences
because the Commission’s reports are supported by empirical
evidence, while the Guidelines were based on unproven
assumptions; (2) whether the district court procedurally erred
in offering comments concerning the view that the Guidelines
are presumptively reasonable and whether it failed to consider
the sentencing factors set forth in 18 U.S.C. § 3553(a); and (3)
whether the district court erred in finding that Crawford was
a career offender. We deal with each issue in turn.
A. SENTENCING DISPARITY BETWEEN CRACK AND POWDER
COCAINE
[1] Crawford argues that the reports by the Sentencing
Commission are supported by empirical research, while the
Guidelines are based on speculations that “ha[ve] never held
up to objective scrutiny,” and consequently, a district court
should give more weight to the Commission’s reports and less
weight to the Guidelines. Although the Supreme Court has
since validated Crawford’s view, see Kimbrough, ___ U.S.
___, 128 S. Ct. at 575 (“In formulating Guidelines ranges for
crack cocaine offenses, . . . the Commission . . . did not take
account of ‘empirical data and national experience.’ Indeed,
the Commission itself has reported that the crack/powder dis-
parity produces disproportionately harsh sanctions . . . for
crack cocaine offenses . . . .” (citations omitted)), Kimbrough
does not help Crawford’s case because he conceded during
his re-sentencing hearing that the disparity does not actually
affect his sentencing level. The judge asked during the hear-
ing, “[a]ssuming the court is correct that [Crawford] qualifies
as a career offender, if the conviction had been for powder
instead of crack, wouldn’t we be in the same place?,” to
which Crawford’s counsel responded by acknowledging that
the base offense level calculation would be the same regard-
less of the powder cocaine versus crack cocaine distinction.
Thus Kimbrough is unavailing to Crawford’s cause.
3206 UNITED STATES v. CRAWFORD
B. REASONABLENESS OF SENTENCE AND APPLICATION OF
§ 3553(a) FACTORS
1. Post-Rita and Carty reasonableness analysis
[2] Crawford argues that the district court erred in imposing
a sentence within the Guidelines after declaring its view that
such sentences are presumptively reasonable. Though the
Supreme Court in Rita held that appellate courts may presume
that a sentence is reasonable when a district court judge’s dis-
cretionary decision accords with the sentence the Sentencing
Commission deems appropriate in most cases, the Court
emphasized that such a presumption was limited to the stan-
dard on appeal. See Rita, 551 U.S. at ___, 127 S. Ct. at 2465
(“We repeat that the presumption before us is an appellate
court presumption. Given our explanation in Booker that
appellate ‘reasonableness’ review merely asks whether the
trial court abused its discretion, the presumption applies only
on appellate review.” (emphasis in original) (citing Booker,
543 U.S. at 259-60)); Gall, ___ U.S. at ___, 128 S. Ct. at 596-
97; Carty, ___ F.3d at ___ (the district court may not presume
that the Guidelines range is reasonable).
[3] The district court here did not presume the reasonable-
ness of a Guidelines sentence with respect to Crawford’s case
but, rather, presciently forecasted Rita’s holding, while citing
to Booker and acknowledging other circuits that had already
adopted the rule Rita would eventually espouse:
[W]e all recognize that now, the sentencing guide-
lines are advisory. They’re not mandated. We are
required to consult them, calculate—the career
offender provision under Chapter 4 of the guidelines
is advisory. . . . But as I’ve said before and I’ll say
now, in view of the Booker/Fan Fan cases, which
require us to look at the guidelines, consult them,
calculate the appropriate guideline sentence, that the
standard of review on appeal is reasonable if the
UNITED STATES v. CRAWFORD 3207
court feels that—and some of the circuits have said
—specifically held that a guideline sentence, unless
there’s some real reason to vary from it, is presump-
tively reasonable; and I think that that makes sense.
This statement must be viewed in the context of the entire
sentencing hearing. We must distinguish the district court’s
comment on some circuits’ adoption of the presumption for
appellate review, a statement made in passing, from the thor-
ough process the court went through in determining the
appropriateness of Crawford’s sentence, which was done
within the framework established by Booker and reinforced
by Rita, Gall, and Kimbrough. See Kimbrough, ___ U.S. at
___, 128 S. Ct. at 574 (the Guidelines are “the ‘starting point
and the initial benchmark’ ” (quoting Gall, ___ U.S. at ___,
128 S. Ct. at 596)); Gall, ___ U.S. at ___, 128 S. Ct. at 596-
97 n.6 (the Guidelines are to be kept in mind throughout the
process); Carty, ___ F.3d at ___ (all sentencing proceedings
are to begin by determining the applicable Guidelines range,
which must be calculated correctly, and the Guidelines should
be kept in mind throughout the process). The district court
neither misapprehended the sentencing framework nor
adopted a presumption of reasonableness.
2. Application of § 3553(a) factors
[4] To comply with the requirements of Booker, a district
court must sufficiently consider the Guidelines, as well as the
other factors listed in § 3553(a). The district court here more
than met Booker’s requirements. The sentencing colloquy and
explanation were detailed and thoughtful. The district court
then properly applied the § 3553(a) factors alongside the
Guidelines, noting that it must look “not only [at] the recom-
mendations contained in the advisory guidelines, but . . . at
the whole picture. And the criteria that we do look at are set
forth in 18 USC 3553(a).”
[5] The judge first analyzed § 3553(a)(3) (“kinds of sen-
tences available”) and § 3553(a)(4)(A) (“kinds of sentence
3208 UNITED STATES v. CRAWFORD
and the sentencing range established for—the applicable cate-
gory of offense committed by the applicable category of
defendant as set forth in the guidelines”) and discussed how,
in previously considering Crawford’s sentence, he had felt
that a potential maximum life sentence was too high and had
adjusted it accordingly, taking into account Crawford’s accep-
tance of responsibility. The judge then considered
§ 3553(a)(1) (“the nature and circumstances of the offense
and the history and characteristics of the defendant”) and
found drug trafficking to be “probably one of the most serious
crimes that confronts society at this time,” commenting that
there was “good reason to believe” that Crawford had been
affiliated with gangs and may even have been a participant in
a drive-by shooting. Considering § 3553(a)(2)(A) and
§ 3553(a)(2)(C) (“the need for the sentence imposed—to
reflect the seriousness of the offense, to promote respect for
the law, and to provide just punishment for the offense” and
“to protect the public from further crimes of the defendant”),
the judge also reflected on the need for the sentence imposed
as promoting “[r]espect for the law,” and protecting the pub-
lic, observing the necessary reliance of the distribution
schemes of “high-level dealers” on “street dealers,” such as
Crawford.
[6] With regard to § 3553(a)(2)(B) (the need for the sen-
tence “to afford adequate deterrence to criminal conduct”),
the court observed that Congress has created harsh penalties
in order to deter such activity because of its ruinous effects on
individuals and communities. Finally, with respect to
§ 3553(a)(2)(D) (“to provide the defendant with needed edu-
cational or vocational training, medical care, or other correc-
tional treatment in the most effective manner”), the court then
took into account the need for rehabilitation, remarking to
Crawford that he was “encouraged” that Crawford felt he was
changing his life, and that he hoped Crawford would continue
“to act appropriately while . . . incarcerated, earn maximum
good time, and participate in the 500-hour drug treatment pro-
gram” once eligible to do so.
UNITED STATES v. CRAWFORD 3209
After reviewing these factors, the judge concluded,
in view of all the factors taken into account—your
criminal history background, your long use and sell-
ing of drugs—and I emphasize long period of time
selling drugs here in this community—your associa-
tions and your other activities—they all indicate that
a reasonable sentence, taking into account not only
the advisory guidelines of 3553, is the sentence that
was imposed; and that’s the 210 months. And I’m
not going to change anything.
In light of the advisory Guidelines and the relevant sentencing
factors in § 3553, the district court committed no error in its
thorough and sympathetic consideration of Crawford’s case.
C. CALCULATION OF CAREER OFFENDER STATUS
The final issue Crawford raises is whether the district court
correctly found that he qualifies as a career offender based on
his two prior drug offense convictions in California and
Washington. With respect to the California conviction, Craw-
ford challenges the sufficiency of the documentation. With
respect to the Washington conviction, he challenges the cate-
gorization of the offense. We review de novo the district
court’s interpretation of the Sentencing Guidelines and its
determination that a defendant qualifies as a career offender.
United States v. Shumate, 329 F.3d 1026, 1028 (9th Cir.
2003). The district court was correct in its determination that
Crawford qualifies as a career offender under U.S.S.G.
§ 4B1.1.
1. California Conviction
[7] In 1990, Crawford pled guilty to violating California
Health and Safety Code § 11352(a), which provides: “[E]very
person who transports, imports into this state, sells, furnishes,
administers, or give[s] away . . . any controlled substance
3210 UNITED STATES v. CRAWFORD
specified in [the statute] . . . shall be punished by imprison-
ment in the state prison for three, four, or five years.” To doc-
ument the conviction, the government provided the felony
complaint charging the § 11352(a) violation, the information,
the plea form, the abstract of judgment, and the state court’s
minute orders entering a judgment of conviction. On the plea
form, Crawford provided a hand-written factual basis for his
plea, which stated: “On 6/21/90 in Orange County I sold a
useable quantity of cocaine, knowing it was cocaine. On 7/
13/90 in Orange County, I transported cocaine knowing it was
cocaine. The quantity on 6/21/90 was 14.45 gms. The quantity
on 7/13/90 was 180 grams.” He signed and dated the form.
[8] In analyzing whether a prior conviction qualifies as a
prior predicate controlled substance offense for purposes of
U.S.S.G. § 4B1.1, the sentencing court must first use the cate-
gorical approach. United States v. Kovac, 367 F.3d 1116,
1119 (9th Cir. 2004) (citing Taylor v. United States, 495 U.S.
575 (1990)). Under this approach, the sentencing court must
look only to the statute of conviction. Id. If the statute is
facially over-inclusive, the court employs the modified cate-
gorical approach. Id. The government concedes that the Cali-
fornia statute is too broad to qualify under the categorical
approach because the Health and Safety Code covers such a
wide range of possible behavior. See id. at 1119-20 (applying
modified categorical approach to question of whether Cal.
Health and Safety Code § 11352 violation qualifies as a
career-offender predicate offense).
Under the modified categorical approach, the prior offense
may qualify as a career offender predicate offense if “ ‘docu-
mentation or judicially noticeable facts . . . clearly establish
that the conviction is a predicate conviction for enhancement
purposes.’ ” United States v. Corona-Sanchez, 291 F.3d 1201,
1211 (9th Cir. 2002) (en banc) (quoting United States v.
Rivera-Sanchez, 247 F.3d 905, 908 (9th Cir. 2001) (en banc),
superseded by statute on other grounds as noted in United
States v. Vidal, 426 F.3d 1011, 1014-15 (9th Cir. 2005). “The
UNITED STATES v. CRAWFORD 3211
government has the burden to establish clearly and unequivo-
cally that the conviction was based on all of the elements of
a qualifying predicate offense.” Kovac, 367 F.3d at 1119.
Where the prior conviction was based on a guilty plea, the
sentencing court’s review is limited “to those documents
‘made or used in adjudicating guilt’ such as ‘the terms of the
charging document, the terms of a plea agreement or [the]
transcript of [the] colloquy between judge and defendant in
which the factual basis for the plea was confirmed by the
defendant, or to some comparable judicial record of this infor-
mation.’ ” United States v. Martinez-Martinez, 468 F.3d 604,
606-07 (9th Cir. 2006) (alterations in original) (quoting Shep-
ard v. United States, 544 U.S. 13, 20, 26, (2005)); see also
United States v. Narvaez-Gomez, 489 F.3d 970, 977 (9th Cir.
2007).
The district court concluded that the 1990 California con-
viction meets the requirements for the career offender
enhancement under the modified categorical approach. Craw-
ford argues that the documentation was insufficient to estab-
lish the elements of the California offense because certain
parts of the plea documents were illegible, because the gov-
ernment relied on the abstract of judgment, and because the
plea agreement itself was not signed by a judge. The district
court considered and rejected each of these arguments. None
of the arguments is persuasive on appeal.
[9] The 1990 California conviction meets the requirements
for the modified categorical approach. In his plea, Crawford
clearly admitted that he knowingly sold and transported
cocaine. Selling cocaine falls within the definition of a con-
trolled substance offense, even though the statutory definition
of the California offense is broader. U.S.S.G. § 4B1.2(b).
Crawford does not contest either the accuracy of the plea form
or his statement contained on the form. The district court
found that the plea form was signed by Crawford, his attor-
ney, and the prosecuting attorney, and that nothing more was
required. The district court therefore relied in part on the facts
3212 UNITED STATES v. CRAWFORD
admitted to in the plea in finding that the underlying elements
of the § 11352 offense were established. Although Crawford
disputes whether the abstract of judgment and the minute
order are acceptable documentation, we need not comment on
that argument. The plea, in conjunction with the charging
documents, is sufficient to show that the California conviction
was for a qualifying predicate drug offense and that the ele-
ments of the offense were satisfied. Corona-Sanchez, 291
F.3d at 1211.
2. Washington Conviction
[10] In 2001, Crawford pled guilty to conspiracy to deliver
a controlled substance (crack cocaine) in violation of the
Washington Revised Code § 69.50.407, which provides: “Any
person who attempts or conspires to commit any offense
defined in this chapter is punishable by imprisonment or fine
or both which may not exceed the maximum punishment pre-
scribed for the offense, the commission of which was the
object of the attempt or conspiracy.”
The government provided the district court with the
amended information, Crawford’s plea agreement, several law
enforcement affidavits supporting the plea agreement, and the
state court’s judgment of conviction and sentence. The
amended information charged Crawford with:
Conspiracy to deliver a controlled substance, com-
mitted as follows, that the defendant, Antonio Feli-
ciano Crawford, in the State of Washington, on or
about May 27, 1997, did knowingly and unlawfully
conspire with at least one person other than the
intended recipient to deliver a controlled substance,
to-wit: crack cocaine, proscribed by RCW 69.50.407
[conspiracy] and 69.50.401(a) [controlled substance
statute].
Crawford’s plea agreement, in a hand-written note, reflects
that the elements of the crime are adopted “as in amended
UNITED STATES v. CRAWFORD 3213
info.” The plea agreement was signed by Crawford, defense
counsel, the prosecuting attorney, and the state court judge.
The state court entered a judgment of conviction and sen-
tenced Crawford to 26 days’ imprisonment.
[11] Under the Sentencing Guidelines, a predicate offense
can qualify a defendant for career offender status if it is a “fel-
ony conviction[ ]” of “either a crime of violence or a con-
trolled substance offense,” U.S.S.G. § 4B1.1(a), where a
“controlled substance offense” is “an offense under federal or
state law, punishable by imprisonment for a term exceeding
one year, that prohibits the manufacture, import, export, dis-
tribution, or dispensing of a controlled substance . . . or the
possession of a controlled substance . . . with intent to manu-
facture, import, export, distribute, or dispense,” id.
§ 4B1.2(b). The underlying controlled substance statute pro-
vides that “it is unlawful for any person to manufacture,
deliver, or possess with intent to manufacture or deliver a
controlled substance.” Wash. Rev. Code § 69.50.401(1)
(2005). The statute also provides that “[a]ny person who vio-
lates this section with respect to (a) A controlled substance
classified in Schedule I or II which is a narcotic drug . . . is
guilty of a class B felony and upon conviction may be impris-
oned for not more than ten years . . .” Id. § 69.50.401(2)(a)
(2005).
[12] The district court concluded that the 2001 Washington
conviction qualifies as a predicate offense because the maxi-
mum term for the crime was imprisonment for ten years based
on the controlled substances statute. Crawford concedes that
“[t]he conspiracy statute states that the maximum punishment
may not exceed the maximum for the object of the conspir-
acy, in this case a Class B felony with a 10 year maximum.”
To avoid the application of that ten-year maximum, Crawford
cites Wash. Rev. Code § 9.94A.120(6) (re-codified in 2001 as
Wash. Rev. Code § 9.94A.505(2)(b)), and argues that under
Washington’s Sentencing Reform Act, conspiracy is an “un-
3214 UNITED STATES v. CRAWFORD
ranked” offense and, thus, the maximum sentence available is
twelve months.
[13] We rejected an almost identical argument in United
States v. Murillo, 422 F.3d 1152 (9th Cir. 2005). In Murillo,
we considered whether, for purposes of determining “whether
a Washington state criminal conviction is of a crime punish-
able by a term exceeding one year for purposes of prosecution
under 18 U.S.C. § 922(g)(1) (felon in possession of a fire-
arm),” the “maximum sentence for [a] prior conviction is
defined by the state criminal statute, [or] the maximum sen-
tence in the particular case set by Washington’s sentencing
guidelines.” Id. at 1153. We held that
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 accord-
ing to the state’s sentencing guidelines.
Id. at 1155 (emphases added). We explicitly rejected the idea
that Apprendi v. New Jersey, 530 U.S. 466, 471 (2000), or
Blakely affected this definition of a predicate conviction:
Blakely did not change the definition of what consti-
tutes a maximum sentence under state law for pur-
poses of prosecution under 18 U.S.C. § 922(g)(1).
...
....
. . . Murillo’s argument has nothing to do with
Apprendi or Blakely. While Apprendi, and corre-
spondingly Blakely, involved the “maximum sen-
tence” a judge may impose based on the jury’s
UNITED STATES v. CRAWFORD 3215
verdict or the defendant’s admissions, Murillo
attempts to extend Apprendi and Blakely to modify
a crime’s potential punishment . . . .
Murillo, 422 F.3d at 1154-55. Thus, Crawford’s argument is
foreclosed by Murillo. The 2001 Washington conviction qual-
ifies as a predicate drug offense, and the district court did not
err in relying on that offense in determining that Crawford
was a career criminal.
AFFIRMED.