United States v. Daniel Chavez, Jr. ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS FEB 26 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 17-50094
Plaintiff-Appellee, D.C. No.
5:15-cr-00067-VAP-1
v.
DANIEL CHAVEZ, Jr., MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
Virginia A. Phillips, Chief District Judge, Presiding
Argued and Submitted July 11, 2019
Pasadena, California
Before: M. SMITH and FRIEDLAND, Circuit Judges, and SIMON,** District
Judge.
Before a district court may sentence a person convicted of a controlled
substance offense to an increased punishment under 21 U.S.C. § 841(b)(1)(A)
based on a prior conviction for a “serious drug felony,” the judge must strictly
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Michael H. Simon, United States District Judge for the
District of Oregon, sitting by designation.
comply with 21 U.S.C. § 851(b)’s procedural safeguards.1 In this case, a jury
convicted Defendant Daniel Chavez, Jr. (“Chavez”) following trial of distribution
of methamphetamine, possession with intent to distribute methamphetamine, being
a felon in possession of firearms and ammunition, possession of a firearm with an
obliterated or altered serial number, and possession of an unregistered firearm. The
jury acquitted Chavez of the charge of possessing a firearm in furtherance of a
drug trafficking crime. At sentencing, the district court concluded that Chavez’s
mandatory minimum sentence must be increased from 10 years to 20 years based
on his 2007 felony conviction in California state court.2 The district court then
imposed the higher mandatory minimum sentence of 20 years imprisonment.
1
These safeguards require the court after conviction but before
pronouncement of sentence to inquire of the person being sentenced “whether he
affirms or denies that he has been previously convicted as alleged in the
information [filed pursuant to § 851(a)], and shall inform him that any challenge to
a prior conviction which is not made before sentence is imposed may not thereafter
be raised to attack the sentence.” 21 U.S.C. § 851(b).
2
In November 2006, state authorities charged Chavez in a two-count felony
complaint. The first count alleged that Chavez possessed methamphetamine for
sale, a felony violation of California Health and Safety Code (“Cal. H&S”)
§ 11378. The second count alleged that Chavez possessed marijuana, a
misdemeanor violation of Cal. H&S § 11357. In January 2007, Chavez pleaded
guilty to the § 11378 felony charge. In March 2010, Chavez filed a petition in the
California Superior Court to set aside his plea of guilty and to dismiss the
underlying criminal complaint. The petition explained that Chavez had fulfilled the
conditions of his probation, was not serving a sentence for any other offense, and
had not been charged with any other offense. The California Superior Court
granted Chavez’s petition and ordered vacatur of his guilty plea, the entry of a plea
of not guilty, and dismissal of the complaint.
2
Chavez appeals only his sentence. The parties agree that the district judge did not
comply with § 851(b). We have jurisdiction under 18 U.S.C. § 3742(a)(1) and 28
U.S.C. § 1291. We vacate the sentence and remand to the district court for
resentencing.
Chavez raises four issues on appeal. First, he argues that the district court
did not provide him with the procedural safeguards required by 21 U.S.C. § 851(b)
before concluding that Chavez had a prior conviction for a “felony drug offense”
(now referred to as a “serious drug felony”) that required the doubling of Chavez’s
mandatory minimum sentence from 10 years to 20 years under § 841(b)(1)(A).
Second, Chavez contends that, for two independent and alternative reasons, his
alleged prior conviction under Cal. H&S § 11378 was not a qualifying “felony
drug offense” within the meaning of 21 U.S.C. §§ 841(b)(1)(A) and 802(44).
Third, Chavez asserts that that the definition of “felony drug offense” in § 802(44)
is void for vagueness. And fourth, Chavez maintains that the district court erred in
calculating the applicable U.S. Sentencing Guidelines range by failing to grant
Chavez a two-level reduction for acceptance of responsibility after he (1)
essentially conceded seven of the eight counts with which he was charged and (2)
was found not guilty by the jury on the only count that he did not concede, the
charge of possessing a firearm in furtherance of a drug trafficking crime. Based on
our analysis, we need not address Chavez’s third and fourth arguments nor a
3
portion of his second.
The parties agree that before the district court Chavez did not object that he
was not provided with his procedural rights under § 851(b). The parties, however,
disagree about the standard of review that we must apply. Chavez asserts that the
district court’s failure to comply with § 851(b) was not harmless and thus remand
is required. The government argues that the plain error standard applies.3 Chavez
responds that even if plain error review were to apply, he still would still succeed
under that standard. We assume without deciding that the more stringent standard
of plain error review applies in this case.4
3
See United States v. Reed, 575 F.3d 900, 928 (9th Cir. 2009) (“We review
for plain error a challenge to the district court’s colloquy under § 851(b), not raised
in the district court.”); but see United States v. Rodriguez, 851 F.3d 931, 946 (9th
Cir. 2017) (“The general rule is clear that failure to comply with section 851(b)
renders the sentence illegal. But non-prejudicial errors in complying with the
procedural requirements of § 851 do not automatically require reversal; they
sometimes may be harmless.”) (citations and quotation marks omitted).
4
We also note that in United States v. Olano, 507 U.S. 725, 735 (1993), the
Supreme Court observed that “[t]here may be a special category of forfeited errors
that can be corrected regardless of their effect on the outcome.” Errors within this
category “should be presumed prejudicial if the defendant cannot make a specific
showing of prejudice.” See id.; see also, e.g., United States v. Syme, 276 F.3d 131,
154 (3d Cir. 2002); United States v. Harbin, 250 F.3d 532, 544 (7th Cir. 2001). By
analogy, in cases where the district court denies the defendant his right of
allocution at sentencing, we have held that “when a district court could have
lowered a defendant’s sentence, we have presumed prejudice and remanded, even
if we doubted that the district court would have done so.” United States v.
Gunning, 401 F.3d 1145, 1149 (9th Cir. 2005) (emphasis added). We have
acknowledged that in such cases, plain error review would seem to apply because
“no objection to the lack of allocution was made at the district court level.” Id.4
Under plain error review, “a court of appeals has discretion to remedy a
forfeited error provided certain conditions are met.” Molina-Martinez v. United
States, 136 S. Ct. 1338, 1343 (2016). These conditions are stated in four prongs.
See Puckett v. United States, 556 U.S. 129, 135 (2009). “First, there must be an
error or defect—some sort of ‘[d]eviation from a legal rule’—that has not been
intentionally relinquished or abandoned, i.e., affirmatively waived, by the
appellant.” Id. (quoting Olano, 507 U.S. at 732-33) (alteration in original).
“Second, the legal error must be clear or obvious, rather than subject to reasonable
dispute.” Id. “Third, the error must have affected the appellant’s substantial rights,
which in the ordinary case means he must demonstrate that it ‘affected the outcome
of the district court proceedings.’” Id. (quoting Olano, 507 U.S. at 734). “Fourth
and finally, if the above three prongs are satisfied, the court of appeals has the
discretion to remedy the error—discretion which ought to be exercised only if the
error ‘seriously affect[s] the fairness, integrity or public reputation of judicial
proceedings.’” Id. (quoting Olano, 507 U.S. at 736) (alteration in original).
To show that an error affects substantial rights, i.e., the third prong of plain
at 1149 n.6. But we have never applied that standard of review, at least expressly.
See id. “Perhaps, as the Third Circuit has determined, that is because the error is so
plainly plain that it falls within the category of errors ‘that should be presumed
prejudicial if the defendant cannot make a specific showing of prejudice.’” Id.(quoting United States v. Adams, 252 F.3d 276, 287 (3d Cir. 2001)). Such a
presumption of prejudice, however, would appear to be rebuttable and not apply
when it was beyond reasonable dispute that no prejudice was possible.
5
error review, the defendant need only show that “the probability of a different
result is ‘sufficient to undermine confidence in the outcome’ of the proceeding.”
United States v. Dominguez Benitez, 542 U.S. 74, 83 (2004) (emphasis added)
(quoting Strickland v. Washington, 466 U.S. 668, 694 (1984)). Moreover, this
“reasonable-probability standard is not the same as, and should not be confused
with, a requirement that a defendant prove by a preponderance of the evidence that
but for error things would have been different.” Id. at 83 n.9.
Regarding Chavez’s first argument, the district court did not conduct the
colloquy with Chavez that is required under § 851(b). That is error, as the
government concedes. The government also does not dispute that this error was
clear and obvious.5 This satisfies the first two prongs of plain error review. The
third prong of the plain error test directs the reviewing court to review the entire
5
The government, however, argues that Chavez is statutorily barred from
collaterally challenging his predicate conviction because that conviction is more
than five years old. See 21 U.S.C. § 851(e) (“No person who stands convicted of an
offense under this part may challenge the validity of any prior conviction alleged
under this section which occurred more than five years before the date of the
information alleging such prior conviction.”). We disagree. In the Ninth Circuit,
the term “[c]hallenge” in § 851(c)(2) refers to a collateral attack in federal court.
See United States v. McChristian, 47 F.3d 1499, 1503 (9th Cir. 1995). Because
“challenge” to a prior conviction, as used in § 851(c)(2), means only a full-blown,
collateral attack in federal court against the prior conviction, “challenge” means
the same thing in § 851(e). See id. Thus, although Chavez may not collaterally
attack his prior conviction due to § 851(e)’s statute of limitations, he may
nonetheless argue in this direct appeal that his prior conviction does not constitute
a conviction of a “felony drug offense.”
6
record to determine whether “the probability of a different result is sufficient to
undermine confidence in the outcome of the proceeding.” Dominguez Benitez, 542
U.S. at 83 (citation and quotation marks omitted).
Chavez offers two independent grounds for how the district court’s failure to
comply with § 851(b) undermines confidence in the outcome of the sentencing.
First, Chavez states that the documents before the court at the time of sentencing
are insufficient to meet the government’s burden of proving that Chavez pleaded
guilty to a felony drug offense covered by the federal Controlled Substance Act.
Those documents consisted of: (1) a complaint that charged Chavez with a felony
violation of Cal. H&S § 11378, alleging possession for sale of methamphetamine,
and a misdemeanor violation of Cal. H&S § 11357, alleging possession of
marijuana; and (2) a state felony plea form on which Chavez placed his initials
next to a preprinted line that stated: “Factual Basis: I agree that I did the things that
are stated in the charges that I am admitting.” The California Superior Court
convicted Chavez of a single felony count of possession for sale of
methamphetamine in violation of Cal. H&S § 11378. That court then sentenced
Chavez to three years of probation with a condition that he serve 150 weekend-
days in jail. The court also dismissed the misdemeanor count.6
6
In March 2010, the California Superior Court ordered vacatur of Chavez’s
guilty plea, the entry of a plea of not guilty, and dismissal of the complaint. See
n.2, supra.
7
Chavez contends that before the California Superior Court he merely
admitted to doing the things that are stated in the charges, not the counts. The
government responds that these documents are enough, notwithstanding any
ambiguity between “count” and “charge,” and that Chavez cannot meet his burden
of showing that his substantial rights were affected. The government also argues
that if Chavez had raised this objection before the district court, the government
may have then obtained and submitted further documentation from the state court
proceeding to support the findings that were required to increase Chavez’s
mandatory minimum sentence from 10 years to 20.
As the government concedes, however, the district judge failed to comply
with § 851(b) by not specifically asking Chavez whether he affirmed or denied his
2007 felony drug conviction and by not informing Chavez that he needed to raise
any challenge to that conviction before sentence was imposed. We find that there is
enough ambiguity here to conclude that Chavez has satisfied the third prong of
plain error review.7
7
Chavez’s alternative third-prong argument is based on the distinction
between optical and geometrical (or diastereomic) isomers of methamphetamine.
Both types of isomers are prohibited under Cal. H&S § 11378, but only the former
type of isomer is prohibited under federal law. This raises the issue of whether the
California law is overbroad and thus cannot serve as a predicate offense for
Chavez’s federal mandatory minimum sentence enhancement. The government
responds that this apparent facial overbreadth is legally irrelevant because, as the
government asserts, geometrical isomers of methamphetamine do not exist in the
real world. We recently remanded that question for further factual development in
8
Finally, the fourth prong of plain error review, relating to the fairness,
integrity, or public reputation of judicial proceedings, is satisfied in this case. We
have previously stated that a district judge must strictly comply with § 851(b)’s
procedural safeguards, and we have reversed and remanded for resentencing when
that has not been done. See Rodriguez, 851 F.3d at 946 (“We require strict
compliance with the procedural aspects of section 851(b). The § 851(b) colloquy is
not merely a procedural requirement. It serves a functional purpose to place the
procedural onus on the district court to ensure defendants are fully aware of their
rights.”) (citations and quotation marks omitted); see also United States v.
Ocampo-Estrada, 873 F.3d 661, 667 (9th Cir. 2017) (citing Rodriguez for the
proposition that strict compliance with § 851(b) is required to ensure that
defendants are “fully aware of their rights”).
By failing to comply with the procedural safeguards required under
§ 851(b), the district court foreclosed Chavez from challenging the district court’s
conclusion that it was required to use Chavez’s 2007 conviction under Cal. H&S
§ 11378 as a qualifying felony drug offense. “We have regularly deemed the fourth
another case, and we express no opinion here on that matter. See United States v.
Rodriguez-Gamboa, 946 F.3d 548, 552 (9th Cir. 2019) 552 (explaining that
“resolution of the factual issue of whether geometric isomers of methamphetamine
exist has the potential to inform our disposition of this appeal and future cases”
regarding the scope of Cal. H&S § 11378 and remanding that issue for limited
factfinding).
9
prong of the plain error standard to have been satisfied where . . . the sentencing
court committed a legal error that may have increased the length of a defendant’s
sentence.” United States v. Tapia, 665 F.3d 1059, 1063 (9th Cir. 2011) (emphasis
added) (citations omitted). Based on Chavez’s 2007 California conviction, the
district court concluded that it was required to double Chavez’s mandatory
minimum sentence under 21 U.S.C. § 841(b)(1)(A) from 10 years to 20 years.8
Defendant’s sentence is VACATED, and we REMAND for resentencing.
8
This statute directs a mandatory minimum sentence of at least 10 years.
Under the version of the statute applicable when Chavez was sentenced, a district
court must double the mandatory minimum sentence to 20 years for any defendant
with a qualifying prior conviction for a “serious drug felony” (previously called a
“felony drug offense”). Under the First Step Act of 2018, however, a prior
conviction for a serious drug felony increases the 10-year mandatory minimum to
only 15 years, not 20 years. 21 U.S.C. § 841(b)(1)(A) (2019). See Pub. L. 115-391,
132 Stat. 5194 (Dec. 21, 2018) (“First Step Act of 2018”) at Title IV, § 401(a)(2).
In addition, under this law, the term “serious drug felony” now requires, among
other things, that “the offender served a term of imprisonment of more than 12
months.” 21 U.S.C. § 802(57)(A) (2019). See First Step Act of 2018 at Title IV,
§ 401(a)(1). Because Chavez was sentenced in his prior conviction to probation
with a condition that he serve 150 weekend-days in jail, that prior conviction
would no longer appear to qualify as a “serious drug felony” for purposes of
increasing his minimum mandatory sentence above 10 years. The amendments
brought about under the First Step Act, however, “apply to any offense that was
committed before the date of enactment of this Act, if a sentence for the offense
has not been imposed as of such date of enactment.” First Step Act of 2018 at
Title IV, § 401(c) (emphasis added). We express no opinion on whether these
amendments would apply to Chavez at resentencing.
10