United States v. Lizarraga-Carrizales , 757 F.3d 995 ( 2014 )


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  •                      FOR PUBLICATION
    UNITED STATES COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    UNITED STATES OF AMERICA,                         No. 10-50148
    Plaintiff-Appellee,
    D.C. No.
    v.                           3:09-cr-00691-
    WQH-1
    ROBERTO IVAN LIZARRAGA-
    CARRIZALES,
    Defendant-Appellant.                   OPINION
    Appeal from the United States District Court
    for the Southern District of California
    William Q. Hayes, District Judge, Presiding
    Argued and Submitted
    June 2, 2014—Pasadena, California
    Filed July 2, 2014
    Before: Stephen S. Trott and Consuelo M. Callahan, Circuit
    Judges, and Mark W. Bennett, District Judge.*
    Opinion by Judge Callahan
    *
    The Honorable Mark W. Bennett, District Judge for the U.S. District
    Court for the Northern District of Iowa, sitting by designation.
    2        UNITED STATES V. LIZZARAGA-CARRIZALES
    SUMMARY**
    Criminal Law
    The panel affirmed a sentence in a case in which the
    defendant claimed that the district court improperly engaged
    in judicial fact-finding in denying him safety valve relief
    from the mandatory minimum sentence and misapplied the
    Sentencing Guidelines.
    The panel held that the safety valve determination under
    18 U.S.C. § 3553(f) does not implicate Alleyne v. United
    States, 
    133 S. Ct. 2151
    (2013), because it does not increase
    the statutory minimum sentence, and that the district court
    therefore properly engaged in judicial fact-finding in making
    that determination.
    The panel further held that the district court correctly
    assigned more than one criminal history point to the
    defendant because he was on probation when he committed
    the federal offense and because there was an intervening
    arrest between his two state convictions in 2000. Because
    these assignments render the defendant ineligible for safety
    valve relief, the panel concluded that any error in assigning
    a criminal history point for the defendant’s sentence of three
    years’ probation for his 2008 conviction was harmless.
    **
    This summary constitutes no part of the opinion of the court. It has
    been prepared by court staff for the convenience of the reader.
    UNITED STATES V. LIZZARAGA-CARRIZALES               3
    COUNSEL
    James Fife (argued), Federal Defenders of San Diego, Inc.,
    San Diego, California, for Defendant-Appellant.
    Laura E. Duffy, United States Attorney, Bruce R. Castetter,
    Chief, Appellate Section, Criminal Division, Daniel E. Zipp
    (argued), Assistant United States Attorney, San Diego,
    California, for Plaintiff-Appellee.
    OPINION
    CALLAHAN, Circuit Judge:
    Defendant-Appellant Roberto Ivan Lizarraga-Carrizales
    (“Lizarraga”) appeals his sentence imposed following his
    guilty plea to importation of heroin in violation of 21 U.S.C.
    §§ 952 and 960 (the “federal offense”). Lizarraga claims that
    the district court improperly engaged in judicial fact-finding
    in denying him safety valve relief from the mandatory
    minimum sentence and misapplied the Sentencing
    Guidelines. We hold that the safety valve determination
    under 18 U.S.C. § 3553(f) does not implicate Alleyne v.
    United States, 
    133 S. Ct. 2151
    (2013), because it does not
    increase the statutory minimum sentence. We further hold
    that the district court correctly assigned more than one
    criminal history point to Lizarraga because he was on
    probation when he committed the federal offense and because
    there was an intervening arrest between his two state
    convictions in 2000. Accordingly, Lizarraga was ineligible
    for safety valve relief, and we affirm.
    4       UNITED STATES V. LIZZARAGA-CARRIZALES
    I
    On October 10, 2008, Lizarraga drove into the United
    States at San Ysidro, California and was arrested after border
    officers found 7.25 kilograms of heroin hidden inside his
    vehicle. Lizarraga eventually pled guilty to drug importation
    in violation of 21 U.S.C. §§ 952 and 960. Because Lizarraga
    was convicted of importing a kilogram or more of heroin, the
    ten-year mandatory minimum sentence set by 21 U.S.C.
    § 960(b) was triggered, and Lizarraga was sentenced to 120
    months’ custody.
    In imposing this sentence, the district court denied
    Lizarraga’s request for safety valve relief from the mandatory
    minimum sentence under 18 U.S.C. § 3553(f), finding that
    Lizarraga had five criminal history points, four more than the
    one point permitted. The court assigned 1) two points for
    committing the federal offense while on probation for a 2008
    state conviction for driving on a suspended license, 2) one
    point for the 2008 conviction because it resulted in a sentence
    of three years’ probation, and 3) two points for his two state
    convictions in 2000 for misdemeanor burglary and petty theft.
    Lizarraga then timely appealed his sentence.
    As an initial matter, Lizarraga concedes that the district
    court properly assigned one criminal history point, but not
    two points, based on his 2000 state convictions. Safety valve
    relief under 18 U.S.C. § 3553(f) is available only if the
    defendant has no more than one criminal history point, so we
    must affirm the denial of safety valve relief if the district
    court properly assigned any of the other four criminal history
    points.
    UNITED STATES V. LIZZARAGA-CARRIZALES                 5
    II
    The constitutionality of a statute is a legal question we
    review de novo. United States v. Labrada-Bustamante,
    
    428 F.3d 1252
    , 1262 (9th Cir. 2005). A district court’s
    interpretation of the sentencing guidelines is reviewed de
    novo, the application of the guidelines to the facts of the case
    is reviewed for abuse of discretion, and factual findings are
    reviewed for clear error. United States v. Alba-Flores,
    
    577 F.3d 1104
    , 1107 (9th Cir. 2009) (citing United States v.
    Ferryman, 
    444 F.3d 1183
    , 1185 (9th Cir. 2006)). Our review
    of the district court’s denial of safety valve relief is
    deferential, and we must accept the district court’s factual
    findings unless we are “left with a definite and firm
    conviction that a mistake has been made.” 
    Id. (quoting Ferryman,
    444 F.3d at 1186).
    Lizarraga’s primary contention on appeal is that the facts
    underlying the safety valve determination must be submitted
    to a jury under Apprendi v. New Jersey, 
    530 U.S. 466
    (2000),
    and Alleyne v. United States, 
    133 S. Ct. 2151
    (2013). Under
    Apprendi and Alleyne, any fact that increases the statutory
    minimum or maximum sentence for an offense must be
    proven to a jury beyond a reasonable 
    doubt. 530 U.S. at 490
    ;
    133 S. Ct. at 2158. We have held, post-Apprendi, that
    statutory mandatory minimum sentences triggered by drug
    quantities found beyond a reasonable doubt by a jury or
    admitted by the defendant are constitutional. Labrada-
    
    Bustamante, 428 F.3d at 1262
    –63. In Labrada-Bustamante,
    we further held that the safety valve provision was
    constitutional, even though it required judicial fact-finding.
    
    Id. at 1263
    (“[The defendant] would have us hold that facts
    allowing a decreased sentence below [the] mandatory
    minimum must be found by a jury beyond a reasonable doubt
    6       UNITED STATES V. LIZZARAGA-CARRIZALES
    . . . . Neither Apprendi nor Blakely [v. Washington, 
    542 U.S. 296
    (2004),] compels such a holding.”).
    We have yet to decide in a published decision whether the
    safety valve determination implicates Alleyne, and only one
    circuit has done so. In United States v. Harakaly, 
    734 F.3d 88
    , 98 (1st Cir. 2013), cert. denied, 
    134 S. Ct. 1530
    (2014),
    the defendant argued that the district court violated Alleyne
    “by making a judicial finding, by a preponderance of the
    evidence, that he occupied a managerial role in the
    conspiracy, and thus was not eligible for safety-valve relief
    from the mandatory minimum sentence.” 
    Id. at 97.
    The First
    Circuit rejected this contention, explaining:
    Alleyne, by its terms, applies to facts that
    “increase[ ] the mandatory minimum.” [The
    defendant] suggests that Alleyne applies more
    broadly to any fact that “mandate[s] a greater
    punishment than a court would otherwise have
    had discretion to impose.” We do not read
    Alleyne so expansively. A fact that precludes
    safety-valve relief does not trigger or increase
    the mandatory minimum, but instead prohibits
    imposition of a sentence below a mandatory
    minimum already imposed as a result of the
    guilty plea or jury verdict.
    
    Id. at 97–98
    (citations omitted).
    Continuing, the Harakaly court discussed the implications
    of the defendant’s Alleyne argument and reiterated that the
    defendant has the burden of showing his entitlement to safety
    valve relief by the preponderance of the evidence:
    UNITED STATES V. LIZZARAGA-CARRIZALES              7
    [The defendant’s] formulation stretches
    Alleyne well beyond its actual holding; would
    invalidate Congress’s command that “the
    court find[ ] at sentencing” the relevant
    safety-valve factors, see 18 U.S.C. § 3553(f);
    and introduces problematic practical
    considerations. Before granting safety-valve
    relief, the sentencing judge must make five
    specific factual findings.         See 
    id. at §
    3553(f)(1)–(5). Under [the defendant’s]
    formulation, safety-valve relief could not be
    denied at sentencing unless the judge had
    previously submitted to the jury special
    verdict questions corresponding to the
    safety-valve factors, or, in the plea context,
    the guilty plea expressly recited the absence
    of one or more factors. This arrangement
    would put the burden on the government to
    prove that the safety valve is inapplicable, but
    it has long been held that “[t]he defendant
    plainly has the burden of proving, by a
    preponderance of the evidence, entitlement to
    relief under [§ ] 3553(f).” United States v.
    Miranda-Santiago, 
    96 F.3d 517
    , 529 n.25 (1st
    Cir. 1996). This allocation of the burden
    makes perfect sense; were it otherwise, the
    government would be required to disprove the
    safety-valve factors before the defendant ever
    expressed an intent to seek a sentencing
    reduction via the safety valve.
    
    Id. at 98;
    see also United States v. Mejia-Pimental, 
    477 F.3d 1100
    , 1104 (9th Cir. 2007) (“The defendant bears the burden
    of proving safety valve eligibility by a preponderance of the
    8       UNITED STATES V. LIZZARAGA-CARRIZALES
    evidence.”); United States v. Jimenez, 
    451 F.3d 97
    , 102–03
    (2d Cir. 2006) (defendant has burden to show eligibility for
    safety valve relief, as “[t]he safety valve certainly was not
    intended to impose on the government five additional
    elements that it must prove before triggering the imposition
    of a mandatory-minimum sentence”).
    Lizarraga may be correct that a district court does not, as
    a practical matter, impose a mandatory minimum sentence
    and then examine whether safety valve relief is available.
    However, the safety valve does not come into play until the
    sentencing judge determines that a mandatory minimum
    applies. We agree with the First Circuit that the denial of
    safety valve relief does not increase the statutory maximum
    or minimum such that Alleyne is implicated. This holding
    accords with our holding in Labrada-Bustamante that the
    safety valve determination did not violate Apprendi, despite
    its reliance on judicial fact-finding. 
    See 428 F.3d at 1262
    –63.
    Accordingly, the factual predicate for denying safety valve
    relief need not be proven to a jury. Such determinations,
    including whether a defendant was on probation at the time
    of his arrest for a federal offense and whether there was an
    intervening arrest between a defendant’s prior convictions for
    which he was sentenced on the same day, may be made by
    the judge by a preponderance of the evidence.
    We also reject Lizarraga’s contention that the district
    court violated Butler v. Curry, 
    528 F.3d 624
    (9th Cir. 2008),
    when it found that Lizarraga was on probation at the time he
    committed the federal offense. Butler held that, where a
    defendant’s probationary status increased the statutory
    maximum sentence for a crime, the question of whether he
    was on probation when he committed the crime was a fact
    that must be either admitted or found by a jury beyond a
    UNITED STATES V. LIZZARAGA-CARRIZALES                     9
    reasonable doubt. 
    Id. at 628–29,
    647–48. Butler is not
    implicated here because Lizarraga’s probationary status did
    not increase the statutory maximum or minimum sentence but
    rather barred safety valve relief.
    Accordingly, we hold that the district court properly
    engaged in judicial fact-finding in determining that Lizarraga
    was not eligible for safety valve relief.
    III
    Aside from his constitutional objections, Lizarraga argues
    that the district court misapplied the Guidelines in assigning
    him two criminal history points for committing the federal
    offense while on probation. The Guidelines assign a
    defendant two criminal history points if he commits a federal
    offense while under a criminal justice sentence, including a
    sentence of probation. U.S.S.G. § 4A1.1(d). Lizarraga was
    sentenced to three years’ probation on September 22, 2008
    for his 2008 conviction for driving on a suspended license,
    and he was still on probation when he committed the federal
    offense. However, Lizarraga obtained an order on July 30,
    2009, prior to his sentencing for the instant offense, which
    terminated his probation nunc pro tunc1 to 18 days, ending on
    October 7, 2008, three days before the instant offense.
    Lizarraga argues that the state court’s nunc pro tunc order
    meant that he could not be considered as being on probation
    at the time of the offense for federal sentencing purposes.
    This argument is unavailing, as we rejected an identical
    argument in United States v. Yepez, 
    704 F.3d 1087
    (9th Cir.
    1
    Black’s Law Dictionary (9th ed. 2009), defines “nunc pro tunc” as
    “having retroactive legal effect through a court’s inherent power.”
    10      UNITED STATES V. LIZZARAGA-CARRIZALES
    2012) (en banc) (per curiam), cert. denied, 
    133 S. Ct. 2040
    (2013). In Yepez, two defendants were arrested for drug
    importation and sought safety valve relief from the ten-year
    mandatory minimum sentence. They argued that they should
    not receive two criminal history points for committing their
    federal offenses while on probation, as they had obtained
    orders in state court after their arrests terminating their
    probation nunc pro tunc, effective the day before they
    committed the federal offenses. We rejected this contention,
    explaining that the Guidelines look to a defendant’s status “at
    the time he commits the federal crime”:
    That a state court later deemed the probation
    terminated before the federal crime was
    committed can have no effect on a
    defendant’s status at the moment he
    committed the federal crime.              That
    termination may have beneficial consequences
    for the defendant under state law, but a court
    cannot alter the historical fact that the
    defendant had the status of probationer when
    he committed his federal crime . . . . State
    courts cannot be given the authority to change
    a defendant’s federal sentence by issuing a
    ruling that alters history and the underlying
    facts.
    
    Id. at 1090–91;
    see also 
    Alba-Flores, 577 F.3d at 1111
    (when
    determining whether a federal defendant is under a criminal
    justice sentence, “[i]t is the actual situation at th[e] precise
    point in time” that the crime was committed that controls,
    “not the situation at some earlier or later point”). Here, too,
    the state court’s nunc pro tunc order cannot alter the fact that
    Lizarraga was actually on probation when he imported the
    UNITED STATES V. LIZZARAGA-CARRIZALES              11
    heroin in 2008. Accordingly, we hold that the district court
    properly assigned Lizarraga two criminal history points for
    committing a federal offense while serving a criminal justice
    sentence.
    IV
    Lizarraga also argues that the district court erred in
    assigning him two points for his two convictions in 2000 that
    were sentenced on the same day. Under the Guidelines, prior
    sentences are counted as a single sentence if they were
    imposed on the same day, unless the underlying offenses
    were separated by an intervening arrest.             U.S.S.G.
    § 4A1.2(a)(2). Lizarraga argues that the district court’s
    reliance on police computer printouts to find an intervening
    arrest violated Shepard v. United States, 
    544 U.S. 13
    (2005),
    and therefore there was insufficient evidence of an
    intervening arrest. As noted, he concedes that the assignment
    of one criminal history point for these convictions was
    proper.
    We approved a district court’s reliance on similar
    computer printouts at sentencing in United States v. Felix,
    
    561 F.3d 1036
    , 1042–43 (9th Cir. 2009). In Felix, a district
    court found that the defendant had a prior conviction which
    barred safety valve relief. We concluded 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 [the defendant] had
    a prior misdemeanor conviction.” 
    Id. at 1043.
    In so holding,
    we distinguished Shepard, which addressed whether a court
    could rely on certain documents to determine the type or
    character of a conviction under the modified categorical
    approach, not the fact of the conviction, explaining that “the
    12      UNITED STATES V. LIZZARAGA-CARRIZALES
    preponderance of the evidence is generally the appropriate
    standard for factual findings used for sentencing.” 
    Id. at 1045.
    Further, sentencing courts are not limited to evidence
    that would be admissible at trial. 
    Id. at 1042
    (citing, inter
    alia, U.S.S.G. § 6A1.3 cmt.; United States v. Marin-Cuevas,
    
    147 F.3d 889
    (9th Cir. 1998)).
    In light of Felix and our holding that the safety valve
    determination does not implicate Alleyne, the district court
    was entitled to rely on police computer printouts from the San
    Diego Sheriff’s Department. These printouts, the charging
    documents for the 2000 offenses, and the presentence report
    for the federal offense all support the district court’s finding
    of an intervening arrest. They show that: 1) Lizarraga
    committed misdemeanor burglary and petty theft at a Target
    store in Chula Vista, California on August 16, 2000;
    2) Lizarraga was arraigned in that case on August 18, 2000
    and then released on his own recognizance; and 3) Lizarraga
    committed a second offense, petty theft, at a different address
    in Chula Vista on August 19, 2000. In light of this evidence,
    and Lizarraga’s failure to offer evidence to the contrary, the
    district court’s assignment of two points for his 2000
    convictions was proper.
    V
    Lizarraga also argues that the district court erred in
    assigning him one criminal history point for having received
    a term of probation longer than a year. Although Lizarraga
    was sentenced to three years’ probation for his conviction for
    driving on a suspended license in 2008, he had only served
    311 days when he successfully petitioned the state court to
    terminate his probation nunc pro tunc to 18 days on July 30,
    2009.
    UNITED STATES V. LIZZARAGA-CARRIZALES                 13
    Section 4A1.2(c) of the Guidelines states that a defendant
    may only receive a criminal history point for a conviction
    resulting in a sentence of probation if the sentence was for
    more than one year. We explained in United States v. Mejia,
    
    559 F.3d 1113
    , 1116 (9th Cir. 2009), that the measure of the
    “term of probation” in § 4A1.2(c) is the time actually served
    on probation, not the sentence initially imposed, as “a term of
    probation means a term of actual probation.” However, we
    later explained in 
    Yepez, 704 F.3d at 1090
    –91, that with
    respect to a probationary status, it is the defendant’s status on
    the day of the federal offense that controls, even if the
    probation is later terminated nunc pro tunc. Further,
    Lizarraga may have obtained the termination of his probation
    in hope of affecting his sentence for the federal offense, thus
    risking an “odor of gaming the federal sentencing system.”
    See 
    Alba-Flores, 577 F.3d at 1111
    .
    Nonetheless, we need not resolve any possible tension
    between Mejia and Yepez because we have already held that
    the district court properly assigned four criminal history
    points which render Lizarraga ineligible for safety valve
    relief. Accordingly, even assuming the district court erred in
    assigning a point for Lizarraga’s sentence of three years’
    probation, such error was harmless.
    VI
    The district court properly engaged in judicial fact-finding
    in making its safety valve determination, because the denial
    of safety valve relief does not increase the statutory minimum
    sentence. Further, the district court 1) correctly assigned
    Lizarraga two criminal history points for committing the
    federal offense while on probation, and 2) correctly assigned
    two criminal history points for Lizarraga’s 2000 convictions.
    14      UNITED STATES V. LIZZARAGA-CARRIZALES
    Because these assignments render Lizarraga ineligible for
    safety valve relief, any error in assigning a criminal history
    point for Lizarraga’s sentence of three years’ probation for
    his 2008 conviction was harmless. Accordingly, Lizarraga’s
    sentence is AFFIRMED.