United States v. Cirino

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 03-10711
Plaintiff-Appellee,
v.  D.C. No.
CR-03-00176-RLH
HECTOR CIRINO,
OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the District of Nevada
Roger L. Hunt, District Judge, Presiding
Argued and Submitted
November 2, 2004—San Francisco, California
Filed August 15, 2005
Before: Betty B. Fletcher, Sidney R. Thomas, and
Carlos T. Bea, Circuit Judges.
Per Curiam Opinion
10639
UNITED STATES v. CIRINO 10641
COUNSEL
Jason Carr, AFPD, Las Vegas, Nevada, for appellant Hector
Cirino.
10642 UNITED STATES v. CIRINO
Timothy S. Vasquez, AUSA, Las Vegas, Nevada, for the
appellee.
OPINION
PER CURIAM:
Defendant-Appellant Hector Cirino appeals the sentence
imposed by the district court, which included imposition of a
career-offender sentence based on prior felony convictions
from crimes committed in Puerto Rico. Specifically, Cirino
contends that because Puerto Rico is not a state, his prior
Puerto Rican felony convictions are not “prior felony convic-
tions of . . . a crime of violence” “under federal or state law”
for purposes of the Sentencing Guidelines’ “career offender”
guideline. U.S. SENTENCING GUIDELINES MANUAL § 4B1.1(a)
and § 4B1.2(a) (2002). We have jurisdiction pursuant to 28
U.S.C. § 1291 and 18 U.S.C. § 3742(a). We hold that prior
Puerto Rican convictions may constitute “prior felony convic-
tions” for purposes of Guideline § 4B1.1(a). Nevertheless, we
will follow procedures set forth in United States v. Ameline,
409 F.3d 1073 (9th Cir. 2005) (en banc), to determine
whether a limited remand is appropriate in this case.
I.
On April 1, 2003, Cirino and co-defendant Ivan Gonzalez-
Corporan robbed a Silver State Bank in Las Vegas, Nevada.
They were soon arrested, and after a three-day trial, a jury
convicted both men of armed bank robbery, possession of a
firearm during and in relation to a crime of violence, and aid-
ing and abetting. The district court judge then sentenced both
men as “career offenders” under the Sentencing Guidelines.
In sentencing Cirino, the court relied on three prior career-
offender predicate convictions, two of which were from the
Commonwealth of Puerto Rico. Cirino was then sentenced to
UNITED STATES v. CIRINO 10643
276 months for the armed robbery conviction and 84 months
for the firearm-possession conviction, to be served consecu-
tively.
The sole issue Cirino raises on appeal is the applicability of
his Puerto Rican Commonwealth convictions in the determi-
nation of his sentence as a “career offender” for the current
offense.
II.
The district court’s interpretation and application of the
Sentencing Guidelines are reviewed de novo. United States v.
Bynum, 327 F.3d 986, 993 (9th Cir. 2003). Specifically, the
district court’s interpretation of the Guidelines’ career
offender provisions is also reviewed de novo. United States v.
Shumate, 329 F.3d 1026, 1028 (9th Cir. 2003).1
[1] Under the now-advisory Guidelines, an individual may
be sentenced as a career offender if he or she was at least
eighteen years old at the time he or she committed the instant
offense, the offense is a felony that qualifies as a crime of vio-
lence or controlled substance offense, and the offender has
two or more prior felony convictions for crimes of violence
or controlled substance offenses. U.S. SENTENCING GUIDELINES
MANUAL § 4B1.1(a) (Nov. 2002).2 Guideline § 4B1.2(a)
1
As district courts must consider the Guidelines in sentencing, albeit as
advisory, United States v. Booker, 125 S. Ct. 738, 767 (2005), we reach
the issue of whether the district court correctly interpreted and correctly
applied the Guidelines.
2
Guideline § 4B1.1 was promulgated following the enactment of the
Sentencing Reform Act of 1984. Specifically, 28 U.S.C. § 994(h) provided
that recidivists would receive sentences “at or near the maximum term
authorized for categories of defendants” where the defendant is at least
eighteen years old and “has been convicted of a felony” that is a crime of
violence or a violation of section 401 of the Controlled Substances Act,
21 U.S.C. § 841, sections 1002(a), 1005, and 1009 of the Controlled Sub-
stances Import and Export Act, 21 U.S.C. §§ 952(a), 955, and 959, or the
Maritime Drug Law Enforcement Act, 46 U.S.C. App. § 1901 et seq., and
“has previously been convicted of two or more [such] felonies.” 28 U.S.C.
§ 994(h). The text of the statute contains no jurisdictional limitation on the
prior felonies that may be used to enhance sentences under § 994(h).
10644 UNITED STATES v. CIRINO
defines a “crime of violence” for purposes of § 4B1.1 as “any
offense under federal or state law, punishable by imprison-
ment for a term exceeding one year” that involves the use,
attempted use, or threatened use of physical force against the
person of another; that is burglary of a dwelling, arson, or
extortion; or that involves the use of explosives or a serious
potential risk of physical injury to another. Id. § 4B1.2(a).
Guideline § 4B1.2 also incorporates the definitions and
instructions for computing criminal histories provided in
§ 4A1.2. Id. § 4B1.2 cmt. n.3. Guideline § 4A1.2(o), like
§ 4B1.2(a), states that a felony offense includes “any federal,
state, or local offense punishable by . . . a term of imprison-
ment exceeding one year,” while Guideline § 4A1.2(h)
expressly excludes “foreign convictions.”
[2] The issue of whether Puerto Rican convictions may be
counted as predicate convictions for purposes of determining
career offender status is a novel one in the Ninth Circuit.
However, two cases from the First Circuit, which has appel-
late jurisdiction over cases from the District of Puerto Rico,
strongly suggest that Puerto Rican convictions may be taken
into account. See United States v. Torres-Rosa, 209 F.3d 4
(2000); United States v. Morales-Diaz, 925 F.2d 535 (1991).
In both cases, the defendants raised the issue for the first time
on appeal. The First Circuit thus reviewed the sentences for
plain error. Torres-Rosa, 209 F.3d at 8; Morales-Diaz, 925
F.2d 540. We nevertheless find the First Circuit’s reasoning
in these cases persuasive. In rejecting the notion that Puerto
Rican convictions should not be counted as prior felony
offenses, the First Circuit stated:
[The defendant in Morales-Diaz] “simply asserts the
syllogism that (1) to qualify under the career
offender guideline, the prior felony offenses must be
state or federal offenses; (2) Puerto Rico is not a
state; and (3) therefore his Puerto Rico conviction is
not a prior felony offense under the career offender
guideline.” We found [in Morales-Diaz] that this syl-
UNITED STATES v. CIRINO 10645
logism “completely ignores the body of case law rec-
ognizing that Congress has accorded the
Commonwealth of Puerto Rico ‘the degree of auton-
omy and independence normally associated with
States of the Union. . . . .’ ” Accordingly, we con-
cluded that, because the appellant had not shown
“that the Sentencing Commission meant to exclude
felony convictions in Puerto Rico Commonwealth
Courts for enhancement purposes,” no plain error
inhered.
Torres-Rosa, 209 F.3d at 8 (citing Morales-Diaz, 925 F.2d at
540) (citations omitted) (second alteration in original); cf.
United States v. Acosta-Martinez, 252 F.3d 13, 17-20 (1st Cir.
2001) (acknowledging that Puerto Rico is technically not a
state, yet holding that the Federal Death Penalty Act applied
to crimes committed in Puerto Rico). The First Circuit also
routinely has upheld career offender sentences supported by
Puerto Rican convictions. United States v. Colon-Torres, 382
F.3d 76, 81 n.5 (1st Cir. 2004) (career offender sentence
imposed based on three Puerto Rican convictions, without the
“state” issue presented); United States v. De Jesus Mateo, 373
F.3d 70, 73-74 (1st Cir. 2004) (same).3
[3] Indeed, the First Circuit has treated Puerto Rico as a
“state” in numerous other contexts. See, e.g., Fred v. Roque,
916 F.2d 37, 38-44 (1st Cir. 1990) (“state” for purposes of
sovereign immunity); United States v. Lopez Andino, 831
3
We note without deciding that Cirino’s argument presumably would
apply with equal force to convictions under the laws of the District of
Columbia or the Virgin Islands, neither of which are states. But the D.C.
Circuit and the Third Circuit, which respectively have appellate jurisdic-
tion of appeals from the District of Columbia and the District of the Virgin
Islands, have likewise upheld enhanced sentences in cases wherein the
defendants were sentenced as career offenders pursuant to U.S.S.G.
§§ 4B1.1-2 on the basis of prior convictions under the laws of those dis-
tricts. See, e.g., United States v. Thomas, 361 F.3d 653 (D.C. Cir. 2004);
United States v. John, 936 F.2d 764 (3d Cir. 1991).
10646 UNITED STATES v. CIRINO
F.2d 1164, 1168 (1st Cir. 1987) (“state” for purposes of dou-
ble jeopardy); Cordova & Simonpietri Ins. v. Chase Manhat-
tan Bank, 649 F.2d 36, 38 (1st Cir. 1981) (“state” for
purposes of Sherman Act); see also Mangual v. Rotger-Sabat,
317 F.3d 45, 53 n.2 (1st Cir. 2003) (residents of Puerto Rico
are protected by the First Amendment). Congress, too, has
determined that Puerto Rico is to be treated as a “state” for
purposes of diversity jurisdiction. 28 U.S.C. § 1332(e); see
also U.S.I. Properties Corp. v. M.D. Constr. Co., 230 F.3d
489, 499-500 (1st Cir. 2000) (as with states, diversity jurisdic-
tion does not exist when Puerto Rico itself is a party). Finally,
the Supreme Court has held that the test for federal preemp-
tion of Puerto Rican statutes is the same as that for state stat-
utes. Puerto Rico Dept. of Consumer Affairs v. Isla Petroleum
Corp., 485 U.S. 495, 499 (1988).
[4] Likewise, as matter of policy, we have good reason to
recognize Puerto Rican Commonwealth convictions on a par
with convictions from the fifty states. The procedural protec-
tions afforded criminal defendants in the United States Con-
stitution have been incorporated nearly verbatim into the
Puerto Rican Constitution. P.R. CONST. art. II, §§ 7, 10, 11.
Habeas proceedings are available in Puerto Rican courts to
challenge convictions alleged to be in violation of the United
States Constitution. 34 P.R. LAWS ANN. AP. II, R. 192.1
(2001). Direct review of such convictions is available in the
United States Supreme Court by writ of certiorari. 48 U.S.C.
§ 864. Further, persons challenging a Puerto Rican conviction
on the grounds that the conviction violates the United States
Constitution may petition the federal District Court for the
District of Puerto Rico for a federal writ of habeas corpus.
Cruz-Sanchez v. Rivera-Cordero, 835 F.2d 947, 948 (1st Cir.
1987); see also Figueroa v. Rivera, 147 F.3d 77, 81 (1st Cir.
1998) (holding that § 1983 action was barred under Heck v.
Humphrey, 512 U.S. 477 (1994), as habeas is the exclusive
means by which to challenge collaterally an unconstitutional
Puerto Rican conviction).
UNITED STATES v. CIRINO 10647
[5] In short, we see no legal or policy reason to treat Puerto
Rican Commonwealth convictions any differently from the
way we treat state convictions. We hold that it was not error
for the district court to count Cirino’s Puerto Rican convic-
tions as “prior felony convictions” in applying Guideline
§ 4B1.1(a). In other words, we hold that Puerto Rico may be
considered a “state” when applying Guideline § 4B1.1(a).
III.
[6] Although we find no error in the district court’s use of
Cirino’s past Puerto Rican convictions in enhancing his sen-
tence, we may remand this case for re-sentencing in light of
United States v. Booker, 125 S. Ct. 738 (2005). We have
recently concluded that even absent a Sixth Amendment vio-
lation, “either the defendant or the government may raise the
nonconstitutional error that a sentence was erroneously
imposed under guidelines believed to be mandatory.” United
States v. Ameline, 409 F.3d 1073, 1084 (9th Cir. 2005) (en
banc). We have also concluded that the “limited remand”
approach outlined in Ameline is “proper in all pending direct
criminal appeals involving unpreserved Booker error, whether
constitutional or nonconstitutional.” United States v. Moreno-
Hernandez, No. 03-30387, 2005 WL 1560269, at *9 (9th Cir.
July 5, 2005) (emphasis in original). We have queried the par-
ties as to whether a limited remand is sought. Cirino has
responded in the affirmative. Because we agree with Cirino
that we are unable to determine whether the district court
would have imposed the materially same sentence had it
known the guidelines were advisory, we will remand Cirino’s
sentence in accordance with Ameline. Id.
AFFIRMED IN PART AND REMANDED.