United States v. Saturnino Pineda-Flores

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT JUL 29 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 14-50256
Plaintiff - Appellee, D.C. No. 3:14-cr-00324-BEN-1
v.
MEMORANDUM*
SATURNINO PINEDA-FLORES, AKA
Carlos Plancarte-Flores,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
Roger T. Benitez, District Judge, Presiding
Argued and Submitted July 8, 2015
Pasadena, California
Before: W. FLETCHER, PAEZ, and BERZON, Circuit Judges.
Saturnino Pineda-Flores appeals the district court’s sentence of thirty-six
months imprisonment followed by thirty-six months of supervised release, under 8
U.S.C. § 1326. Pineda-Flores argues that the district court committed plain error in
applying a twelve-level enhancement under U.S. Sentencing Guidelines (U.S.S.G.)
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
§ 2L1.2(b)(1) for a prior “drug trafficking offense.” We vacate the sentence and
remand for further proceedings consistent with this memorandum.
1. The government argues that the doctrines of waiver, invited error, and
judicial admission bar this appeal. These arguments lack merit. At sentencing,
Pineda-Flores failed to object to the enhancement and submitted a document that
applied the enhancement in a similar fashion as the presentence report (“PSR”) had
recommended. The record, however, fails to demonstrate what analytical route
Pineda-Flores’s counsel took to determine that the prior state conviction could
trigger the enhancement. We cannot conclude that Pineda-Flores made a tactical
decision not to object. See United States v. Jimenez, 258 F.3d 1120, 1123–24 (9th
Cir. 2001) (“A district court’s legal determinations are not immunized from
appellate review simply because a defendant, present at a hearing where that
determination is made, mistakenly agrees with the court.” (footnote omitted)). Nor
did Pineda-Flores make a judicial admission of fact. Cf. Am. Title Ins. Co. v.
Lacelaw Corp., 861 F.2d 224, 226 (9th Cir. 1988). Thus, we exercise our
discretion to review for plain error. See United States v. Castillo-Marin, 684 F.3d
914, 918 (9th Cir. 2012).
2. The district court clearly erred to the extent that it based its sentence on
the PSR’s characterization of Pineda-Flores’s prior conviction without undertaking
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the three-step analysis set out in Taylor v. United States, 495 U.S. 575 (1990), and
its progeny. See Castillo-Marin, 684 F.3d at 920–21; Descamps v. United States,
133 S. Ct. 2276, 2283–86 (2013). A conviction under California Health and Safety
Code section 11379(a) does not qualify categorically as a drug trafficking offense
under U.S.S.G. § 2L1.2(b)(1). See United States v. Navidad–Marcos, 367 F.3d
903, 907–08 (9th Cir. 2004), overruled on other grounds by United States v.
Snellenberger, 548 F.3d 699, 702 (9th Cir. 2008) (en banc) (per curiam). The
district court did not explain how it nonetheless arrived at its conclusion that
Pineda-Flores’s prior conviction qualified as a drug trafficking offense, so that his
base offense level should be “increased by 12 levels under 2L1.2(b)(1), . . . .”
The district court may have relied on the PSR’s factual description of the
prior offense. If so, it clearly erred. That factual description did not indicate
whether Pineda-Flores had been convicted of the elements of a drug trafficking
offense. See Castillo-Marin, 684 F.3d at 919–20. “[A] sentencing court may not
turn to the PSR for a narrative description of the underlying facts of the prior
conviction.” United States v. Gonzalez-Aparicio, 663 F.3d 419, 432–433 (9th Cir.
2011). Pineda-Flores’s PSR referred to the facts and the charged counts
underlying a prior conviction, but neither facts nor charges prove of what a
defendant was convicted. In Gonzalez-Aparicio, by contrast, the PSR “did more
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than provide a mere factual narrative. It instead evidently quoted from state court
documentation [describing the elements to which a defendant had pleaded guilty].”
Id. at 433. Here, the PSR did not “evidently quote[] from state court
documentation,” id. And, while the PSR referenced, in general, “court
documents,” it did not link those documents to the ultimate elements of conviction.
Thus, the rule that “a sentencing court may not turn to the PSR for a
narrative description of the underlying facts of the prior conviction,” id. at 432–33,
applies here. “[T]o the extent the district court relied on the PSR’s factual
description of [the] prior offense . . . , it plainly erred,” Castillo-Marin, 684 F.3d at
920 (footnotes omitted). To the extent the court did not, it had no basis for its
conclusion that the conviction qualified as a drug trafficking offense, as the crime
in question did not qualify categorically as such an offense.
3. The district court’s clear error affected Pineda-Flores’s substantial rights
and seriously affected the fairness of the sentencing proceeding. See id. at 922;
United States v. Vargem, 747 F.3d 724, 729 (9th Cir. 2014). The statute of Pineda-
Flores’s prior conviction is overbroad under the categorical approach. And the
district court did not determine whether the statute was divisible regarding the
conduct it proscribed, e.g., transporting drugs for personal use as opposed to
selling drugs. See Descamps, 133 S. Ct. at 2285. Even assuming divisibility, an
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issue we do not decide, the record as it stands does not support application of the
modified categorical approach. Thus, the district court committed plain error that
affected Pineda-Flores’s substantial rights and the fairness of the proceeding. See
Castillo-Marin, 684 F.3d at 922–23, 927. We vacate the sentence, and remand for
further proceedings consistent with this disposition.1
4. In light of the above disposition, we decline to take judicial notice of the
documents the government presents for the first time on appeal. If warranted, the
government may present these documents to the district court on remand. See
United States v. Matthews, 278 F.3d 880, 885–86 (9th Cir. 2002) (en banc).
SENTENCE VACATED AND REMANDED.
1
Because we vacate the sentence and remand on this ground, we need not
address Pineda-Flores’s arguments that his sentence was procedurally and
substantively unreasonable. See id. at 927 n. 13.
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