United States v. Diaz-Argueta ( 2006 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 05-10224
Plaintiff-Appellee, D.C. No.
v.  CR-04-00094-HDM/
ANIBAL JOSE DIAZ-ARGUETA, RAM
Defendant-Appellant.
 OPINION
Appeal from the United States District Court
for the District of Nevada
Howard D. McKibben, District Judge, Presiding
Argued and Submitted
January 13, 2006—San Francisco, California
Filed May 16, 2006
Before: John T. Noonan, A. Wallace Tashima, and
William A. Fletcher, Circuit Judges.
Opinion by Judge Noonan
5319
UNITED STATES v. DIAZ-ARGUETA 5321
COUNSEL
Cynthia S. Hahn, Reno, Nevada, for the defendant-appellant.
R. Don Gifford, Assistant United States Attorney, for the
plaintiff-appellee.
OPINION
NOONAN, Circuit Judge:
Anibal Jose Diaz-Argueta (Diaz) appeals the sentence he
received from the district court after pleading guilty to ille-
5322 UNITED STATES v. DIAZ-ARGUETA
gally reentering the United States following deportation in
violation of 8 U.S.C. § 1326. We vacate the sentence of the
district court and remand for resentencing in accordance with
18 U.S.C. § 3553(a).
PROCEDURE
Diaz was indicted for having been an alien found in the
United States on June 29, 2004 after having been deported on
March 13, 1996. He pleaded guilty on September 7, 2004.
The Pre-Sentence Report reported that he had been convicted
in California in 1995 for assault with a firearm. In support, the
government submitted several documents from the Superior
Court of the State of California, County of San Bernardino.
After three sentencing hearings, the district court concluded
from the state court records that Diaz had pled guilty to
assault with a firearm, a felony, and that he had been con-
victed of that offense. The district court sentenced him at the
lower end of the Guidelines to three years and ten months’
imprisonment.
Diaz appeals his sentence.
ANALYSIS
[1] The State Crime. Diaz points to the apparent mildness
of his state sentence — 109 days in the San Bernardino
County Jail and two years probation — and argues that he
was convicted of a misdemeanor. The minute order of the
state court, relied on by the federal district court, is not a judi-
cial record that can be relied upon to prove the contrary. See
Shepard v. United States, 544 U.S. 13, 125 S. Ct. 1254, 1259-
60 (2005). Diaz’s argument would have force if it were not
for the peculiarities of the statute under which he was con-
victed. The statute provides:
§ 245. Assault with deadly weapon or force likely
to produce great bodily injury; punishment
UNITED STATES v. DIAZ-ARGUETA 5323
(a)(2) Any person who commits an assault upon
the person of another with a firearm shall be pun-
ished by imprisonment in the state prison for two,
three, or four years, or in a county jail for not less
than six months and not exceeding one year, or by
both a fine not exceeding ten thousand dollars
($10,000) and imprisonment.
Cal. Penal Code §245(a)(2) (West 1996). In the parlance of
California law enforcement, a violation of the statute is a
wobbler that may be punished either as a felony or as a misde-
meanor. As the United States Supreme Court explains,
“Under California law, a ‘wobbler’ is presumptively a felony
and remains a felony except when the discretion is actually
exercised to make the crime a misdemeanor.” Ewing v. Cali-
fornia, 538 U.S. 11, 16 (2003) (internal quotation marks omit-
ted).
[2] California Penal Code § 17(b) provides two ways in
which a court may exercise such discretion. This statute dis-
tinguishes between misdemeanor and felony convictions
under wobbler statutes in the following manner:
When a crime is punishable, in the discretion of the
court, by imprisonment in the state prison or by fine
or imprisonment in the county jail, it is a misdemea-
nor for all purposes under the following circum-
stances:
(1) After a judgment imposing a punish-
ment other than imprisonment in state
prison.
***
(3) When the court grants probation to a
defendant without imposition of sentence
and at the time of granting probation, or on
5324 UNITED STATES v. DIAZ-ARGUETA
application of the defendant or probation
officer thereafter, the court declares the
offense to be a misdemeanor.
Cal. Penal Code § 17(b) (West 1996).
[3] At oral argument of this appeal, counsel for Diaz stated
that “there was never a judgment entered.” Accordingly, the
first method of exercising discretion to reduce the felony to a
misdemeanor was not exercised by the state court. There is
nothing in the record to show that the second method was
used. The presumption that the conviction was of a felony has
not been overcome. See Garcia-Lopez v. Ashcroft, 334 F.3d
840, 844-45 (9th Cir. 2003); United States v. Qualls, 172 F.3d
1136, 1137-38 (9th Cir. 1999); United States v. Robinson, 967
F.2d 287, 292-93 (9th Cir. 1992). We, therefore, uphold the
district court’s determination, albeit on a basis different from
that on which it relied. Cf. United States v. Cortez-Arias, 403
F.3d 1111, 1114 n.7 (9th Cir. 2005), as amended, 425 F.3d
547 (9th Cir. 2005).
Diaz objects that the Terms and Conditions of Probation set
by the state court do not show him forbidden to possess fire-
arms as a felon. But he was forbidden to do so by operation
of law. See Cal. Penal Code § 12021(c)(1) (West 1996).
[4] The State Crime As A Crime Of Violence. Diaz argues
that assault with a firearm is not a crime of violence because
he received a sentence of less than one year. He reaches this
conclusion by looking at the definition of “aggravated felony”
in 8 U.S.C. § 1101(a)(43)(F). This argument supposes that the
district court in sentencing him referred to U.S.S.G.
§ 2L1.2(b)(1)(C), which provides for an enhancement for an
aggravated felony and which refers back to 8 U.S.C.
§ 1101(a)(43)(F) for the definition of a crime of violence to
be used in determining an aggravated felony.
[5] The argument is ingenious but mistaken. Diaz was sen-
tenced by reference to U.S.S.G. § 2L1.2(b)(1)(A)(ii). We have
UNITED STATES v. DIAZ-ARGUETA 5325
already held that a crime of violence need not be an aggra-
vated felony to qualify for the 16-level enhancement under
this guideline. See United States v. Pimentel-Flores, 339 F.3d
959, 960 (9th Cir. 2003).
Diaz cites a footnote in Leocal v. Ashcroft, 543 U.S. 1, 11
n.8 (2004), holding that an alien’s DUI conviction did not
qualify as a “crime of violence” under 18 U.S.C. § 16 and was
therefore not an aggravated felony under 8 U.S.C.
§ 1101(a)(43)(F). Leocal does not touch on U.S.S.G.
§ 2L1.2(b)(l)(A)(ii) and so does not undermine Pimentel-
Flores. The Guidelines in that case and ours are focused not
on an aggravated felony but on a crime of violence.
The Vitality of Almendarez-Torres. Diaz invites us not to
rely on Almendarez-Torres v. United States, 523 U.S. 224
(1998), holding that the government is not required to charge
as a factor in the indictment every fact increasing the penalty.
We have no reason to question Almendarez-Torres, which is
favorably cited in Shepard. See United States v. Lopez-Torres,
___ F.3d ___, No. 05-10392, 2006 WL 1072180, at *3 (9th
Cir. Apr. 25, 2006) (noting that “[w]e have repeatedly
rejected [the] argument” “that we should decline to follow the
Supreme Court’s holding in Almendarez-Torres”).
The Sentencing Factors Set Out In 18 U.S.C. § 3553(a).
Invoking United States v. Booker, 543 U.S. 220, 260-61
(2005), Diaz argues that his sentence should be reviewed for
unreasonableness and in that light objects to the court’s fail-
ure to take into account all of the considerations set out to
guide sentencing in 18 U.S.C. § 3553(a). Instead, as in the old
mandatory Guidelines days, the court simply turned to the
Guidelines and used the sentencing range provided there.
The sentencing statute reads:
§ 3553. Imposition of a sentence
5326 UNITED STATES v. DIAZ-ARGUETA
(a) Factors to be considered in impos-
ing a sentence. — The court shall impose
a sentence sufficient, but not greater than
necessary, to comply with the purposes set
forth in paragraph (2) of this subsection.
The court, in determining the particular
sentence to be imposed, shall consider —
(1) the nature and circumstances of the
offense and the history and characteristics
of the defendant;
(2) the need for the sentence imposed —
(A) to reflect the seriousness of the
offense, to promote respect for the law,
and to provide just punishment for the
offense;
(B) to afford adequate deterrence to
criminal conduct;
(C) to protect the public from further
crimes of the defendant; and
(D) to provide the defendant with
needed educational or vocational train-
ing, medical care, or other correctional
treatment in the most effective manner;
(3) the kinds of sentences available;
(4) the kinds of sentence and the sentenc-
ing range established for —
(A) the applicable category of offense
committed by the applicable category of
UNITED STATES v. DIAZ-ARGUETA 5327
defendant as set forth in the guidelines
—
(i) issued by the Sentencing Com-
mission pursuant to section 994(a)(1)
of title 28, United States Code, subject
to any amendments made to such
guidelines by act of Congress (regard-
less of whether such amendments have
yet to be incorporated by the Sentenc-
ing Commission into amendments
issued under section 994(p) of title
28); and
(ii) that, except as provided in sec-
tion 3742(g), are in effect on the date
the defendant is sentenced; or
(B) in the case of a violation of proba-
tion or supervised release, the applicable
guidelines or policy statements issued by
the Sentencing Commission pursuant to
section 994(a)(3) of title 28, United
States Code, taking into account any
amendments made to such guidelines or
policy statements by act of Congress
(regardless of whether such amendments
have yet to be incorporated by the Sen-
tencing Commission into amendments
issued under section 994(p) of title 28);
(5) any pertinent policy statement —
(A) issued by the Sentencing Commis-
sion pursuant to section 994(a)(2) of title
28, United States Code, subject to any
amendments made to such policy state-
ment by act of Congress (regardless of
5328 UNITED STATES v. DIAZ-ARGUETA
whether such amendments have yet to be
incorporated by the Sentencing Commis-
sion into amendments issued under sec-
tion 994(p) of title 28); and
(B) that, except as provided in section
3742(g), is in effect on the date the
defendant is sentenced;
(6) the need to avoid unwarranted sen-
tence disparities among defendants with
similar records who have been found guilty
of similar conduct; and
(7) the need to provide restitution to any
victims of the offense.
18 U.S.C. § 3553(a) (West Supp. 2006).
In this case, the district court started out properly by calcu-
lating on the record the applicable Guideline range. The dis-
trict court then stated that it had “carefully considered the
Presentence Report and the comments of counsel, and the
memorandum filed on behalf of the defendant.” The district
court, however, did not explicitly address any of the factors
listed in § 3553(a), other than the Guidelines. In fact, other
than using the Guidelines, the court did not give any reason
for its sentence.
[6] Section 3553(a) is mandatory. See Booker, 543 U.S. at
261 (“Section 3553(a) remains in effect, and sets forth numer-
ous factors that guide sentencing.”). Its terms are not met by
reciting a number taken from a table of the Sentencing Guide-
lines that are now merely advisory. There is no presumption
that such a number has taken into account all of the relevant
circumstances that the statute states that the court “shall con-
sider.” See United States v. Zavala, ___ F.3d ___, No. 05-
30120, 2006 WL 914528, at *5 (9th Cir. Mar. 8, 2006) (“If
UNITED STATES v. DIAZ-ARGUETA 5329
a district court . . . makes the Guideline calculation the pre-
sumptive sentence, it will commit legal error by misapplying
§ 3553(a), which now makes the Guideline a, but only a, fac-
tor to be considered.”).
[7] To comply with Booker’s requirement that the district
court “sufficiently consider” the factors listed in § 3553(a)
“does not necessitate a specific articulation of each factor sep-
arately, but rather a showing that the district court considered
the statutorily-designated factors in imposing a sentence.”
United States v. Knows His Gun, 438 F.3d 913, 918 (9th Cir.
2006). No such showing occurred in this case.
Sentencing is a difficult art. It is easy to make it mechani-
cal. It is impossible to make it scientific in the sense of an
hypothesis validated or invalidated by experiment. It is, how-
ever, an act of reason as the judge looking at this particular
person and the circumstances of the crime that this particular
person has committed makes a judgment following the pre-
scriptions of the statute. This act remains to be done.
[8] Accordingly, the sentence of the district court is
VACATED and the case is REMANDED for resentencing.