United States v. Mitchell Hooks ( 2019 )

FILED
NOT FOR PUBLICATION
APR 23 2019
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 18-10360
Plaintiff-Appellee, D.C. No.
2:17-cr-00188-HDM-VCF-1
v.
MITCHELL ANTHONY HOOKS, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the District of Nevada
Howard D. McKibben, District Judge, Presiding
Submitted April 19, 2019**
San Francisco, California
Before: BEA and N.R. SMITH, Circuit Judges, and MÁRQUEZ,*** District Judge.
Mitchell Hooks appeals the district court’s judgment sentencing him to a 32-
month prison sentence for being a felon in possession of a firearm, in violation of
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Rosemary Márquez, United States District Judge for
the District of Arizona, sitting by designation.
18 U.S.C. § 922(g). We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C.
§ 3742, and we affirm.
1. The district court did not err in applying a base offense level of 20 pursuant
to § 2K2.1(a)(4)(A) of the United States Sentencing Guidelines. We review de
novo whether a conviction qualifies as a “controlled substance offense” under the
Sentencing Guidelines,1 Cabantac v. Holder, 736 F.3d 787, 792 (9th Cir. 2013)
(per curiam), but we must “uphold the district court’s factual findings used to
support a sentencing enhancement absent clear error.” United States v. Mattarolo,
209 F.3d 1153, 1159 (9th Cir. 2000). There is no clear error here, because there are
judicially noticeable documents in the record—e.g., Hooks’s state plea agreement
and the charging document—on which the court could rely and which clearly
establish that the possession of cocaine was an element of Hooks’s state law
1
Hooks does not dispute that Nevada Revised Statute § 453.337 is divisible
as to controlled substance, and that the district court could therefore apply the
modified categorical approach of determining whether his state law felony
conviction constitutes a “controlled substance offense.” See Descamps v. United
States, 570 U.S. 254, 257 (2013).
2
conviction.2 See Reina-Rodriguez v. United States, 655 F.3d 1182, 1191 (9th Cir.
2011) (quoting Shepard v. United States, 544 U.S. 13, 16 (2005)).
2. The district court did not err in considering documents produced by a
probation officer rather than a government attorney. Courts are statutorily
permitted to consider a probation officer’s calculations of the applicable sentencing
guideline ranges,3 and they are likewise permitted to consider judicially-reviewable
documentation provided by the same probation officer in support of those
calculations. Cf. United States v. Felix, 561 F.3d 1036, 1045 (9th Cir. 2009)
(allowing review of “documents provided by the probation officer”).
AFFIRMED.
2
Hooks argues that the “charging document” attached to the plea agreement
consists exclusively of the first page of the Information. However, that page does
not on its own state any charges and is incomplete without the second page of the
Information—which is in the record and which states that Hooks was charged with
possession of cocaine—as it ends in the middle of a sentence.
3
See Molina-Martinez v. United States, 136 S. Ct. 1338, 1342 (2016); see
also 18 U.S.C. § 3552(a); Fed. R. Crim. P. 32(d), (g).
3