United States v. Kevin Eleby , 670 F. App'x 600 ( 2016 )

NOT FOR PUBLICATION FILED
NOV 8 2016
UNITED STATES COURT OF APPEALS
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 13-50556
Plaintiff - Appellee, D.C. No. 2:10-cr-00923-SJO-2
v.
KEVIN ELEBY, AKA L, MEMORANDUM*
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
S. James Otero, District Judge, Presiding
Submitted November 8, 2016**
Pasadena, California
Before: MURGUIA and WATFORD, Circuit Judges, and BOLTON,** District
Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The panel unanimously concludes this case is suitable for decision without oral
argument. See Fed. App.P. 34(a)(2)
***
The Honorable Susan R. Bolton, United States District Judge for the District
of Arizona, sitting by designation.
1
Appellant Kevin Eleby appeals his sentence after guilty verdicts for
racketeering conspiracy in violation of 18 U.S.C. § 1962(d); drug trafficking
conspiracy in violation of 21 U.S.C. § 846; vicarious possession of a firearm in
furtherance of a crime of violence in violation of 18 U.S.C. § 924(c)(1)(A); and
possession with intent to distribute a controlled substance in violation of 21 U.S.C.
§ 841. Eleby challenges the sentencing enhancement imposed based on his prior
California state conviction. This Court has jurisdiction over this direct appeal under
28 U.S.C. § 1291. We affirm.
We review a district court’s interpretation of the Sentencing Guidelines de
novo. United States v. Garcia, 497 F.3d 964, 969 (9th Cir. 2007). The district court’s
application of the Guidelines is reviewed for abuse of discretion and its findings of
fact are reviewed for clear error. United States v. Staten, 466 F.3d 708, 713 (9th Cir.
2006).1 Eleby challenges his sentence on two grounds, whether the district court
appropriately enhanced his sentence after finding that his prior conviction was a
felony and whether California Proposition 47 which retroactively reclassified
Eleby’s prior felony as a misdemeanor requires reversal of his sentence. His
1
There is intracircuit disagreement on whether the district court’s application of
the Guidelines should be reviewed de novo or for abuse of discretion. See Staten,
466 F.3d at 713 n.3. Because the Court finds that the sentencing guidelines were
applied correctly, the Court will not address the intracircuit split.
2
challenge fails on both grounds.
Eleby’s prior conviction was a felony as a matter of law. Since Eleby filed his
opening brief, he requested that this Court take judicial notice of his Application for
Resentencing filed with the Superior Court of California. The Superior Court of
California approved his Application finding that “[Eleby] was convicted of Count 1,
a violation of Health and Safety Code Section 11350(a), a felony” and amended his
conviction to a misdemeanor pursuant to California Penal Code Section 1170.18(g).
Therefore, the district court did not err in using Eleby’s prior state court conviction
under California Health and Safety Code § 11350 to enhance his federal sentence.
Eleby’s argument that the retroactive reclassification of his felony conviction
to a misdemeanor precludes the sentencing enhancement for a prior felony
conviction also fails. Title 21 U.S.C. § 841 allows a sentencing enhancement if a
defendant’s prior conviction meets certain requirements. The Supreme Court has
held that courts should only look to the prior conviction, without considering
subsequent amendments to law, when determining if a sentence should be affirmed.
See McNeill v. United States, 563 U.S. 816, 820 (2011). We had a similar holding
when applying the Sentencing Guidelines in United States v. Salazar-Mojica, 634
F.3d 1070, 1073-74 (9th Cir. 2011). In Salazar-Mojica the Court used defendant’s
prior felony conviction for assault to support a 16-level enhancement even though
3
the California court reduced the conviction to a misdemeanor after defendant’s arrest
in the federal case. Id. at 1072-74. We recently held that a Proposition 47
reclassification did not invalidate imposition of 21 U.S.C. § 841’s sentencing
enhancement. United States v. Diaz, No. 10-50029, 2016 WL 5121765, at *3 (9th
Cir. Sept. 21, 2016). We rejected Diaz’s argument that his conviction’s
reclassification to a misdemeanor required reversing his sentencing enhancement,
noting that “a state making a change to a state conviction, after it has become final,
‘does not alter the historical fact of the [prior state] conviction’ becoming final—
which is what § 841 requires.” Diaz, 2016 WL 5121765, at *3 (quoting Dickerson
v. New Banner Inst., Inc., 460 U.S. 103, 115 (1983)). As noted above, Eleby’s
conviction was a felony at the time he committed the violation of 21 U.S.C. § 841.
Because 21 U.S.C. § 841’s sentencing enhancement applies when a defendant
commits a violation of the statute after a prior felony conviction has become final,
we affirm Eleby’s sentence.
AFFIRMED.
4