United States v. Rodriguez-Rodriguez ( 2005 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellant, No. 03-50146
v.  D.C. No.
JORGE RODRIGUEZ-RODRIGUEZ, CR-02-02456-MJL
Defendant-Appellee.

UNITED STATES OF AMERICA,  No. 03-50147
Plaintiff-Appellee, D.C. No.
v.
 CR-02-02456-MJL
JORGE RODRIGUEZ-RODRIGUEZ, ORDER AND
Defendant-Appellant. AMENDED
 OPINION
Appeal from the United States District Court
for the Southern District of California
M. James Lorenz, District Judge, Presiding
Argued and Submitted
March 30, 2004—Pasadena, California
Filed April 20, 2004
Amended January 5, 2005
Before: Cynthia Holcomb Hall, Stephen S. Trott, and
Consuelo M. Callahan, Circuit Judges.
Opinion by Judge Trott
73
UNITED STATES v. RODRIGUEZ-RODRIGUEZ 77
COUNSEL
Carol C. Lam, United States Attorney, Deborah J. Rhodes,
Assistant U.S. Attorney (on the brief), Lawrence E. Spong,
Assistant U.S. Attorney (at oral argument), United States
Attorney’s Office, San Diego, California, for the plaintiff-
appellant/cross-appellee.
Steven F. Hubacheck and Vincent J. Brunkow, Federal
Defenders of San Diego, Inc., San Diego, California, for the
defendant-appellee/cross-appellant.
ORDER
The Opinion filed April 20, 2004, and appearing at 364
F.3d 1142 (9th Cir. 2004) is amended as follows. Replace
Section D with the following:
D. Sentencing
The sentencing judge’s application of the Sentenc-
ing Guidelines, including whether a prior conviction
is a “crime of violence” or an “aggravated felony”
for the purposes of U.S.S.G. § 2L1.2, is reviewed de
novo. United States v. Bonilla-Montenegro, 331 F.3d
1047, 1049 (9th Cir. 2003).
78 UNITED STATES v. RODRIGUEZ-RODRIGUEZ
The Guidelines provide that a sentence is
enhanced by sixteen levels if an alien “previously
was deported, or unlawfully remained in the United
States, after . . . a conviction for a felony that is . . .
a crime of violence.” U.S.S.G. § 2L1.2(b)(1)(A). For
an aggravated felony, the enhancement is only eight
levels. U.S.S.G. § 2L1.2(b)(1)(C). The application
notes specifically provide that “burglary of a dwell-
ing” is a “crime of violence.” See U.S.S.G. § 2L1.2,
cmt. n. 1(B)(iii).
The sentencing judge enhanced Rodriguez’s sen-
tence by eight levels, characterizing his prior bur-
glary conviction as an “aggravated felony,” rather
than a “crime of violence.” At the sentencing hear-
ing, the defense argued that, under Taylor v. United
States, California’s generic burglary definition was
too broad to apply the “crime of violence” guideline,
and that Rodriguez’s role as a lookout warranted
application of the lesser “aggravated felony”
enhancement. See 495 U.S. 575 (1990).
Although the application note specifically
includes “burglary of a dwelling” in the definition of
“crime of violence,” see U.S.S.G. § 2L1.2, cmt. n.
1(B)(iii), a conviction for burglary of a dwelling
must meet the generic, uniform definition of bur-
glary to fall under the definition of “burglary of a
dwelling.” United States v. Wenner, 351 F.3d 969,
972 (9th Cir. 2003). Under Taylor, a state conviction
meets the generic definition of burglary if the bur-
glary statute “contains at least the following ele-
ments: an unlawful or unprivileged entry into, or
remaining in, a building or other structure, with
intent to commit a crime.” Taylor, 495 U.S. at 598.
The definition of “burglary of a dwelling” is the
same as the “Taylor definition of burglary, with the
UNITED STATES v. RODRIGUEZ-RODRIGUEZ 79
narrowing qualification that the burglary occur in a
dwelling.” Wenner, 351 F.3d at 973.
Taylor sets forth a categorical approach, which
“generally requires the trial court to look only to the
fact of conviction and the statutory definition of the
prior offense.” 495 U.S. at 602. Using that approach,
Rodriguez’s California first degree burglary convic-
tion does not constitute generic burglary because
California Penal Code Sections 459 and 460 do not
require “unlawful or unprivileged entry” for a bur-
glary conviction. See Taylor, 495 U.S. at 599 (“A
few States’ burglary statutes, however, define bur-
glary more broadly, e.g., by eliminating the require-
ment that the entry be unlawful.”); see also People
v. Frye, 959 P.2d 183, 18 Cal. 4th 894, 954 (Cal.
1998) (holding that in California “one may be con-
victed of burglary even if he enters with consent”).
Where, as here, the state burglary statute is
broader than the Taylor definition of burglary, we
employ a modified categorical approach, under
which we consider whether the documentation or
judicially noticeable facts show that the defendant
was convicted of all elements of generic burglary
under Taylor. See Wenner, 351 F.3d at 972.
Applying the modified categorical approach, we
conclude that Rodriguez was convicted of a “bur-
glary of a dwelling,” triggering the sixteen level
enhancement. Rodriguez pled guilty to “willfully
and unlawfully enter[ing] a building with the intent
to commit theft” where the building was an “inhab-
ited dwelling house [or other residential building]
. . . within the meaning of Penal Code section 460.”
By pleading guilty, Rodriguez admitted the factual
allegations in the indictment. See United States v.
Velasco-Medina, 305 F.3d 839, 852 (9th Cir. 2002);
80 UNITED STATES v. RODRIGUEZ-RODRIGUEZ
United States v. Williams, 47 F.3d 993, 995 (9th Cir.
1995). Because Rodriguez’s conviction included the
unlawful entry requirement absent in California’s
statutory definition of burglary, his conviction meets
the definition of “burglary of a dwelling” under Tay-
lor and is, therefore, a “crime of violence” under the
Sentencing Guidelines. See U.S.S.G. § 2L1.2, cmt. n.
1(B)(iii); see also Velasco-Medina, 305 F.3d at 852-
52 (holding that a California burglary conviction was
burglary under a modified-categorical approach
because Velasco-Medina pled guilty where the
indictment alleged “unlawful” entry).
Rodriguez’s alternate argument, that his limited
role as a lookout warrants application of the lesser
enhancement, also fails. The application notes spe-
cifically include convictions for aiding and abetting,
conspiring, and attempting to commit the listed
offenses in U.S.S.G. § 2L1.2(b)(1). U.S.S.G.
§ 2L1.2, cmt. n.5. Under Taylor, we look to the stat-
utory definitions of the prior offenses and avoid “in-
quiries into the underlying facts that would
essentially turn the sentencing hearings into mini-
trials on the issue of whether the prior crimes were
committed.” United States v. Bonat, 106 F.3d 1472,
1476 (9th Cir. 1997) (citing Taylor, 495 U.S. at 601).
Because the sentencing judge misapplied U.S.S.G.
§ 2L1.2(b)(1) in determining that Rodriguez’s sen-
tence should only be enhanced eight levels for an
aggravated felony instead of sixteen levels for a
crime of violence, we vacate Rodriguez’s sentence
and remand to the district court for resentencing in
accordance with this opinion.
With these amendments, the panel as constituted above has
voted to deny the petition for rehearing. Judges Trott and Cal-
UNITED STATES v. RODRIGUEZ-RODRIGUEZ 81
lahan have voted to deny the petition for rehearing en banc,
and Judge Hall so recommends.
The full court has been advised of the suggestion for
rehearing en banc and no judge of the court has requested a
vote on it. Fed. R. App. P. 35(b).
The petition for rehearing and the petition for rehearing en
banc are DENIED.
OPINION
TROTT, Circuit Judge:
Jorge Rodriguez-Rodriguez (“Rodriguez”) was convicted
of one count of illegal entry under 8 U.S.C. § 1326 and sen-
tenced to twenty-one months in custody. The United States
(“government”) appeals the sentencing judge’s application of
United States Sentencing Guideline (U.S.S.G.) § 2L1.2(b)
(1)(A), arguing that Rodriguez’s prior burglary constitutes a
“crime of violence.” Rodriguez cross-appeals, arguing that (1)
the government’s failure to allege voluntary entry in the
indictment renders it insufficient, (2) the government used
statements that were taken in violation of Miranda v. Arizona,
384 U.S. 436 (1966), and (3) Rodriguez was denied his rights
under the Confrontation Clause when the court denied his
request to cross examine a witness regarding INS recordkeep-
ing.
We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C.
§ 3742(b). We affirm Rodriguez’s conviction. We vacate
Rodriguez’s sentence and remand to the district court for
resentencing consistent with this opinion.
BACKGROUND
On June 21, 2002, Rodriguez was apprehended by border
patrol. After admitting that he was a citizen and national of
82 UNITED STATES v. RODRIGUEZ-RODRIGUEZ
Mexico illegally in the United States, he was arrested and
transported to the Imperial Beach Border Patrol station. He
was detained at the station, where he was fingerprinted and
his photo and fingerprints were run against the INS records,
which revealed that he had previously been deported.
At the station, Border Patrol Agent Overton read Rodriguez
his Miranda rights in English and Spanish. After Rodriguez
signed a Miranda waiver, witnessed by another agent, he
responded to a number of questions. The agents noted that he
had “needle tracks” on his arms, but observed that he was
coherent, interactive, and normal. After he was questioned,
Rodriguez underwent a routine health examination. The medi-
cal record indicates that Rodriguez was alert and oriented, but
it did go on to diagnose him with “acute heroin withdrawal.”
Miguel Ahuage, the author of the report, testified that “acute”
does not mean “severe,” and that only patients undergoing
mild or moderate withdrawal are permitted in the clinic where
he works, while the more serious cases must be treated else-
where.
Rodriguez was charged with being a previously deported
alien found in the United States without the consent of the
Attorney General under 8 U.S.C. § 1326.
Prior to trial, Rodriguez unsuccessfully moved to dismiss
the action, claiming the indictment was insufficient because it
failed to allege voluntary entry. Rodriguez also unsuccessfully
moved to suppress the statements he made at the border patrol
station, claiming that he could not have voluntarily waived his
right to counsel under Miranda, because he was suffering
from heroin withdrawal during the course of questioning.
During the Miranda hearing, Rodriguez attempted to call an
expert witness to testify to the implications of Rodriguez’s
suffering from heroin withdrawal and its effects on his ability
to make a voluntary and intelligent waiver. The district court
excluded the testimony as irrelevant. During trial, the govern-
ment elicited testimony that INS records searches revealed no
UNITED STATES v. RODRIGUEZ-RODRIGUEZ 83
applications for Rodriguez’s entry. Rodriguez sought to cross-
examine the witness regarding the deficiencies of INS record-
keeping, but the trial court denied his request.
Rodriguez was convicted by a jury, and sentenced to
twenty-one months custody followed by three years super-
vised release. The sentence imposed was based in part on a
prior conviction. In 1991, Rodriguez had pleaded guilty to
one count of first degree burglary of a residence, a felony.
DISCUSSION
A. Failure to Allege Voluntary Entry
The sufficiency of an indictment is reviewed de novo.
United States v. Fleming, 215 F.3d 930, 935 (9th Cir. 2000).
Rodriguez argues that the government’s failure to allege vol-
untary entry in his indictment renders it insufficient.1
[1] Rodriguez’s argument is foreclosed by our holding in
United States v. Parga-Rosas, 238 F.3d 1209 (9th Cir. 2001),
cert. denied, 534 U.S. 942 (2001). In that case, we held that
a “found in” indictment, like that in the instant case, is suffi-
cient to allege unlawful conduct under § 1326. Id. at 1211
(“[T]here is no basis for reversing Parga-Rosas’s conviction
on the ground that the government failed to allege or prove a
voluntary entry.”)
[2] Rodriguez argues that Parga-Rosas was implicitly over-
ruled by this Court’s en banc decision in United States v.
1
The indictment reads:
JORGE RODRIGUEZ-RODRIGUEZ, an alien, who had previ-
ously been excluded, deported and removed from the United
States to Mexico, was found in the United States, without the
Attorney General of the United States having expressly consented
to the defendant’s reapplication for admission into the United
States; in violation of Title 8, United States Code, Section 1326.
84 UNITED STATES v. RODRIGUEZ-RODRIGUEZ
Buckland, 289 F.3d 558 (9th Cir. 2002) (en banc). In Buck-
land, this Court held that under Apprendi v. New Jersey, 530
U.S. 466 (2000), drug type and quantity are material facts in
a prosecution that must be “charged in the indictment, submit-
ted to the jury, subject to the rules of evidence, and proved
beyond a reasonable doubt.” Id. at 568. Rodriguez argues that
like drug type and quantity, voluntary entry is a material fact
and must be charged in a § 1326 indictment. The Buckland
decision directs us that the relevant inquiry in determining
whether a fact or element must be charged in an indictment
is whether it “may increase a defendant’s exposure to penal-
ties,” regardless of its label. Id. at 566. Here, voluntary entry
and being found in the United States are two alternative
unlawful acts that are chargeable under § 1326. Voluntary
entry need not even be proved in most cases. See United
States v. Pina-Jaime, 332 F.3d 609, 612 (9th Cir. 2003)
(“Today, we make clear that an alien does not have to enter
the United States illegally to violate the ‘found in’ clause of
8 U.S.C. §1326 (a)(2).”). Because it is not necessary to prove
or allege voluntary or unlawful entry in a “found in” convic-
tion, and because voluntary entry makes no difference in a
defendant’s exposure to penalties, Buckland in no way over-
rules Parga-Rosas.
[3] The district court correctly determined that Parga-
Rosas controls this question and denied Rodriguez’s motion
to dismiss for insufficiency of the indictment.
B. Miranda Violation
1. Denial of Rodriguez’s Motion to Suppress
We review de novo the district court’s decision to admit or
suppress statements that may have been obtained in violation
of Miranda. United States v. Nelson, 137 F.3d 1094, 1110
(9th Cir. 1998). Underlying factual findings, including a dis-
trict court’s finding that a defendant knowingly and intelli-
gently waived his Miranda rights, are reviewed for clear
UNITED STATES v. RODRIGUEZ-RODRIGUEZ 85
error. Id.; United States v. Garibay, 143 F.3d 534, 536 (9th
Cir. 1998). The district court denied Rodriguez’s motion to
suppress statements he alleged were taken in violation of
Miranda because “there [was] no evidence whatsoever that
[Rodriguez’s waiver] was other than voluntary.” Rodriguez
argues that he could not voluntarily and intelligently waive
his rights under Miranda because he was going through her-
oin withdrawal. The facts do not support his claim.
[4] The border agents read Rodriguez his Miranda rights in
both English and Spanish. Rodriguez then signed a waiver
and agreed to answer questions. Agent Overton, who read
Rodriguez his rights, testified: “[Rodriguez] was coherent, sit-
ting up facing me. He spoke and interacted. He seemed nor-
mal.” Rodriguez’s own witness, the physician assistant who
examined him just after he spoke with the border agents, testi-
fied that his withdrawal could only have been “mild or moder-
ate” and that the Rodriguez was “alert [and] oriented” at the
time of the exam. Further, our case law supports the finding
that individuals going through heroin withdrawal can volun-
tarily and intelligently waive their Miranda rights. See, e.g.,
United States v. Coleman, 208 F.3d 786, 791 (9th Cir. 2000)
(“Nor did Defendant’s symptoms of heroin withdrawal render
his statements involuntary.”); United States v. Kelley, 953
F.2d 562, 565 (9th Cir. 1992) (holding that even though
defendant “began to display physical signs of withdrawal,”
his waiver was voluntary because he “remained coherent and
responsive, was aware of what was going on, and told the . . .
agents that he was able to continue with questioning”).
[5] On this record, the district court’s determination that
Rodriguez’s waiver was voluntary is not clearly erroneous.
Thus, the district court properly denied Rodriguez’s motion to
suppress the statements.
2. Exclusion of Rodriguez’s Expert Testimony
Rodriguez argues also that the trial court improperly
excluded his expert witness, who would have testified that the
86 UNITED STATES v. RODRIGUEZ-RODRIGUEZ
symptoms of heroin withdrawal could have precluded his
ability to voluntarily waive his rights under Miranda. The
standard of review for a district court’s decision to preclude
expert testimony is abuse of discretion. United States v. Cas-
taneda, 94 F.3d 592, 595 (9th Cir. 1996).
[6] The trial court excluded Rodriguez’s expert because
“his testimony would be irrelevant.” The border agents and
the physician assistant all testified as to Rodriguez’s actual
behavior and responsiveness at the relevant time. Because
“the expert’s testimony was general and did not relate to any
conduct that was observed on the date of [Rodriguez’s]
arrest,” it was not an abuse of discretion for the judge to find
that it was irrelevant and would not aid the trier of fact. Cas-
taneda, 94 F.3d at 595. The trial court’s decision to exclude
Rodriguez’s expert testimony lay squarely within its discre-
tion and will not be disturbed on appeal.
C. Confrontation Claims
Rodriguez argues that the district court’s decision to curtail
his cross-examination regarding INS recordkeeping proce-
dures violated his confrontation rights guaranteed under the
Sixth Amendment.
[7] This circuit has analyzed the issue of whether cross-
examination infringes upon a defendant’s confrontation rights
under both abuse of discretion and de novo standards. United
States v. Bensimon, 172 F.3d 1121, 1128 (1999) (“This court
reviews de novo whether the limitation on cross-examination
violated [a defendant’s] right of confrontation. The district
court, however, has considerable discretion in restricting
cross-examination, and this court will find error only when
that discretion has been abused.” (internal citations omitted));
United States v. Shabani, 48 F.3d 401, 403 (9th Cir. 1995)
(“We review judicial limits on cross-examination for abuse of
discretion.”). Both lines of cases provide that a limitation on
cross-examination does not violate the Confrontation Clause
UNITED STATES v. RODRIGUEZ-RODRIGUEZ 87
unless it limits relevant testimony and prejudices the defen-
dant. Bensimon, 172 F.3d at 1128; Shabani, 48 F.3d at 403.
Here, under either standard, Rodriguez’s claim fails.
[8] Rodriguez asserts that the excluded testimony would
have shown that (1) INS computers are not fully interactive
with other federal agencies’ computers, (2) over 2 million
documents filed by immigrants have been lost or forgotten,
(3) other federal agencies have the ability and authority to
apply for an immigrant to come into the United States, and (4)
the custodian never checked with the other federal agencies to
inquire about documents relating to Rodriguez. None of that
information is relevant on the facts of this case, because it is
uncontested that Rodriguez never made any application to the
INS or any other federal agency.
[9] Because Rodriguez’s line of inquiry was not relevant to
the facts of his case, the district court’s restricting cross-
examination did not violate the Confrontation Clause.
D. Sentencing
The sentencing judge’s application of the Sentencing
Guidelines, including whether a prior conviction is a “crime
of violence” or an “aggravated felony” for the purposes of
U.S.S.G. § 2L1.2, is reviewed de novo. United States v.
Bonilla-Montenegro, 331 F.3d 1047, 1049 (9th Cir. 2003).
[10] The Guidelines provide that a sentence is enhanced by
sixteen levels if an alien “previously was deported, or unlaw-
fully remained in the United States, after . . . a conviction for
a felony that is . . . a crime of violence.” U.S.S.G.
§ 2L1.2(b)(1)(A). For an aggravated felony, the enhancement
is only eight levels. U.S.S.G. § 2L1.2(b)(1)(C). The applica-
tion notes specifically provide that “burglary of a dwelling”
is a “crime of violence.” See U.S.S.G. § 2L1.2, cmt. n.
1(B)(iii).
88 UNITED STATES v. RODRIGUEZ-RODRIGUEZ
The sentencing judge enhanced Rodriguez’s sentence by
eight levels, characterizing his prior burglary conviction as an
“aggravated felony,” rather than a “crime of violence.” At the
sentencing hearing, the defense argued that, under Taylor v.
United States, California’s generic burglary definition was too
broad to apply the “crime of violence” guideline, and that
Rodriguez’s role as a lookout warranted application of the
lesser “aggravated felony” enhancement. See 495 U.S. 575(1990).
[11] Although the application note specifically includes
“burglary of a dwelling” in the definition of “crime of vio-
lence,” see U.S.S.G. § 2L1.2, cmt. n. 1(B)(iii), a conviction
for burglary of a dwelling must meet the generic, uniform def-
inition of burglary to fall under the definition of “burglary of
a dwelling.” United States v. Wenner, 351 F.3d 969, 972 (9th
Cir. 2003). Under Taylor, a state conviction meets the generic
definition of burglary if the burglary statute “contains at least
the following elements: an unlawful or unprivileged entry
into, or remaining in, a building or other structure, with intent
to commit a crime.” Taylor, 495 U.S. at 598. The definition
of “burglary of a dwelling” is the same as the “Taylor defini-
tion of burglary, with the narrowing qualification that the bur-
glary occur in a dwelling.” Wenner, 351 F.3d at 973.
[12] Taylor sets forth a categorical approach, which “gener-
ally requires the trial court to look only to the fact of convic-
tion and the statutory definition of the prior offense.” 495
U.S. at 602. Using that approach, Rodriguez’s California first
degree burglary conviction does not constitute generic bur-
glary because California Penal Code Sections 459 and 460 do
not require “unlawful or unprivileged entry” for a burglary
conviction. See Taylor, 495 U.S. at 599 (“A few States’ bur-
glary statutes, however, define burglary more broadly, e.g., by
eliminating the requirement that the entry be unlawful.”); see
also People v. Frye, 959 P.2d 183, 18 Cal. 4th 894, 954 (Cal.
1998) (holding that in California “one may be convicted of
burglary even if he enters with consent”).
UNITED STATES v. RODRIGUEZ-RODRIGUEZ 89
Where, as here, the state burglary statute is broader than the
Taylor definition of burglary, we employ a modified categori-
cal approach, under which we consider whether the documen-
tation or judicially noticeable facts show that the defendant
was convicted of all elements of generic burglary under Tay-
lor. See Wenner, 351 F.3d at 972.
[13] Applying the modified categorical approach, we con-
clude that Rodriguez was convicted of a “burglary of a dwell-
ing,” triggering the sixteen level enhancement. Rodriguez
pled guilty to “willfully and unlawfully enter[ing] a building
with the intent to commit theft” where the building was an
“inhabited dwelling house [or other residential building] . . .
within the meaning of Penal Code section 460.” By pleading
guilty, Rodriguez admitted the factual allegations in the
indictment. See United States v. Velasco-Medina, 305 F.3d
839, 852 (9th Cir. 2002); United States v. Williams, 47 F.3d
993, 995 (9th Cir. 1995). Because Rodriguez’s conviction
included the unlawful entry requirement absent in California’s
statutory definition of burglary, his conviction meets the defi-
nition of “burglary of a dwelling” under Taylor and is, there-
fore, a “crime of violence” under the Sentencing Guidelines.
See U.S.S.G. § 2L1.2, cmt. n. 1(B)(iii); see also Velasco-
Medina, 305 F.3d at 852-52 (holding that a California bur-
glary conviction was burglary under a modified-categorical
approach because Velasco-Medina pled guilty where the
indictment alleged “unlawful” entry).
Rodriguez’s alternate argument, that his limited role as a
lookout warrants application of the lesser enhancement, also
fails. The application notes specifically include convictions
for aiding and abetting, conspiring, and attempting to commit
the listed offenses in U.S.S.G. § 2L1.2(b)(1). U.S.S.G.
§ 2L1.2, cmt. n.5. Under Taylor, we look to the statutory defi-
nitions of the prior offenses and avoid “inquiries into the
underlying facts that would essentially turn the sentencing
hearings into mini-trials on the issue of whether the prior
90 UNITED STATES v. RODRIGUEZ-RODRIGUEZ
crimes were committed.” United States v. Bonat, 106 F.3d
1472, 1476 (9th Cir. 1997) (citing Taylor, 495 U.S. at 601).
[14] Because the sentencing judge misapplied U.S.S.G.
§ 2L1.2(b)(1) in determining that Rodriguez’s sentence
should only be enhanced eight levels for an aggravated felony
instead of sixteen levels for a crime of violence, we vacate
Rodriguez’s sentence and remand to the district court for
resentencing in accordance with this opinion.
AFFIRMED in part, VACATED and REMANDED in
part.