United States v. Snellenberger ( 2007 )


Menu:
  •                      FOR PUBLICATION
    UNITED STATES COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    UNITED STATES OF AMERICA,                   
    Plaintiff-Appellee,
    v.                                 No. 06-50169
    MICHAEL LEE SNELLENBERGER, aka                      D.C. No.
    CR-05-00064-AHS
    Michael Lee Cutter, Michael Lee
    Davidson, Robert Eugene Frehly,                     OPINION
    Cutter Snellenberger, “Cutter”,
    Defendant-Appellant.
    
    Appeal from the United States District Court
    for the Central District of California
    Alicemarie H. Stotler, District Judge, Presiding
    Argued and Submission Deferred February 6, 2007
    Submitted February 13, 2007
    Pasadena, California
    Filed April 3, 2007
    Before: Warren J. Ferguson, Eugene E. Siler, Jr.,* and
    Michael Daly Hawkins, Circuit Judges.
    Opinion by Judge Ferguson;
    Concurrence by Judge Hawkins
    *The Honorable Eugene E. Siler, Jr., Senior United States Circuit Judge
    for the Sixth Circuit, sitting by designation.
    3839
    3842           UNITED STATES v. SNELLENBERGER
    COUNSEL
    Gail Ivens, Deputy Federal Public Defender, Los Angeles,
    California, for the defendant-appellant.
    Anne C. Gannon, Assistant United States Attorney, Santa
    Ana, California, for the plaintiff-appellee.
    OPINION
    FERGUSON, Circuit Judge:
    This case presents the question of whether a minute order,
    coupled with a charging document, may be sufficient under
    Shepard v. United States, 
    544 U.S. 13
    (2005), to establish a
    prior crime of violence for purposes of sentence enhancement.
    We have previously noted that a minute order is “not a judi-
    cial record that can be relied upon” to establish the nature of
    a prior conviction. United States v. Diaz-Argueta, 
    447 F.3d 1167
    , 1169 (9th Cir. 2006). We now explicitly so hold.
    FACTUAL AND PROCEDURAL BACKGROUND
    In   March     2005,     Michael     Lee     Snellenberger
    (“Snellenberger”) was indicted for unarmed bank robbery
    pursuant to 18 U.S.C. § 2113(a). He pled guilty to the charge
    in October of that year. At sentencing, the government
    requested a sentence enhancement under the United States
    Sentencing Guidelines Manual (“Guidelines” or “U.S.S.G.”),
    based on Snellenberger’s status as a “career offender.”
    U.S.S.G. §§ 4B1.1, 4B1.2 (2002). In 1991, Snellenberger had
    pled nolo contendere to burglary under section 459 of the Cal-
    UNITED STATES v. SNELLENBERGER                      3843
    ifornia Penal Code (“Cal. Penal Code § 459” or “§ 459”). The
    government asserted that this prior crime qualified as one of
    violence under the Guidelines.
    The District Court agreed and determined that, in combina-
    tion with another prior offense,1 the § 459 conviction qualified
    Snellenberger as a career offender. This finding raised his
    guidelines offense level from 19 to 29 and increased the advi-
    sory guideline range for his sentence from 63-78 months to
    151-188 months. The court imposed a sentence of 151 months
    imprisonment, a special assessment of $100, and a three year
    term of supervised release with various conditions. Snellen-
    berger has appealed the sentencing court’s reliance on the
    career offender provisions of U.S.S.G. § 4B1.2.
    STANDARD OF REVIEW
    We review de novo the lower court’s “interpretation and
    application” of the Sentencing Guidelines. United States v.
    Franklin, 
    235 F.3d 1165
    , 1168 (9th Cir. 2000); see United
    States v. Cantrell, 
    433 F.3d 1269
    , 1279 (9th Cir. 2006) (no
    change after United States v. Booker, 
    543 U.S. 220
    (2005)).
    We also review de novo the determination of the defendant’s
    career offender status. United States v. Kelly, 
    422 F.3d 889
    ,
    891-92 (9th Cir. 2005).
    DISCUSSION
    [1] A court may deem a defendant a career offender eligible
    for a sentence enhancement under the Guidelines if the defen-
    dant has “at least two prior felony convictions of either a
    crime of violence or a controlled substance offense,” and was
    at least eighteen years old at the time he or she committed a
    1
    Snellenberger does not contest that he has a history of one prior offense
    that falls under U.S.S.G. §§ 4B1.1, 4B1.2. He challenges only the District
    Court’s finding that his 1991 conviction should count as a second prior
    felony.
    3844                 UNITED STATES v. SNELLENBERGER
    third felony that was also a “crime of violence or a controlled
    substance offense.” U.S.S.G. § 4B1.1(a), (b). The Guidelines
    define a “crime of violence” as “any offense under federal or
    state law, punishable by imprisonment for a term exceeding
    one year, that [ ] has as an element the use, attempted use, or
    threatened use of physical force against the person of another,
    or [ ] is burglary of a dwelling . . .” or another offense enu-
    merated or described in this provision. U.S.S.G. § 4B1.2(a)
    (emphasis added). The dispute in this case focuses on whether
    Snellenberger’s 1991 burglary conviction qualifies as bur-
    glary of a dwelling.2
    [2] Burglary under Cal. Penal Code § 459 is defined more
    broadly than burglary of a dwelling. The California statute
    includes, inter alia, burglary of a shop, warehouse, barn, sta-
    ble, train car, aircraft, mine, or underground portion of a
    mine. Cal. Penal Code § 459.3 Therefore, Snellenberger’s
    § 459 conviction does not necessarily imply that he pled to
    burglary of a dwelling, and it cannot provide the basis for
    concluding that he is a career offender qualified for a sentence
    enhancement. See, e.g., 
    Franklin, 235 F.3d at 1170
    (“We have
    previously and unequivocally held that California Penal Code
    section 459 is far too sweeping to satisfy the Taylor definition
    of generic burglary.”) (referring to definition even broader
    than “crime of violence” under U.S.S.G. § 4B1.2(a)).
    2
    On appeal, Snellenberger does not contest the categorization of the
    instant offense as a crime of violence.
    3
    The complete statutory definition of burglary is as follows:
    Every person who enters any house, room, apartment, tenement,
    shop, warehouse, store, mill, barn, stable, outhouse or other
    building, tent, vessel, . . . floating home . . . railroad car, locked
    or sealed cargo container . . . trailer coach . . . any house car . . .
    inhabited camper . . . vehicle as defined by the Vehicle Code,
    when the doors are locked, aircraft . . . or mine or any under-
    ground portion thereof, with intent to commit grand or petit lar-
    ceny or any felony is guilty of burglary. . . .
    Cal. Penal Code § 459.
    UNITED STATES v. SNELLENBERGER              3845
    In Taylor v. United States, 
    495 U.S. 575
    , 600 (1990) (inter-
    preting 18 U.S.C. § 924(e) but relying on broader rationale),
    the Supreme Court held that sentencing courts must generally
    assess prior convictions using a “formal categorical approach,
    looking only to the statutory definitions of the prior offenses,
    and not to the particular facts underlying those convictions.”
    See also United States v. Becker, 
    919 F.2d 568
    , 570 (9th Cir.
    1990) (applying Taylor rule concerning Armed Career Crimi-
    nal Act to section 4B1.1 of the Sentencing Guidelines). The
    Court explained that a fact-based approach would contravene
    Congressional intent and create “practical difficulties and
    potential unfairness,” as it could lead to mini-trials concerning
    the factual bases for prior convictions. 
    Taylor, 495 U.S. at 601
    . Taylor did provide an exception to the categorical rule
    for “a narrow range of cases where . . . the charging paper and
    jury instructions actually required the jury to find all the ele-
    ments of [the narrower, qualifying offense] in order to con-
    vict.” 
    Id. at 602;
    see 
    Shepard, 544 U.S. at 17
    (describing
    Taylor exception). Where the jury instructions in combination
    with the charging document demonstrated that the jury neces-
    sarily had to find all the factual elements of the qualifying
    offense, the sentencing court could “go beyond the mere fact
    of conviction” to reach the logical conclusion that the defen-
    dant had committed the qualifying offense. 
    Taylor, 495 U.S. at 602
    .
    [3] In 
    Shepard, 544 U.S. at 19
    , the Supreme Court applied
    the rationale of Taylor to a prior conviction resulting from a
    plea. Shepard held that in pleaded cases, the “closest analog”
    to jury instructions is “the statement of the factual basis for
    the charge, shown by a transcript of plea colloquy or by writ-
    ten plea agreement presented to the court, or by a record of
    comparable findings of fact adopted by the defendant upon
    entering the plea.” 
    Id. at 20
    (internal citation omitted). The
    Court ruled that a sentencing court’s inquiry into the facts of
    a prior crime cannot include consideration of complaint appli-
    cations or police reports, and instead “is generally limited to
    examining the statutory definition, charging document, writ-
    3846               UNITED STATES v. SNELLENBERGER
    ten plea agreement, transcript of plea colloquy, and any
    explicit factual finding by the trial judge to which the defen-
    dant assented.” 
    Id. at 16.
    In this case, Snellenberger maintains that the government
    has provided insufficient evidence to establish that his 1991
    burglary plea under Cal. Penal Code § 459 involved a crime
    of violence. The government submitted at sentencing copies
    of two documents from the convicting court: an information
    and a minute order. The information lists factual allegations
    and specifically charges Snellenberger with, inter alia, first
    degree residential burglary in violation of Cal. Penal Code
    § 459. Under California law, burglary in the first degree nec-
    essarily encompasses all factual elements of “burglary of a
    dwelling,” so if Snellenberger had pled guilty to this charge,
    he would necessarily have admitted to burglary of a dwelling.
    See Cal. Penal Code §§ 450, 460(a), (b). However, like any
    charging document, the information is insufficient alone to
    prove the facts to which Snellenberger admitted. See Ruiz-
    Vidal v. Gonzales, 
    473 F.3d 1072
    , 1078 (9th Cir. 2007);
    United States v. Parker, 
    5 F.3d 1322
    , 1327 (9th Cir. 1993).
    The government therefore relies heavily on the minute order,
    which states that Snellenberger entered a nolo contendere plea
    to “459 Penal Code (first degree).”
    [4] Snellenberger maintains that the sentencing court
    should not have considered the minute order. We agree. To
    establish that a defendant committed a prior crime of vio-
    lence, the government must provide the sentencing court with
    “the terms of a plea agreement or transcript of [a] colloquy
    between [the] judge and defendant in which the factual basis
    for the plea was confirmed by the defendant, or [ ] some com-
    parable judicial record of this information.” 
    Shepard, 544 U.S. at 26
    . As we previously recognized in 
    Diaz-Argueta, 447 F.3d at 1169
    , a minute order is not a comparable judicial
    record under Shepard.4
    4
    We decided in 
    Diaz-Argueta, 447 F.3d at 1169
    , that, under Shepard,
    a minute order of the state court was “not a judicial record that c[ould] be
    UNITED STATES v. SNELLENBERGER                     3847
    [5] A minute order is not sufficient because it does not con-
    tain “the factual basis for the plea [as] confirmed by the
    defendant.” 
    Shepard, 544 U.S. at 26
    . On the contrary, it con-
    tains no facts and no indication that it has even been shown
    to the defendant. The one-page form simply provides a tiny
    space in which to list the statute under which the defendant
    has been convicted. Such a document cannot be considered
    “comparable” to “a plea agreement or transcript of [a] collo-
    quy between the judge and the defendant.” Id.5
    [6] The government asserts that California evidentiary law
    treats minute orders as accurate in the absence of substantial
    evidence to the contrary, but this argument misses the point.
    relied upon to prove” the felony status of a prior conviction under
    U.S.S.G. § 2L1.2(b)(1)(A)(ii), but that Diaz-Argueta’s particular prior
    offense was a felony as a matter of statutory interpretation. Ultimately, we
    remanded the case because the sentencing court had failed to consider any
    of the factors of 18 U.S.C. § 3553(a). 
    Id. at 1170,
    1171.
    5
    We recognize an apparent tension between Diaz-Argueta and two of
    our cases concerning abstracts of judgments. Compare 
    Diaz-Argueta, 447 F.3d at 1169
    (minute orders are not judicial records under Shepard) with
    United States v. Valle-Montalbo, 
    474 F.3d 1197
    , 2201-02 (9th Cir. 2007)
    (abstract of judgment, coupled with charging document, may provide
    “clear and convincing evidence” of prior conviction) and United States v.
    Rodriguez-Lara, 
    421 F.3d 932
    , 949-50 (9th Cir. 2005) (quotation and
    internal punctuation omitted) (abstract of judgment and charging docu-
    ment were not “too far removed from . . . a prior judicial record” and
    therefore did not raise constitutional concerns under Apprendi v. New Jer-
    sey, 
    530 U.S. 466
    (2000)). As none of these decisions clarified this cir-
    cuit’s interpretation of comparable judicial records under Shepard, we take
    the opportunity to do so in this opinion. See 
    Valle-Montalbo, 474 F.3d at 1201-02
    (neither citing Shepard nor addressing whether abstract of judg-
    ment is comparable judicial record); 
    Diaz-Argueta, 447 F.3d at 2269
    (not-
    ing without explanation that minute orders are not judicial records under
    Shepard); compare 
    Rodriguez-Lara, 421 F.3d at 950
    (deciding constitu-
    tionality of increasing sentence based on abstract of judgment and charg-
    ing document, and citing constitution-based, plurality portion of Shepard,
    not majority portion that explicitly rested on statutory interpretation of
    Guidelines (citing 
    Shepard, 544 U.S. at 24
    )) with 
    Shepard, 544 U.S. at 23
    (“We are, after all, dealing with an issue of statutory interpretation.”).
    3848            UNITED STATES v. SNELLENBERGER
    See 
    Shepard, 544 U.S. at 22-23
    (rejecting argument that docu-
    ments could be considered reliable if uncontradicted). The
    question is not whether the documents are admissible under
    general rules of evidence, but whether they are adequate to
    meet the government’s evidentiary burden of clearly and
    unequivocally establishing the facts underlying a prior con-
    viction so as to justify the enhancement of a criminal sen-
    tence. As the Supreme Court noted when ruling that
    complaints and police reports could not be considered, the
    defendant was never asked if the information contained in the
    reports was true or accurately reflected his plea. 
    Id. at 18.
    For
    this same reason, a minute order cannot establish the factual
    elements underlying a plea to a prior offense.
    [7] Any inquiry beyond the language of the convicting stat-
    ute “must be narrowly construed” to implement Congressio-
    nal intent and avoid endless evidentiary hearings concerning
    prior offenses. 
    Id. at 23
    n.4. A sentence enhancement based
    on facts underlying a prior conviction must rely on a judicial
    record of those facts. 
    Id. at 26.
    The government has submitted
    no such record regarding Snellenberger’s § 459 conviction,
    and the enhancement of his sentence was in error.
    CONCLUSION
    The District Court should not have considered a minute
    order in ruling on whether Snellenberger’s conviction under
    Cal. Penal Code § 459 involved burglary of a dwelling and
    therefore a crime of violence. The government has failed to
    meet its burden of demonstrating that Snellenberger qualified
    as a career offender, eligible for a sentence enhancement
    under the Guidelines. For the foregoing reasons, we
    VACATE the decision below and REMAND for a new sen-
    tencing hearing.
    UNITED STATES v. SNELLENBERGER               3849
    HAWKINS, Circuit Judge, specially concurring:
    The majority quite properly holds that we are bound by this
    court’s prior statement that a state court minute order is not
    the type of judicial record we can rely on under Shepard v.
    United States, 
    544 U.S. 13
    (2005). See United States v. Diaz-
    Argueta, 
    447 F.3d 1167
    , 1169 (9th Cir. 2006).
    I write separately to clarify that we are not presented in this
    opinion with the question of whether a minute order could be
    used, together with a charging document, to satisfy the gov-
    ernment’s burden of poof of the fact of a prior conviction,
    where the charged crime categorically qualifies as a requisite
    crime for purposes of sentencing enhancements. Presumably,
    this would not present a problem: minute orders share many
    similarities with abstracts of judgments, see United States v.
    Navidad-Marcos, 
    367 F.3d 903
    , 909 (9th Cir. 2004), and our
    court routinely permits the use of abstracts of judgments, cou-
    pled with a charging document, to satisfy this burden. See
    United States v. Valle-Montalbo, 
    474 F.3d 1197
    , 1201-02 (9th
    Cir. 2007) (“trial court may rely upon the abstract of judg-
    ment and charging document to conclude there is clear and
    convincing evidence that the defendant had a qualifying con-
    viction under U.S.S.G. § 2L1.2(b)(1)(A)”); United States v.
    Rodriguez-Lara, 
    421 F.3d 932
    , 949-50 (9th Cir. 2005). I thus
    disagree with the majority’s conclusion that there is “tension”
    between Diaz-Argueta and these cases, majority opinion at n.
    5, because Valle-Montalbo and Rodriguez-Lara did not rely
    on the abstract of judgment to conduct a modified categorical
    approach under Shepard/Taylor, but only relied on the docu-
    ment after concluding that the crime of conviction was cate-
    gorically a requisite crime for sentencing enhancement
    purposes. Thus, the only remaining issue was whether the
    government established the fact of a prior conviction, and not
    the nature of the conviction itself.
    The tension exists, in my view, as to whether we may con-
    sider these types of documents under Shepard when conduct-
    3850           UNITED STATES v. SNELLENBERGER
    ing Taylor’s modified categorical approach. In the cases in
    which we have disapproved the similar use of an abstract of
    judgment, the abstract has revealed that the defendant pled to
    a different crime than that in the charging document. See
    Ruiz-Vidal v. Gonzales, 
    473 F.3d 1072
    , 1078-79 (9th Cir.
    2007); Martinez-Perez v. Gonzales, 
    417 F.3d 1022
    , 1029 (9th
    Cir. 2005); see also 
    Navidad-Marcos, 367 F.3d at 908-09
    (disapproving use of abstract alone to narrow conduct charged
    in information). I agree that abstracts of judgment may not
    independently establish a qualifying conviction, but I do not
    believe our case law precludes their use altogether when con-
    ducting the modified categorical analysis, and especially not
    when the abstract reveals the defendant pled to the same (nar-
    rower) crime as described in the charging instrument.
    I concur because I believe we are bound by Diaz-Argueta,
    but the result may be that abstracts of judgments and minute
    orders are treated differently in this circuit for purposes of
    Shepard/Taylor.