United States v. Johnny Asuncion, III ( 2020 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 18-30130
Plaintiff-Appellee,
D.C. No.
v. 1:17-cr-02015-
EFS-1
JOHNNY ANDRES ASUNCION III,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the Eastern District of Washington
Edward F. Shea, District Judge, Presiding
Argued and Submitted May 7, 2020
Seattle, Washington
Filed September 4, 2020
Before: William A. Fletcher and Johnnie B. Rawlinson,
Circuit Judges, and Vince Chhabria, * District Judge.
Opinion by Judge Chhabria
*
The Honorable Vince Chhabria, United States District Judge for
the Northern District of California, sitting by designation.
2 UNITED STATES V. ASUNCION
SUMMARY **
Criminal Law
The panel affirmed a sentence for possession with intent
to distribute 50 grams or more of methamphetamine, in a
case in which the district court imposed the mandatory
minimum life sentence set forth in 21 U.S.C. § 841(b)(1)(A)
(2018) for defendants previously convicted of two or more
“felony drug offenses,” as defined in 21 U.S.C. § 802(44).
Section 802(44) defines “felony drug offenses” as
offenses related to certain controlled substances that were
“punishable by imprisonment for more than one year.”
Distinguishing United States v. Valencia-Mendoza, 912 F.3d
1215 (9th Cir. 2019), in which the applicable guideline range
for the state conviction did not exceed one year but the
state’s guideline system sharply limited the judge’s
discretion to impose a sentence above the range, the panel
held that a prior state conviction is an offense “punishable
by imprisonment for more than one year” where the
guideline contemplated a sentence no greater than one year
but the judge had broad discretion to go above the range.
The panel also held that section 401 of the First Step
Act—which scaled back the mandatory minimum penalties
for repeat drug offenders—does not apply to defendants who
were sentenced before its enactment.
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
UNITED STATES V. ASUNCION 3
The panel rejected the defendant’s other arguments in a
concurrently filed memorandum disposition.
COUNSEL
Dan B. Johnson (argued), Spokane, Washington, for
Defendant-Appellant.
Francesco Valentini (argued), Trial Attorney; Matthew S.
Miner, Deputy Assistant Attorney General; Brian A.
Benczkowski, Assistant Attorney General; Benjamin D.
Seal, Assistant United States Attorney; William D. Hyslop,
United States Attorney; United States Attorney’s Office,
Washington, D.C., for Plaintiff-Appellee.
OPINION
CHHABRIA, District Judge:
We recently held that a prior state conviction is not an
offense “punishable by imprisonment for a term exceeding
one year”—and therefore does not trigger federal sentencing
enhancements—if the applicable guideline range for the
state conviction did not exceed one year and if the state’s
guideline system sharply limited the judge’s discretion to
impose a sentence above the range. In this case, we conclude
that the same cannot be said of a prior state conviction where
the guideline range contemplated a sentence no greater than
one year but the judge had broad discretion to go above the
range. In such a case, even if the defendant happened to be
sentenced to less than one year, the prior offense was indeed
“punishable” by more than one year. We also conclude that
section 401 of the First Step Act—which scaled back the
4 UNITED STATES V. ASUNCION
mandatory minimum penalties for repeat drug offenders—
does not apply to defendants who were sentenced before the
enactment of that statute.
I
In 2017, a federal jury convicted Johnny Andres
Asuncion of possession with intent to distribute 50 grams or
more of methamphetamine in violation of 21 U.S.C. § 841(a)
and (b)(1)(A)(viii). This was not Asuncion’s first drug
conviction. His record included three possession convictions
in Washington state court in 2000 and 2004, and one
distribution conviction in federal court in 2007. Under the
federal drug laws, these prior convictions would trigger
mandatory minimum sentences if the convictions were for
“felony drug offenses”—that is, offenses related to certain
controlled substances that were “punishable by
imprisonment for more than one year.” 21 U.S.C. § 802(44)
(defining “felony drug offense” for purposes of § 841).
The district court found that all four convictions counted
as prior felony drug offenses. The prior federal conviction
had resulted in a sentence longer than one year. The prior
state convictions had each resulted in sentences of one year
or less, but the Washington statute under which Asuncion
was convicted set a maximum penalty of five years. It was
thus a simple matter for the district court: under Ninth
Circuit law at the time, courts looked to the “maximum
statutory sentence for the offense” to determine whether a
prior drug offense was punishable by imprisonment for more
than one year. United States v. Murillo, 422 F.3d 1152, 1154
(9th Cir. 2005). The mandatory minimum sentence for
defendants who had previously been convicted of two or
more felony drug offenses was life in prison, and the district
court sentenced Asuncion accordingly. See 21 U.S.C.
§ 841(b)(1)(A) (2018).
UNITED STATES V. ASUNCION 5
Asuncion appealed. While his appeal was pending, there
were two meaningful changes in law relevant to his case.
First, in December 2018, Congress passed the First Step Act.
See Pub. L. No. 115-391, 132 Stat. 5194. Section 401 of the
Act scales back the recidivism penalties for drug offenses
under 21 U.S.C. § 841. It specifies that a prior offense
triggers a mandatory minimum sentence only if it was for a
“serious drug felony,” as opposed to any “felony drug
offense.” § 401(a)(2), 132 Stat. at 5220–21 (amending
21 U.S.C. § 841(b)(1)). A prior offense counts as a “serious
drug felony” only if the defendant actually “served a term of
imprisonment of more than 12 months.” § 401(a)(1),
132 Stat. at 5220 (codified at 21 U.S.C. § 802(57)). In
addition, Section 401 of the First Step Act reduces the length
of the mandatory minimum sentences triggered by prior drug
offenses. The minimum for defendants with two or more
prior convictions is now twenty-five years rather than life in
prison. § 401(a)(2)(A)(ii), 132 Stat. at 5220. The minimum
for defendants with one prior conviction is now fifteen years
rather than 20. § 401(a)(2)(A)(i), 132 Stat. at 5220.
Second, we decided United States v. Valencia-Mendoza,
912 F.3d 1215 (9th Cir. 2019) and reversed our earlier rule
that sentencing guidelines had no bearing on the term of
imprisonment for which a crime was punishable. We
concluded, in light of recent Supreme Court precedent, that
even if a state statute governing a prior drug offense
prescribes a maximum sentence of more than one year, the
state’s sentencing guideline system can affect whether the
defendant was, in fact, convicted of a crime “punishable by
imprisonment for a term exceeding one year.” Id. at 1216,
1224. The defendant in Valencia-Mendoza was convicted
under a statute that carried a maximum prison term of longer
than a year, but the high end of the range assigned to him by
the state’s guideline system was less than a year, and the
6 UNITED STATES V. ASUNCION
judge’s discretion to go above the high end of the range was
sharply constricted. Id. at 1216. Accordingly, we held that
he was not convicted of a crime punishable by more than a
year. Id. at 1224.
In light of these developments, Asuncion makes two
primary arguments on appeal. First, he contends that under
Valencia-Mendoza, none of his state crimes were
“punishable by imprisonment for more than one year”
because the high ends of his guideline ranges never exceeded
twelve months. If true, this would mean that Asuncion
committed only one prior felony drug offense and should not
have been sentenced as if he had committed two or more.
And it would result in a sentence of 20 years rather than life
in prison (assuming the First Step Act were held not to
apply). See 21 U.S.C. § 841(b)(1) (2018).
Second, Asuncion argues that section 401 of the First
Step Act should apply because his conviction and sentence
were on appeal (and therefore still pending) when the law
was enacted. If that were true, his three prior state
convictions would not count (regardless of the outcome of
his first argument), because the offenses were not “serious
drug felonies” within the meaning of section 401. In this
scenario, Asuncion, who received a mandatory life sentence,
would need to be resentenced with fifteen years as the new
mandatory minimum sentence—what the First Step Act
prescribes for a defendant with one qualifying prior
conviction. See § 401(a)(2)(A)(i), 132 Stat. at 5220.
Although Asuncion did not raise these arguments below,
they rest on legal developments that took place after his
UNITED STATES V. ASUNCION 7
sentencing, so we consider them de novo. See United States
v. McAdory, 935 F.3d 838, 842 (9th Cir. 2019). 1
II
Asuncion’s prior state offenses carried a statutory
maximum term of imprisonment of five years, but the
guideline calculation for each offense resulted in a range
whose top end did not exceed one year. He was sentenced
within the guideline range for each offense. Asuncion
contends that under Valencia-Mendoza, these guideline
ranges—not the maximum term of imprisonment authorized
by the substantive statute—determine whether his offenses
were “punishable by imprisonment for more than one year.”
21 U.S.C. § 802(44). We disagree.
In Valencia-Mendoza, the defendant was convicted and
sentenced for unlawful reentry in violation of 8 U.S.C.
§ 1326(a). 912 F.3d at 1216. He had previously been
convicted of a drug crime in Washington state court, and
under the federal sentencing guidelines, a prior state
conviction results in a higher offense level (and thus a higher
guideline range) if the crime was “punishable by
imprisonment for a term exceeding one year.” U.S.S.G.
§ 2L1.2 cmt. n.2. The maximum penalty for Valencia-
Mendoza’s prior state conviction exceeded a year, but he
received a shorter sentence: Washington’s guidelines called
for a sentence of six months or less. And under the guideline
system in place at the time, the judge had authority to
sentence a defendant above the guideline range only under
limited circumstances spelled out in Washington’s
1
Asuncion makes a number of other arguments on appeal, but they
are insubstantial and we reject them in a concurrently filed memorandum
disposition.
8 UNITED STATES V. ASUNCION
sentencing statute, and only upon making specific factual
findings (none of which were made for Valencia-Mendoza).
912 F.3d at 1223.
Given these circumstances, we concluded that Valencia-
Mendoza’s prior conviction was not for a crime punishable
by imprisonment for more than a year. Id. at 1223–24. We
emphasized the distinction between Washington’s current
guideline system—under which Valencia-Mendoza had
been sentenced—and the previous version. Under the
previous version, the state court judge had broad discretion
to sentence a defendant to a term of imprisonment above the
applicable guideline range. The judge could conduct “an
open-ended inquiry into any potential factual circumstance”
and impose a sentence above the guideline range based on
that inquiry. Id. at 1223. The guidelines offered a set of
factors that the court might “consider in the exercise of its
discretion to impose an exceptional sentence,” but noted that
the factors were “illustrative only and . . . not intended to be
exclusive reasons for exceptional sentences.” Wash. Rev.
Code § 9.94A.535 (2004).
But the guideline system in place by the time of
Valencia-Mendoza’s sentencing was—and remains—
“materially more restrictive” than the earlier one. 912 F.3d
at 1223. “[T]he sentencing court could not deviate from the
statutory sentencing range,” we explained, “unless it found
that one of four specific factual circumstances was present.”
Id. Having made no such finding in Valencia-Mendoza’s
case, the state court was required to impose a within-range
sentence: “the top sentence of the guidelines range was the
maximum possible statutory punishment,” and thus, we
held, the maximum term for which his offense was
punishable. Id. The upshot of our analysis—even though we
did not say it in so many words—was that if the defendant
UNITED STATES V. ASUNCION 9
had been sentenced under Washington’s previous sentencing
regime, his crime would have been punishable by more than
one year, because under that system the judge had broad,
open-ended discretion to impose a sentence above the
guideline range (and thus above a year). 2
Indeed, the result in Valencia-Mendoza likely could not
have been reached without drawing this distinction between
Washington’s previous and current systems. In United States
v. Rodriquez, 553 U.S. 377 (2008), the Supreme Court
analyzed the significance of prior drug convictions under
Washington’s previous guideline system in deciding
whether those convictions triggered a recidivism penalty
under the Armed Career Criminal Act. Id. at 380. The Court
held that the recidivism penalty applies if the statutory
maximum for the offense equals or exceeds ten years,
regardless of any lower guideline range in a particular
defendant’s state case. Id. at 390–92. This was so largely
because of the discretion that guideline systems like
Washington’s (at the time) gave judges to impose sentences
above the range. Id. at 391. In light of the Supreme Court’s
holding in Rodriquez, it is difficult to see how we could have
reached the same result in Valencia-Mendoza if the
2
The Supreme Court’s 2004 decision in Blakely v. Washington,
542 U.S. 296 (2004) prompted Washington to amend its guideline
system such that judges no longer had broad latitude to impose above-
range sentences. In Blakely, the Court held that Washington’s guideline
system was unconstitutional because it allowed judges to impose
exceptional sentences on the basis of facts neither admitted by the
defendant nor found by a jury. Id. at 303–04. Accordingly, Washington’s
guideline system no longer allows judges to impose exceptional
sentences on the basis of any relevant factual circumstances.
10 UNITED STATES V. ASUNCION
defendant had been sentenced under Washington’s previous
guideline system. 3
Asuncion was sentenced for his prior state drug offenses
under Washington’s previous guideline system. And the
statute governing Asuncion’s three prior state convictions
prescribed a maximum prison sentence of more than one
year. Wash. Rev. Code § 69.50.401(d) (2000, 2004).
Therefore, even though Asuncion was sentenced within
guideline ranges whose top ends were no greater than one
year, the convictions were for felony drug offenses that
subjected him to the recidivism penalties prescribed by
21 U.S.C. § 841(b)(1)(A).
Asuncion protests that there is not really such a sharp
distinction between the current and previous guideline
systems in Washington, at least for purposes of the question
we are considering. He notes that in both systems the judge
must make factual findings before imposing a sentence
above the guideline range, and if the judge makes no such
findings, the defendant must be sentenced within the
guideline range. Asuncion notes further that even though the
system now permits above-guideline sentences based on
judge-found facts in only four enumerated circumstances,
the judge retains a certain amount of discretion in
3
Rodriquez considered whether the guideline system had affected
the “maximum term of imprisonment prescribed by law,” whereas
Valencia-Mendoza addressed a slightly different interpretive question:
whether the guideline system affected the term of imprisonment for
which an offense was “punishable.” Although this distinction was noted
in Valencia-Mendoza, 912 F.3d at 1223, we do not see how this
difference in wording alone could have supported the outcome in that
case.
UNITED STATES V. ASUNCION 11
determining whether some of those circumstances exist. 4
While these are fair points, it nonetheless remains true that a
judge’s discretion to impose an above-guideline sentence
was far greater under the previous system than the current
one—a distinction that was critical to our ruling in Valencia-
Mendoza. And whatever line-drawing difficulties could be
presented in future cases by that distinction, our decision in
Valencia-Mendoza—along with the Supreme Court’s
decision in Rodriquez—dictates the outcome here.
4
The four circumstances are:
(a) The defendant and the state both stipulate that
justice is best served by the imposition of an
exceptional sentence outside the standard range, and
the court finds the exceptional sentence to be
consistent with and in furtherance of the interests of
justice and the purposes of the sentencing reform act.
(b) The defendant’s prior unscored misdemeanor or
prior unscored foreign criminal history results in a
presumptive sentence that is clearly too lenient in light
of the purpose of this chapter, as expressed in RCW
9.94A.010.
(c) The defendant has committed multiple current
offenses and the defendant’s high offender score
results in some of the current offenses going
unpunished.
(d) The failure to consider the defendant’s prior
criminal history which was omitted from the offender
score calculation pursuant to RCW 9.94A.525 results
in a presumptive sentence that is clearly too lenient.
Wash. Rev. Code § 9.94A.535(2).
12 UNITED STATES V. ASUNCION
III
Although Asuncion’s three state convictions count as
prior drug felonies, he would still be subject to a lower
mandatory minimum sentence if section 401 of the First Step
Act applied to his case. Only his prior federal conviction
falls within the new label of “serious drug felony,” because
that was the only conviction for which he actually served
more than one year in prison. § 401(a)(1), 132 Stat. at 5220.
And the mandatory minimum sentence for a defendant with
one prior countable offense is now fifteen years.
§ 401(a)(2)(A)(i), 132 Stat. at 5220.
We have not yet published an opinion deciding whether
a defendant sentenced prior to the First Step Act’s enactment
in December 2018 is eligible for resentencing under section
401. We hold that Asuncion, who was sentenced in May
2018, is ineligible for resentencing, a conclusion that follows
inescapably from the statute’s text.
Section 401 says that its amendments “shall apply to any
offense that was committed before the date of enactment of
this Act, if a sentence for the offense has not been imposed
as of such date of enactment.” § 401(c), 132 Stat. at 5221. In
the context of the First Step Act, a sentence is “imposed”
when the district court pronounces the sentence, and not, as
Asuncion argues, when the conviction becomes final after
appeal. This plain meaning of the term “imposed” is
reinforced by other federal statutes. For example, Congress
directs district courts to “impose a sentence sufficient, but no
greater than necessary,” to comply with the purposes of
federal sentencing. 18 U.S.C. § 3553(a); see also, e.g., Gall
v. United States, 552 U.S. 38, 40 (2007). All circuits to have
considered the question have come to the same conclusion.
See United States v. Gonzalez, 949 F.3d 30, 42 (1st Cir.
2020); United States v. Aviles, 938 F.3d 503, 510 (3d Cir.
UNITED STATES V. ASUNCION 13
2019); United States v. Wiseman, 932 F.3d 411, 417 (6th Cir.
2019); United States v. Pierson, 925 F.3d 913, 928 (7th Cir.
2019), cert. granted, judgment vacated on other grounds,
140 S. Ct. 1291 (2020); Young v. United States, 943 F.3d
460, 463 (D.C. Cir. 2019); see also United States v. Jordan,
952 F.3d 160, 172 (4th Cir. 2020) (interpreting identical
language in section 403 of First Step Act); United States v.
Gomez, 960 F.3d 173, 177–78 (5th Cir. 2020) (same).
Because Asuncion’s sentence was imposed in May 2018,
months before the First Step Act was enacted, he is not
entitled to be resentenced according to its reforms.
AFFIRMED.