United States v. James Nevels, III ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 5 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 19-30041
Plaintiff-Appellee, D.C. No.
1:18-cr-00025-SPW-1
v.
JAMES N. NEVELS III, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the District of Montana
Susan P. Watters, District Judge, Presiding
Submitted March 3, 2021**
Portland, Oregon
Before: PAEZ and WATFORD, Circuit Judges, and TUNHEIM,*** District Judge.
James Nevels, III appeals from the district court’s judgment imposing a
sentence of 180 months imprisonment and 5 years of supervised release.
*
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 John R. Tunheim, Chief United States District Judge
for the District of Minnesota, sitting by designation.
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Specifically, Nevels challenges the district court’s application of a career-offender
enhancement under U.S.S.G. § 4B1.1 based on Nevels’s prior convictions for
controlled substance offenses. In imposing this sentence, the district court relied
solely on a presentence investigation report (PSR) that did not include the statutes
under which Nevels had previously been convicted. We affirm the district court’s
sentence.
The district court erred when it relied on a PSR that did not include the
statutes of conviction to impose a career-offender enhancement under U.S.S.G.
§ 4B1.1. See United States v. Pimentel-Flores, 339 F.3d 959, 967–68 (9th Cir
2003). The fact that Nevels’s predicate offenses were controlled substance
offenses, rather than crimes of violence, does not render reliance on the PSR
permissible because the district court was still obligated to perform a categorical
analysis, which requires analyzing the statutes of conviction. See United States v.
Shumate, 329 F.3d 1026, 1029 (9th Cir. 2003).
Because Nevels did not object below, we review only for plain error, and
here the district court’s error did not affect Nevels’s substantial rights. See United
States v. Olano, 507 U.S. 725, 734–35 (1993). The government has moved to
supplement the record with the documents that the probation officer reviewed in
preparing Nevels’s PSR, and those documents identify the statutes of conviction
for two of Nevels’s prior offenses. Rather than remand this case to the district
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court to consider these same records, we take judicial notice of these documents
and conclude that the underlying convictions qualify as controlled substance
offenses under U.S.S.G. § 4B1.2. See United States v. Black, 482 F.3d 1035, 1041
(9th Cir. 2007). Indeed, Nevels does not contend that the underlying convictions
do not qualify as predicate offenses for a career-offender enhancement under the
sentencing guidelines. The convictions therefore support the application of a
career-offender enhancement under U.S.S.G. § 4B1.1.
The government’s motion to supplement the record, Dkt. 31, is GRANTED.
AFFIRMED.