U.S. v. Almazan-Becerra, 05-10056.

Decision Date29 March 2007
Docket NumberNo. 05-10056.,05-10056.
Citation482 F.3d 1085
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Julio ALMAZAN-BECERRA, Defendant-Appellant.
CourtU.S. Court of Appeals — Ninth Circuit

Donald W. Searles, Fenwick & West LLP, San Francisco, CA, for defendant-appellant Julio Almazan-Becerra.

Barbara J. Valliere, Assistant United States Attorney, San Francisco, CA, for the plaintiff-appellee.

Appeal from the United States District Court for the Northern District of California; D. Lowell Jensen, District Judge, Presiding. D.C. No. CR-03-40212-DLJ.

Before J. CLIFFORD WALLACE, MICHAEL DALY HAWKINS, and SIDNEY R. THOMAS, Circuit Judges.

OPINION AND ORDER

WALLACE, Senior Circuit Judge.

ORDER

The opinion filed on August 1, 2006, cited at 456 F.3d 949 (9th Cir. 2006) is hereby withdrawn.

OPINION

Almazan-Becerra appeals from his sentence of seventy months imprisonment after a conviction of illegal reentry following deportation in violation of 8 U.S.C. § 1326. He argues that the district court's application of both a sixteen-level and a twelve-level enhancement based on prior felony drug convictions was erroneous. We have jurisdiction pursuant to 18 U.S.C. § 3742(a). We vacate the sentence and remand for resentencing.

I.

Almazan-Becerra is a Mexican national who was deported from the United States on three occasions: May 14, 1992, October 31, 1997, and September 12, 2002. On September 3, 2003, he was found in Northern California and later identified by his fingerprints. He was charged with and convicted of illegal re-entry, 8 U.S.C. § 1326. He does not appeal from that conviction. Rather, he contends that he was improperly sentenced based on two potentially relevant prior convictions.

In January 1995, Almazan-Becerra was convicted of violating California Health & Safety Code § 11360(a), a felony drug offense, for conduct involving marijuana. In 1998, he was convicted of violating California Health & Safety Code § 11379, a felony drug offense, for transporting methamphetamine.

The 1995 conviction was based on an indictment that twice charged that Almazan-Becerra committed "the crime of TRANSPORT/SELL/OFFER TO SELL MARIJUANA." The indictment also stated that Almazan-Becerra "did sell and offer to sell a controlled substance . . . ." Almazan-Becerra agreed to plead guilty to the crime. At the plea colloquy, Almazan-Becerra twice admitted that he did "either transport or sell or offer to sell marijuana . . . ." He was later asked "do you admit . . . that you did sell, transport or offer to sell marijuana ..." to which he answered, "Yes." Almazan-Becerra's counsel stipulated that the related police reports contained a factual basis to support his guilty plea. The reports described hand-to-hand sales of marijuana. Almazan-Becerra was sentenced to twenty-four months in prison.

The 1998 conviction was based on an amended charge that Almazan-Becerra committed the "crime of transport of a controlled substance . . . to wit, methamphetamine." During the plea colloquy, the judge stated, "It's alleged that you did transport a controlled substance, methamphetamine. To that charge how do you plead?" Almazan-Becerra answered, "Guilty." The court imposed a twelve-month sentence.

The district court sentenced Almazan-Becerra two days after the Supreme Court decided United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). In its remedial holding, the Court in Booker severed the mandatory aspect of the Sentencing Guidelines (Guidelines) and rendered them "effectively advisory." Id. at 245, 125 S.Ct. 738. The district court properly recognized that the Guidelines were not mandatory.

At sentencing, neither party challenged the district court's determination that Almazan-Becerra's base offense level was eight. The district court then applied a sixteen-level enhancement, based on its determination that the 1995 conviction qualified as "a drug trafficking offense for which the sentence imposed exceeded 13 months" under United States Sentencing Guidelines (U.S.S.G.) § 2L1.2(b)(1)(A).

The district court decided to make a downward departure based on the relatively minor nature of the 1995 conviction, which involved two sales of marijuana for approximately fifteen dollars each. The court also departed downward four levels based on its belief that the 1998 conviction would have required a twelve-level enhancement under U.S.S.G. § 2L1.2(b)(1)(B) as a "conviction for a felony drug trafficking offense for which the sentence imposed was 13 months or less," if the sixteen-level enhancement had not applied.

Almazan-Becerra argues that neither conviction qualifies for a drug trafficking enhancement. He also contends that the fact of the prior convictions must be submitted to a jury and found beyond a reasonable doubt.

II.

To determine whether a prior conviction qualifies for an enhancement, we apply the Taylor modified categorical approach. See United States v. Navidad-Marcos, 367 F.3d 903, 908 (9th Cir. 2004); see also Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). Under this standard, "we must first analyze the statute that formed the basis for the sentence enhancement." United States v. Rivera-Sanchez, 247 F.3d 905, 908 (9th Cir. 2001) (en banc). We have previously held that sections 11360(a) and 11379(a) of the California Health & Safety Code are overbroad and do not categorically qualify for drug trafficking enhancements. See Navidad-Marcos, 367 F.3d at 907-08 (Cal. Health & Safety Code § 11379(a) overbroad); Rivera-Sanchez, 247 F.3d at 908-09 (Cal. Health & Safety Code § 11360(a) overbroad).

Because a conviction under these statutes does not necessarily qualify for the enhancement, we must look to the "charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented" to determine if a prior conviction qualifies for an enhancement. Shepard v. United States, 544 U.S. 13, 16, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005). "Taylor is clear that any enquiry beyond statute and charging document must be narrowly restricted to implement the object of the statute and avoid evidentiary disputes." Id. at 23 n. 4, 125 S.Ct. 1254. "The idea of the modified categorical approach is to determine if the record unequivocally establishes that the defendant was convicted of the generically defined crime, even if the statute defining the crime is overly inclusive." United States v. Corona-Sanchez, 291 F.3d 1201, 1211 (9th Cir. 2002) (en banc). "Charging papers alone are never sufficient." Id.

III.

Almazan-Becerra contends that the district court abused its discretion by basing the extent of its downward departure on the erroneous legal assumption that the 1998 conviction merited the twelve-level enhancement. Ordinarily, we lack jurisdiction to review the extent of a downward departure. See United States v. Vizcarra-Angulo, 904 F.2d 22, 23 (9th Cir. 1990). We have jurisdiction to consider Almazan-Becerra's argument, however, to the extent the departure was premised on "an incorrect application of the sentencing guidelines." 18 U.S.C. § 3742(a). We review the extent of a sentencing departure for an abuse of discretion. See United States v. Menyweather, 431 F.3d 692, 701 (9th Cir. 2005), amended by 447 F.3d 625, 635 (9th Cir. 2006) ("Even before Booker, our task was to determine whether the extent of a departure was reasonable, so our cases applying abuse of discretion review to that question remain relevant after Booker"). The district court "is required to articulate the reasons for the extent of the departure in sufficiently specific language to allow appellate review. On appeal we may not search the record for the possible reasons for departure; instead, we must rely solely on the reasons expressed by the court below." United States v. Working, 224 F.3d 1093, 1102 (9th Cir. 2000) (en banc) (internal quotations and citations omitted). "A district court by definition abuses its discretion when it makes an error of law." Koon v. United States, 518 U.S. 81, 100, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996).

Based on an unspecified "report," the district court found at sentencing that Almazan-Becerra's 1998 conviction was for transporting methamphetamine with intent to sell. In the district court's view, the finding supported the section 2L1.2(b)(1)(B) enhancement. On appeal, however, the government conceded that the 1998 conviction does not qualify for the enhancement. See Transcript of Oral Argument at 12:05-13:30, United States v. Almazan-Becerra, No. 0510056 (Feb. 16, 2006). The government's concession reflected its understanding that a conviction for the transport of a controlled substance under section 11379 did not trigger the enhancement. See id.

We have identified transportation of a controlled substance for personal use as outside the scope of the drug trafficking enhancements. See Navidad-Marcos, 367 F.3d at 908; Rivera-Sanchez, 247 F.3d at 908-09. A conviction for transportation of a controlled substance with the intent to sell, however, certainly qualifies for a section 2L1.2(b)(1)(B) enhancement. Cf. United States v. Benitez-Perez, 367 F.3d 1200, 1204 (9th Cir. 2004) (holding that plain language of section 2L1.2 "includes as a qualifying offense possession with intent to distribute or dispense"); United States v. Rodriguez-Lara, 421 F.3d 932, 949 (9th Cir. 2005) (affirming enhancement under section 2L1.2(b)(1)(A) based on conviction for the transport of methamphetamine).

Nevertheless, the district court abused its discretion by applying the twelve-level enhancement for Almazan-Becerra's 1998 conviction. At the plea colloquy in the 1998 case, the government withdrew the charge of "possession or purchase [of a] controlled substance, methamphetamine, for sale" and replaced it with the charge of "transport[ing] ... a controlled substance." The parties have not...

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