U.S. v. Diaz-Argueta

• Citation: 564 F.3d 1047
• Decision Date: 24 April 2009
• Docket Number: No. 05-10224.,05-10224.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Anibal Jose DIAZ-ARGUETA, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

564 F.3d 1047

UNITED STATES of America, Plaintiff-Appellee, v. Anibal Jose DIAZ-ARGUETA, Defendant-Appellant.

No. 05-10224.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted January 13, 2006.

Filed April 24, 2009.

Cynthia S. Hahn, Reno, NV, for the defendant-appellant.

R. Don Gifford, Assistant United States Attorney, for the plaintiff-appellee.

Appeal from the United States District Court for the District of Nevada, Howard D. McKibben, District Judge, Presiding. D.C. No. CR-04-00094-HDM/RAM.

Before: JOHN T. NOONAN, A. WALLACE TASHIMA, and W. FLETCHER, Circuit Judges.

ORDER

Our opinion, dated May 16, 2006, is hereby withdrawn.

The petition for rehearing is DENIED. No further petitions for rehearing will be entertained.

OPINION

NOONAN, Circuit Judge:

Anibal Jose Diaz-Argueta (Diaz) appeals the sentence he received from the district court after pleading guilty to illegally reentering the United States following deportation in violation of 8 U.S.C. § 1326. We affirm the sentence of the district court.

PROCEDURE

Diaz was indicted for having been an alien found in the United States on June 29, 2004 after having been deported on March 13, 1996. He pleaded guilty on September 7, 2004. The Pre-Sentence Report reported that he had been convicted in California in 1995 for assault with a firearm. In support, the government submitted several documents from the Superior Court of the State of California, County of San Bernardino. After three sentencing hearings, the district court concluded from the state court records that Diaz had pled guilty to assault with a firearm, a felony, and that he had been convicted of that offense. The district court sentenced him at the lower end of the Guidelines to three years and ten months' imprisonment.

Diaz appeals his sentence.

ANALYSIS

The State Crime. Diaz points to the apparent mildness of his state sentence—109 days in the San Bernardino County Jail and two years probation—and argues that he was convicted of a misdemeanor. The minute order of the state court, relied on by the federal district court, is a judicial record that can be relied upon to prove the contrary. United States v. Snellenberger, 548 F.3d 699, 702 (9th Cir.2008) (en banc). The minute order showed that the "pronouncement of judgment was withheld." Under California law, when a defendant pleads guilty and the court suspends the pronouncement of judgment or imposition of sentence and grants probation, the offense is regarded as a felony for all purposes until judgment or sentence, and, if no judgment is pronounced, it remains a felony. People v. Esparza, 253 Cal.App.2d 362, 61 Cal.Rptr. 167, 169 (1967). Such is Diaz's conviction here.

For a second reason, his appeal fails. The statute provides:

§ 245. Assault with deadly weapon or force likely to produce great bodily injury; punishment (a)(2) Any person who commits an assault upon the person of another with a firearm shall be punished by imprisonment in the state prison for two, three, or four years, or in a county jail for not less than six months and not exceeding one year, or by both a fine not exceeding ten thousand dollars ($10,000) and imprisonment.

Cal.Penal Code § 245(a)(2) (West 1996). In the parlance of California law enforcement, a violation of the statute is a "wobbler" that may be punished either as a felony or as a misdemeanor. As the United States Supreme Court explains, "Under California law, a `wobbler' is presumptively a felony and remains a felony except when the discretion is actually exercised to make the crime a misdemeanor." Ewing v. California, 538 U.S. 11, 16, 123 S.Ct. 1179, 155 L.Ed.2d 108 (2003) (internal quotation marks omitted).

California Penal Code § 17(b) provides two ways in which a court may exercise such discretion. This statute distinguishes between misdemeanor and felony convictions under wobbler statutes in the following manner:

When a crime is punishable, in the discretion of the court, by imprisonment in the state prison or by fine or imprisonment in the county jail, it is a misdemeanor for all purposes under the following circumstances:

(1) After a judgment imposing a punishment other than imprisonment in state prison.

* * *

(3) When the court grants probation to a defendant without imposition of sentence and at the time of granting probation, or on application of the defendant or probation officer thereafter, the court declares the offense to be a misdemeanor.

Cal.Penal Code § 17(b) (West 1996).

At oral argument of this appeal, counsel for Diaz stated that "there was never a judgment entered." Accordingly, the first method of exercising discretion to reduce the felony to a misdemeanor was not exercised by the state court. There is nothing in the record to show that the second method was used. The presumption that the conviction was of a felony has not been overcome. See Garcia-Lopez v. Ashcroft, 334 F.3d 840, 844-45 (9th Cir.2003); United States v. Qualls, 172 F.3d 1136, 1137-38 (9th Cir.1999); United States v. Robinson, 967 F.2d 287, 292-93 (9th Cir.1992). We therefore uphold the district court's determination, albeit on a basis different from that on which it relied. Cf. United States v. Cortez-Arias, 403 F.3d 1111, 1114 n. 7, as amended, 425 F.3d 547(9th Cir.2005).

Diaz objects that the Terms and Conditions of Probation set by the state court do not show him forbidden to possess fire-arms as a felon. But he was forbidden to do so by operation of law. See Cal.Penal Code § 12021(c)(1) (West 1996).

The State Crime as a Crime Of Violence. Diaz argues that assault with a firearm is not a crime of violence because he received a sentence of less than one year. He reaches this conclusion by looking at the definition of "aggravated felony" in 8 U.S.C. § 1101(a)(43)(F). This argument supposes that the district court in sentencing Diaz referred to U.S.S.G. § 2L1.2(b)(1)(C), which provides for an enhancement for an aggravated felony and which refers back to 8 U.S.C. § 1101(a)(43)(F) for the definition of a crime of violence to be used in determining an aggravated felony.

The argument is ingenious but mistaken. Diaz was sentenced by reference to U.S.S.G. § 2L1.2(b)(1)(A)(ii). We have already held that a crime of violence need not be an aggravated felony to qualify for the 16-level enhancement under this guideline. See United States v. Pimentel-Flores, 339 F.3d 959, 960-61 (9th Cir.2003).

Diaz cites a footnote in Leocal v. Ashcroft, 543 U.S. 1, 11 & n. 8, 125 S.Ct. 377, 160 L.Ed.2d 271 (2004), holding that an alien's DUI conviction did not qualify as a "crime of violence" under 18 U.S.C. § 16 and was therefore not an aggravated felony under 8 U.S.C. § 1101(a)(43)(F). Leocal does not touch on U.S.S.G. § 2L1.2(b)(l)(A)(ii) and so does not undermine Pimentel-Flores. The Guidelines in that case and ours are focused not on an aggravated felony but on a crime of violence.

The Vitality of Almendarez-Torres. Diaz invites us not to rely on Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), which held that the government is not required to charge as a factor in the indictment every fact increasing the penalty. We have no reason to question Almendarez-Torres, which is favorably cited in Shepard v. United States, 544 U.S. 13, 26, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005). See also United States v. Lopez-Torres, 443 F.3d 1182, 1185 (9th Cir.2006) (noting that "[w]e have repeatedly rejected [the] argument" "that we should decline to follow the Supreme Court's holding in Almendarez-Torres"), abrogated on other grounds by Fernandez-Ruiz v. Gonzales, 466 F.3d 1121 (9th Cir.2006) (en banc).

The Sentencing Factors Set Out in 18 U.S.C. § 3553(a). Invoking United States v. Booker, 543 U.S. 220, 260-61, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), Diaz argues that his sentence should be reviewed for unreasonableness and in that light objects to the court's failure to take into account all of the considerations set out to guide sentencing in 18 U.S.C. § 3553(a). Instead, as in the old mandatory Guidelines days, the court simply turned to the Guidelines and used the sentencing range provided there.

The sentencing statute reads:

§ 3553. Imposition of a sentence

(a) Factors to be considered in imposing a sentence.—The court shall impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in paragraph (2) of this subsection. The court, in determining the particular sentence to be imposed, shall consider—

(1) the nature and circumstances of the offense and the history and characteristics of the defendant;

(2) the need for the sentence imposed—

(A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense;

(B) to afford adequate deterrence to criminal conduct;

(C) to protect the public from further crimes of the defendant; and

(D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner;

(3) the kinds of sentences available;

(4) the kinds of sentence and the sentencing range established for—

(A) the applicable category of offense committed by the applicable category of defendant as set forth in the guidelines—

(i) issued by the Sentencing Commission pursuant to section 994(a)(1) of title 28, United States Code, subject to any amendments made to such guidelines by act of Congress (regardless of whether such amendments have yet to be incorporated by the Sentencing Commission into amendments issued under section 994(p) of title 28); and

(ii) that, except as provided in section 3742...