U.S. v. Grajeda

• Decision Date: 21 September 2009
• Docket Number: No. 07-50387.,07-50387.
• Citation: 581 F.3d 1186
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Gerardo GRAJEDA, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

581 F.3d 1186

UNITED STATES of America, Plaintiff-Appellee, v. Gerardo GRAJEDA, Defendant-Appellant.

No. 07-50387.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 7, 2008.

Filed September 21, 2009.

Vincent J. Brunkow, Federal Defenders of San Diego, Inc., San Diego, CA, for the defendant-appellant.

Karen P. Hewitt, United States Attorney, Bruce R. Castetter, Assistant U.S. Attorney, Chief, Appellate Section, Eugene S. Litvinoff and Mark R. Rehe, Assistant U.S. Attorneys, San Diego, CA, for the plaintiff-appellee.

Appeal from the United States District Court for the Southern District of California, Marilyn L. Huff, District Judge, Presiding. D.C. No. CR-07-00214-H-01.

Before: RAYMOND C. FISHER and RICHARD A. PAEZ, Circuit Judges, and JAMES L. ROBART, District Judge.^*

PAEZ, Circuit Judge:

Gerardo Grajeda appeals from the 78-month sentence imposed following his plea of guilty to illegal reentry in violation of 8 U.S.C. § 1326. In arriving at this sentence, the district court applied a sixteen-level enhancement to Grajeda's offense level based on a determination that Grajeda had been previously convicted of assault with a deadly weapon or by means likely to produce great bodily injury under California Penal Code section 245(a)(1), and that such conviction was a "crime of violence" under United States Sentencing Guidelines ("U.S.S.G.") § 2L1.2(b)(1)(A)(ii).

In this appeal, we consider whether a prior conviction for a violation of California Penal Code section 245(a)(1) qualifies as a "crime of violence" within the meaning of U.S.S.G. § 2L1.2(b)(1)(A)(ii). We conclude that it does. We also consider and reject Grajeda's claims that the district court failed to resolve disputed factual issues concerning his prior convictions, as required by Rule 32(i) of the Federal Rules of Criminal Procedure, and that the district court erred by enhancing his sentence on the basis of prior convictions that were neither alleged in the indictment nor proven beyond a reasonable doubt. We therefore affirm the sentence, but remand for the district court to delete the reference in the judgment to 8 U.S.C. § 1326(b) as a crime of conviction.

I. Factual Background

Grajeda, a Mexican citizen, was indicted on January 31, 2007, on one count of illegal reentry in violation of 8 U.S.C. § 1326. Grajeda pled guilty before a magistrate judge, and, on August 20, 2007, the district court accepted his plea.

A probation officer prepared and submitted a Presentence Report ("PSR") for the court's consideration. The PSR outlined a lengthy criminal record, including a 1996 conviction for assault with a deadly weapon or by means likely to produce great bodily injury, in violation of California Penal Code section 245(a)(1). The report calculated an advisory guidelines range of seventy to eighty-seven months, and recommended a sentence of seventy-eight months. The guidelines calculation relied upon application of a sixteen-level enhancement to Grajeda's offense level based on a determination that Grajeda's prior conviction under California Penal Code section 245(a)(1) was a crime of violence. Grajeda objected to the PSR on the ground that the statutory maximum for illegal reentry was two years, and argued that his prior convictions could not be used to sentence him beyond that maximum because they were not alleged in the indictment and proven beyond a reasonable doubt to a jury, and, alternatively, because they were not proven by clear and convincing evidence.

The district court conducted a combined plea and sentencing hearing on August 20, 2007. The court overruled Grajeda's objections to the PSR, adopted the PSR's recommendations, and sentenced Grajeda to seventy-eight months in prison. The judgment listed the "Title and Section" of the offense as "8 USC 1326(a) and (b)." Grajeda timely appealed.

II. Standard of Review

We review de novo the district court's compliance with Rule 32 of the Federal Rules of Criminal Procedure. See United States v. Thomas, 355 F.3d 1191, 1194 (9th Cir.2004). Whether a conviction under California Penal Code section 245(a)(1) constitutes a "crime of violence" under U.S.S.G. § 2L1.2(b)(1)(A)(ii) is a question of law that we review de novo. United States v. Esparza-Herrera, 557 F.3d 1019, 1021-22 (9th Cir.2009) (per curiam).

III. Rule 32

Grajeda first objects to his sentence on the ground that the district court failed to resolve factual disputes regarding the prior convictions alleged in the PSR; he argues that in failing to do so, the court violated Rule 32 of the Federal Rules of Criminal Procedure. We disagree with Grajeda's characterization of the dispute presented to the district court. Because Grajeda's objections to the PSR were legal, not factual, the district court was not required to make any factual determinations, and so committed no error.

Rule 32 provides that a sentencing court "may accept any undisputed portion of the presentence report as a finding of fact," but that the court "must—for any disputed portion of the presentence report or other controverted matter—rule on the dispute or determine that a ruling is unnecessary either because the matter will not affect sentencing, or because the court will not consider the matter in sentencing." Fed. R.Crim.P. 32(i)(3)(A)-(B). On appeal, Grajeda argues that he "controverted" the fact of his prior convictions in his objections to the PSR, and that the district court improperly relied on the 1996 section 245(a)(1) conviction listed in the PSR to enhance his sentence without ruling on the factual dispute.

A review of Grajeda's objections, however, as laid out in his sentencing memorandum, leaves no doubt that his objections raised only legal arguments, not factual ones. Grajeda did not controvert the accuracy of the PSR or argue that he had not been convicted of the listed crimes. Rather, he argued that under United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), the government was required to prove the prior convictions beyond a reasonable doubt, or, alternatively, by clear and convincing evidence, before the court could rely on the convictions to enhance his sentence, and that the government had failed to do so. The transcript from the sentencing hearing also reflects that Grajeda's objections to use of the prior convictions in sentencing were purely legal, as Grajeda's counsel acknowledged the prior felony conviction under section 245(a)(1) and noted only that he had "submitted some legal objections" to the proposed sentencing enhancement.

Finally, the district court did rule on Grajeda's objections, expressly overruling them during the sentencing hearing. The court's ruling was proper under United States v. Romero-Rendon, 220 F.3d 1159 (9th Cir.2000), which held that an "uncontroverted PSR" is "clear and convincing evidence" of a prior conviction, and supports the application of a sentencing enhancement based on such conviction. Id. at 1165. The district court thus complied with Rule 32 and did not err by relying on the prior convictions listed in the PSR.

IV. Crime of Violence Enhancement

To determine whether the district court properly applied the sixteen-level "crime of violence" sentencing enhancement in U.S.S.G. § 2L1.2(b)(1)(A)(ii) (2006)¹ based on Grajeda's conviction under California Penal Code section 245(a)(1), we apply the approach set forth in Taylor v. United States, 495 U.S. 575, 602, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). Esparza-Herrera, 557 F.3d at 1022. We first consider whether the offense defined by section 245(a)(1) is categorically a crime of violence by assessing whether the "full range of conduct covered by [the statute] falls within the meaning of that term." United States v. Juvenile Female, 566 F.3d 943, 946 (9th Cir.2009) (quoting Valencia v. Gonzales, 439 F.3d 1046, 1049 (9th Cir.2006)). If so, our inquiry is complete. If not, we turn to the modified categorical approach "to determine if there is sufficient evidence[in the record] to conclude that [Grajeda] was convicted of the elements of the generically defined crime." United States v. Vidal, 504 F.3d 1072, 1077 (9th Cir.2007) (en banc) (quoting Chang v. INS, 307 F.3d 1185, 1189 (9th Cir.2002)) (first alteration in original). Here, because we conclude that section 245(a)(1) is categorically a crime of violence, we do not apply the modified categorical approach.

A.

An offense is a "crime of violence" for purposes of § 2L1.2(b)(1)(A)(ii) if it either (1) constitutes one of the crimes listed in the "enumerated offense" prong of the definition or (2) "has as an element the use, attempted use, or threatened use of physical force against the person of another" under the definition's second clause, referred to as the "element" prong or test. U.S.S.G. § 2L1.2, cmt. n. 1(B)(iii) (2006);² see also United States v. Gomez-Leon, 545 F.3d 777, 787-88 (9th Cir.2008) (detailing and labeling the approaches).

On appeal, the government argues that assault with a deadly weapon or force likely to cause great bodily injury under section 245(a)(1) requires proof of the use, attempted use, or threatened use of physical force against another person, and that the offense is therefore a crime of violence under the element prong of the § 2L1.2 definition. We agree, and therefore need not address whether section 245(a)(1) also qualifies as an "aggravated assault" under the enumerated offense prong of § 2L1.2.

Over the past several years, courts have endeavored to delineate the contours of the various "crime of violence" definitions. See Gomez-Leon, 545 F.3d at 786-88 (providing overview). The most significant advances have concerned the mens rea required to prove "use of physical force." In Leocal v. Ashcroft, the Supreme Court held that the phrase "use ... of physical force against the person or property of another," contained in the crime of violence definition provided in 18 U.S.C. § 16(a),³ required proof of active employment of force,...