U.S.A v. Denton

Decision Date09 July 2010
Docket NumberNo. 09-50253.,09-50253.
Citation611 F.3d 646
PartiesUNITED STATES of America, Plaintiff-Appellee,v.Tramell D. DENTON, Defendant-Appellant.
CourtU.S. Court of Appeals — Ninth Circuit

COPYRIGHT MATERIAL OMITTED

Michael Tanaka, Deputy Federal Public Defender, FPDCA-Federal Public Defender's Office, Los Angeles, CA, for the appellant.

Jayne Kim, Assistant U.S. Attorney, and Michael J. Raphael, Assistant U.S. Attorney, Office of the U.S Attorney, Los Angeles, CA, for the appellee.

Appeal from the United States District Court for the Central District of California, Robert J. Timlin, District Judge, Presiding. D.C. No. 5:08-cr-00257-RT-1.

Before RONALD M. GOULD and CARLOS T. BEA, Circuit Judges, and DONALD W. MOLLOY,** District Judge.

ORDER

The opinion filed on March 24, 2010, is hereby withdrawn and replaced with an opinion filed concurrently with this order.

With the filing of the new opinion, the Plaintiff-Appellee's petition for panel rehearing is DENIED.

OPINION

BEA, Circuit Judge:

Tramell Denton appeals a federal district court order revoking his supervised release and sentencing him to nine months in prison. The district court found Denton physically abused his girlfriend while he was on supervised release from a prior conviction. Although the state authorities did not charge 1 Denton with domestic abuse, the district court found that Denton's conduct could have been charged under California Penal Code section 273.5. A violation of that section is punishable as either a felony or a misdemeanor; it is known as a “wobbler,” or “alternative felony/misdemeanor,” under California law. The district court held Denton's conduct was a Grade A violation under the Sentencing Guidelines because wobbler offenses are presumptively considered felonies, punishable by more than one year in prison. 2

In this case, we must decide whether a defendant's uncharged conduct, which would be chargeable as a wobbler offense-an offense that may be charged as either a misdemeanor or a felony-is presumptively a felony, punishable by more than one year in prison, for the purposes of calculating whether the defendant committed a Grade A, B, or C violation of his supervised release. We hold that the presumption that a charged offense under a wobbler statute is a felony does not apply to uncharged conduct. We reverse and remand to the district court to exercise its discretion in deciding whether the defendant's conduct was felonious.

Factual Background

In 1994, the United States District Court for the Southern District of Mississippi convicted Denton of possession of cocaine base with intent to distribute, in violation of 21 U.S.C. § 841(a)(1). The district court sentenced Denton to 160 months' imprisonment and imposed a five-year term of supervised release. The conditions of Denton's supervised release required Denton to refrain from drug use and to refrain from committing another federal, state, or local crime while on supervised release. Denton began serving his supervised release in June 2005.

In November 2008, the Rialto Police Department filed a police report which related that Denton had physically abused his live-in girlfriend. According to the police report, Denton slapped his girlfriend across the face, choked her, and dragged her by her hair. California state police arrested Denton two days later, but the State of California, for whatever reasons, ultimately declined to charge him with domestic violence under California Penal Code section 273.5.3

The next month, the United States Probation Office for the Central District of California (“USPO”) filed a Petition on Probation and Supervised Release (the “Petition”) in district court. The Petition alleged Denton violated the terms of his supervised release because Denton had (1) tested positive five times for marijuana use; (2) “inflicted corporal injury on a cohabitant,” in violation of California Penal Code section 273.5; and (3) failed to notify the USPO that the California state police had arrested him for physically abusing his live-in girlfriend in November 2008.

The district court held a hearing, where Denton admitted he had tested positive three times for marijuana use, and admitted he had failed to notify the USPO of his November 2008 arrest. However, Denton denied he had physically abused his live-in girlfriend, and denied the other two allegations of marijuana use.

The court held a further hearing, and the government moved to dismiss the marijuana allegations that Denton disputed, but declined to dismiss the domestic violence allegation. The government introduced into evidence a police report that related Denton's assault on his girlfriend in November 2008. Denton declined to object to the police report or to contest the facts stated in the report.4

The district court found Denton violated the terms of his supervised release. Specifically, the court found by a preponderance of the evidence that Denton inflicted corporal injury on a cohabitant, in violation of California Penal Code section 273.5.5

The district court found that, because a domestic abuse offense is punishable by up to four years' imprisonment, the domestic abuse offense is a Grade A violation of Denton's supervised release.6 The court then calculated Denton's sentencing range under the Guidelines as 24-30 months' imprisonment for violating his supervised release, based in part on the court's finding that Denton committed a Grade A violation.7 After reviewing the 18 U.S.C. § 3553(a) sentencing factors, the court departed downward and sentenced Denton to nine months' imprisonment.8 Denton timely appealed.

Standard of Review

This court reviews de novo claims of error in a district court's order interpreting the Sentencing Guidelines and reviews for abuse of discretion the district court's application of the Guidelines to the facts of a case. United States v. Marler, 527 F.3d 874, 876-77 (9th Cir.2008).

Analysis

Denton does not appeal the district court's holding that he violated the terms of his supervised release by physically abusing his live-in girlfriend. He appeals only the district court's characterization of his offense as a Grade A violation of his supervised release.

Courts may revoke a term of supervised release and require the defendant to serve in prison all or part of the term of supervised release “if the court ... finds by a preponderance of the evidence that the defendant violated a condition of supervised release.” 18 U.S.C. § 3583(e)(3). In determining whether a defendant violated the conditions of his supervised release, a court may consider the defendant's commission of a crime even if the government ultimately did not prosecute the defendant for that crime. U.S.S.G. § 7B1.1, cmt. 1; United States v. Jolibois, 294 F.3d 1110, 1114 (9th Cir.2002) (“A [supervised release] violation ... may be found whether [the defendant] was ever indicted or convicted of [the] particular offense.”).

When sentencing a defendant for violating the conditions of his supervised release, a court must determine the applicable advisory sentencing range under the Guidelines. See United States v. Carty, 520 F.3d 984, 991 (9th Cir.2008) (en banc) (“All sentencing proceedings are to begin by determining the applicable Guidelines range.”). A failure to calculate the correct advisory range constitutes procedural error. Id. at 993. We reverse sentence determinations when a district court has committed a significant procedural error. Id.

To calculate the correct Guidelines sentencing range for a violation of a defendant's supervised release, the sentencing court must determine whether the violation is a Grade A, Grade B, or Grade C violation.9 U.S.S.G. § 7B1.1. The relevant portion of the Sentencing Guidelines defines a Grade A violation as conduct constituting “a federal, state, or local offense punishable by a term of imprisonment exceeding one year that ... is a crime of violence.” U.S.S.G. § 7B1.1(a)(1). The relevant portion of the Sentencing Guidelines defines a Grade C violation as conduct constituting “a federal, state, or local offense punishable by a term of imprisonment of one year or less.” U.S.S.G. § 7B1.1(a)(3).

Whether a defendant has committed a Grade A or Grade C violation of his supervised release depends on the potential punishment for the underlying offense. See Jolibois, 294 F.3d at 1112. Under California law, a person who commits a domestic violence offense “is guilty of a felony, and upon conviction thereof shall be punished by imprisonment in the state prison for two, three or four years, or in a county jail for not more than one year.” Cal.Penal Code. § 273.5. Although the California Penal Code refers to domestic abuse as a felony, under the Guidelines, it may be either a Grade A violation or a Grade C violation depending on the length of the defendant's sentence. See, e.g., United States v. Bridgeforth, 441 F.3d 864, 871-72 (9th Cir.2006). As the Supreme Court has held in another context, the California domestic abuse statute is a “wobbler,” in which an offense under the statute can be punished either as a felony or as a misdemeanor. See Ewing v. California, 538 U.S. 11, 16, 123 S.Ct. 1179, 155 L.Ed.2d 108 (2003) (interpreting California law).

Under California law, a “wobbler” statute “is presumptively a felony and ‘remains a felony except when the discretion is actually exercised’ to make the crime a misdemeanor.” Id. at 16, 123 S.Ct. 1179(quoting People v. Williams, 27 Cal.2d 220, 229, 163 P.2d 692 (1945)). This Circuit has not decided whether this “wobbler presumption” applies to uncharged conduct. We observe that California courts have stated the wobbler presumption applies to charged conduct. See, e.g., People v. Mincey, 2 Cal.4th 408, 453, 6 Cal.Rptr.2d 822, 827 P.2d 388 (1992) (holding the felony statute of limitations applies to a wobbler offense initially charged as felony, without regard to the ultimate reduction to a misdemeanor); People v. McElroy, 126 Cal.App.4th...

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