Reina–rodriguez v. U.S.

• Decision Date: 13 September 2011
• Docket Number: No. 08–16676.,08–16676.
• Parties: Hector REINA–RODRIGUEZ, Petitioner–Appellant,v.UNITED STATES of America, Respondent–Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

655 F.3d 1182

11 Cal. Daily Op. Serv. 11,683

2011 Daily Journal D.A.R. 13,881

Hector REINA–RODRIGUEZ, Petitioner–Appellant,

v.UNITED STATES of America, Respondent–Appellee.

No. 08–16676.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 9, 2011.Filed Sept. 13, 2011.

John M. Sands, Federal Public Defender, Christopher R. Kilburn, Brian I. Rademacher, Lee Tucker, Assistant Federal Public Defenders, Tucson, AZ, for appellant Reina–Rodriguez.Dennis K. Burke, United States Attorney, Christina M. Cabanillas, Appellate Chief, Elizabeth Adair Strange, Assistant United States Attorney, Tucson, AZ, for appellee United States of America.Appeal from the United States District Court for the District of Arizona, David C. Bury, District Judge, Presiding. D.C. Nos. 4:07–cv–00640–DCB, 4:04–cr–02415–DCB–GE.Before: BETTY B. FLETCHER and SIDNEY R. THOMAS, Circuit Judges, and NANCY GERTNER, District Judge.^*

ORDER

THOMAS, Circuit Judge:

The opinion filed on June 22, 2011 is WITHDRAWN. A new opinion will be filed concomitantly with this order. The order filed August 19, 2011 granting the United States an extension of time in which to file a petition for rehearing is VACATED as moot. The parties will be permitted to file new petitions for rehearing and rehearing en banc as to the new opinion, if they choose to do so.

OPINION

In this appeal, we consider whether our decision in United States v. Grisel has retroactive effect. We conclude that it does, and we reverse the judgment of the district court.

I

Hector Reina–Rodriguez appeals the district court's denial of his 28 U.S.C. § 2255 motion to correct a federal sentencing enhancement imposed on account of his Utah conviction for burglarizing a “dwelling.” Reina–Rodriguez was indicted in federal district court for illegal re-entry after deportation, in violation of 8 U.S.C. § 1326 and he pled guilty without a plea agreement.

Under the Sentencing Guidelines, a violation of 8 U.S.C. § 1326 has a base offense level of eight. U.S.S.G. § 2L1.2. The district court applied a 16–level enhancement because Reina–Rodriguez had previously been convicted of second-degree felony burglary in Utah—specifically, “burglary of a dwelling” under Utah Code Ann. § 76–6–202(2)—which the court concluded was a felony “crime of violence” under the Guidelines. See U.S.S.G. § 2L1.2(b)(1)(A)(ii) & n.1(B)(iii). Taking into account other adjustments and mitigating factors, the district court sentenced Reina–Rodriguez to 51 months, followed by 36 months of supervised release, and a $100 special assessment.

At his sentencing, Reina–Rodriguez objected to the 16–level enhancement. He conceded that he had been convicted of burglarizing a dwelling under Utah law. But he claimed the enhancement did not apply because “dwelling” was defined more broadly under Utah law, see Utah Code Annotated § 76–6–201(2),¹ than under the Guidelines and the record did not establish that the building he burglarized was a “dwelling” under the Guidelines. As a result, he argued, his Utah burglary conviction did not qualify as burglary of a dwelling under the Guidelines.

The district court disagreed. The judge told Reina–Rodriguez at sentencing that he had conducted a sua sponte investigation and had taken judicial notice of public property records in Weber County, Utah, which showed that the burglarized building was a single-resident building and, hence, a “dwelling” under the Guidelines. Thus, the court concluded, Reina–Rodriguez's conviction matched the Guidelines' definition of burglary.

After being sentenced, Reina–Rodriguez filed a Rule 35 motion to modify his sentence. See Fed.R.Crim.P. 35(a). He argued that the district court erred by not providing him notice of its sua sponte investigation or its reliance on the public property records. The district court denied the motion, concluding that any error was harmless.

Reina–Rodriguez filed a direct appeal, challenging the 16–level enhancement. A panel of our Court affirmed the district court. United States v. Reina–Rodriguez, 468 F.3d 1147 (9th Cir.2006). The panel concluded that it did not need to address the question of whether the district court correctly relied on the public property records. Id. at 1154 n. 8. Instead, the panel applied the categorical and modified categorical analysis first articulated in Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990),² and determined that “burglary of a dwelling under Utah law categorically fits the Guidelines' definition of burglary of a dwelling.” Reina–Rodriguez, 468 F.3d at 1157. As part of its analysis, the panel reasoned that structures adapted for sleeping or lodging, which are “dwellings” under Utah law, categorically qualify as dwellings under the Guidelines. See id. at 1156–57. Thus, the panel concluded, the district court correctly applied the 16–level enhancement.

After the panel affirmed the district court in Reina–Rodriguez, our Court issued an en banc opinion in United States v. Grisel, 488 F.3d 844 (9th Cir.2007) (en banc). In Grisel, we overruled Reina–Rodriguez and other decisions “to the extent that [they] suggest[ed] that state statutes satisfy [ Taylor's] categorical inquiry when they define burglary to include non-buildings adapted for overnight accommodation....” 488 F.3d at 851 n. 5. After Grisel, courts must utilize the modified categorical approach to determine whether a “dwelling” in Utah meets the Guidelines' definition of “dwelling.” See id. A non-building adapted for accommodation—e.g., a vehicle or boat—may still qualify as a “dwelling” under the Guidelines, but “it does not do so categorically.” Id.

In light of Grisel, Reina–Rodriguez filed a motion with the district court under 28 U.S.C. § 2255, asking it to vacate, set aside, and correct his sentence. He argued that Grisel should be applied retroactively and that his conviction should be set aside because “the Grisel court specifically overruled the previous Reina–Rodriguez panel's opinion.” The district court denied the motion because Reina–Rodriguez did not “establish that the decision in Grisel should operate retroactively or that Grisel provides him any relief.”

Reina–Rodriguez moved for reconsideration, but the district court denied that motion, as well. The district court acknowledged that Grisel overruled Reina–Rodriguez, at least in part: “[A]fter Grisel, a modified categorical analysis must be utilized in the Ninth Circuit to determine if there has been a crime of violence that involved a dwelling as defined by Grisel.” But, the court reasoned, both it and we had met the dictates of the new rule by applying a modified categorical approach.

Reina–Rodriguez requested a certificate of appealability, but the district court denied the request. Among other reasons, it concluded that “the issues raised in the COA have previously been addressed to, seriously considered by, and resolved against this Court and the Ninth Circuit Court of Appeals.” We, however, granted Reina–Rodriguez's request for a certificate of appealability with respect to the question of “whether appellant's sentence is unlawful based on his sentencing enhancement for a prior crime of violence based on a Utah burglary conviction.”

We have jurisdiction, under 28 U.S.C. § 2253, to review the district court's denial of Reina–Rodriguez's § 2255 motion and his motion for reconsideration. We review de novo: (1) the district court's denial of a 28 U.S.C. § 2255 motion, United States v. Gamba, 541 F.3d 895, 898 (9th Cir.2008); (2) the district court's interpretation of the Sentencing Guidelines, United States v. Salazar–Mojica, 634 F.3d 1070, 1072 (9th Cir.2011); and (3) all other questions of law, United States v. Millis, 621 F.3d 914, 916 (9th Cir.2010).

II

Generally speaking, new constitutional rules of criminal procedure do not operate retroactively for cases filed by state prisoners ³ seeking collateral federal habeas relief. Teague v. Lane, 489 U.S. 288, 310, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). The primary question in this case is whether Teague precludes retroactive application of Grisel. We conclude that it does not.

The threshold questions for Teague application are whether the articulated rule is (1) a new constitutional rule and (2) procedural or substantive. If the threshold qualifications for Teague applicability are satisfied, there are two identified additional exceptions to the doctrine. Beard v. Banks, 542 U.S. 406, 411, 124 S.Ct. 2504, 159 L.Ed.2d 494 (2004) (citations and internal quotation marks omitted). The first Teague exception that the Supreme Court has described is for “rules forbidding punishment of certain primary conduct [or to] rules prohibiting a certain category of punishment for a class of defendants because of their status or offense.” Id. at 416, 124 S.Ct. 2504 (citations and internal quotation marks omitted). However, as the Supreme Court has noted, rules falling under this “exception” are “more accurately characterized as substantive rules not subject to the bar.” Schriro v. Summerlin, 542 U.S. 348, 352 n. 4, 124 S.Ct. 2519, 159 L.Ed.2d 442 (2004). In other words, what has been categorized traditionally as an exception is a restatement of the threshold requirement that the new rule be procedural rather than substantive. See Beard, 542 U.S. at 411 n. 3, 124 S.Ct. 2504 (citations and internal quotation marks omitted).

Under the second exception, Teague does not apply to “watershed rules of criminal procedure implicating the fundamental fairness and accuracy of the criminal proceeding.” Id. at 417, 124 S.Ct. 2504 (citations and internal quotation marks omitted).

There are several reasons why Teague does not apply to Grisel.

A

First, Teague applies only to “new constitutional rules of criminal procedure.” Danforth v. Minnesota, 552 U.S. 264, 274, 128 S.Ct. 1029, 169 L.Ed.2d 859 (2008) (quoting Teague, 489 U.S. at 310, 109 S.Ct. 1060) (emphasis added). If the new rule is not founded on...