U.S. v. Brown, 04-30219.
Citation | 417 F.3d 1077 |
Decision Date | 08 August 2005 |
Docket Number | No. 04-30219.,04-30219. |
Parties | UNITED STATES of America, Plaintiff-Appellee, v. Jasy Von BROWN, aka Jasy Drags Wolf, Defendant-Appellant. |
Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
David F. Ness, Assistant Federal Defender, Federal Defenders of Montana, Great Falls, MT, for the defendant-appellant.
Klaus P. Richter, Assistant United States Attorney, Billings, MT, for the plaintiff-appellee.
Appeal from the United States District Court for the District of Montana; Sam E. Haddon, District Judge, Presiding. D.C. No. CR-03-00016-SEH.
Before: SCHROEDER, Chief Judge, and GRABER and FISHER, Circuit Judges.
Defendant Jasy Von Brown pleaded guilty to one count of burglary, in violation of 18 U.S.C. § 1153(a) and Montana Code Annotated § 45-6-204. He appeals his sentence as a career offender under the United States Sentencing Guidelines (U.S.S.G.) § 4B1.1. In keeping with our decisions in United States v. Quintana-Quintana, 383 F.3d 1052, 1053 (9th Cir. 2004), cert. denied, ___ U.S. ___, 125 S.Ct. 1100, 160 L.Ed.2d 1085 (2005), and United States v. Smith, 390 F.3d 661, 666-67 (9th Cir.2004), we hold that enhancing Defendant's sentence on account of his prior convictions did not violate the Sixth Amendment, as interpreted by the Supreme Court in Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), and United States v. Booker, ___ U.S. ___, ___ _ ___, 125 S.Ct. 738, 755-56, 160 L.Ed.2d 621 (2005).
The base offense level for Defendant's crime of conviction was 17. U.S.S.G. § 2B2.1(a)(1). But, because the conviction qualified as a "crime of violence"1 and Defendant had at least two prior felony convictions for crimes of violence,2 he was sentenced as a career offender under U.S.S.G. § 4B1.1, and his offense level was increased to 29. After a three-point reduction for acceptance of responsibility, his total offense level was 26. Defendant's criminal history category was VI because of his five prior felony convictions and his sentencing as a career offender. U.S.S.G. § 4B1.1(a). With an offense level of 29 and a criminal history category of VI, the resultant sentencing range was 120 to 150 months; the court imposed a sentence of 148 months.
On appeal, Defendant raises two related issues pertaining to the career-offender enhancement.3 First, he argues that the fact of his prior convictions had to be proved to a jury beyond a reasonable doubt. That argument is foreclosed by Quintana-Quintana, 383 F.3d at 1053, which held that Blakely, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403, does not upset the rule that Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), carves out an exception for proving the fact of a prior conviction. Booker, 125 S.Ct. at 755-56, which applied Blakely to the federal Sentencing Guidelines, does not change the Sixth Amendment analysis. See Booker, 125 S.Ct. at 756 () (emphasis added); see also United States v. Cortez-Arias, 403 F.3d 1111, 1114 n. 8 (9th Cir.2005) (); United States v. Moreno-Hernandez, 397 F.3d 1248, 1255 n. 8 (9th Cir.2005) (same).
Defendant's second argument is that, even if the fact of a prior conviction need not be proved to a jury beyond a reasonable doubt, a jury must decide whether a prior conviction should be classified as a "crime of violence" for the purpose of determining career-offender status under U.S.S.G. § 4B1.1. We rejected a nearly identical argument in Smith, 390 F.3d at 666-67. There, we held that the district court determined no more than the "fact of a prior conviction" when it characterized the defendant's prior convictions as "violent felonies" for purposes of the Armed Career Criminal Act, 18 U.S.C. § 924(c). We reasoned that the categorical and modified categorical analyses conducted pursuant to Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), and employed in Smith, prohibit inquiry into the facts underlying a prior conviction. Smith, 390 F.3d at 664-66. We see no principled basis for a different rule under the career-offender provisions of the Sentencing Guidelines. See United States v. Riley, 183 F.3d 1155, 1158 (9th Cir.1999) ( ).
When the Taylor approach is followed, the categorization of a prior conviction as a "violent felony" or a "crime of violence" is a legal question, not a factual question coming within the purview of Apprendi, Blakely, and Booker.4 See, e.g., United States v. Lewis, 405 F.3d 511, 514 (7th Cir.2005) (); United States v. McGuire, 389 F.3d 225, 231 (1st Cir.2004) ( )(internal quotation marks and alterations omitted); United States v. Trala, 386 F.3d 536, 547 n. 15 (3d Cir.2004) ( ). Accordingly, Defendant's sentence was not based on an impermissible finding of fact, but only on the fact of his prior convictions. Therefore, there is no Sixth Amendment violation.
We have held that "where the district court did not treat the sentencing guidelines as advisory but the defendant's sentence was not enhanced by extra-verdict findings," a nonconstitutional sentencing error has occurred. See United States v. Ameline, 409 F.3d 1073, 1084 n. 8 (9th Cir.2005) (en banc). Both parties should notify the court within 10 days of the published date of this opinion if they want to pursue an Ameline remand. See id. at 1084 ().
BRIEFING ORDERED. Childs' four prior convictions were violent felonies. For that reason Shepard . . . affords Childs no relief.").
1. The indictment charged, and Defendant admitted in his plea agreement, that he burglarized a residence. This act satisfies the definition of "crime of violence" found in U.S.S.G. § 4B1.2: "The term `crime of violence' means any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that . . . is burglary of a dwelling [.]" (emphasis added).
2. Two of Defendant's prior convictions were for second-degree assault, a Class B felony that "has as an element the use, attempted use, or threatened use of physical force against the person of another," U.S.S.G. § 4B1.2(a)(1), and is punishable by up to 10 years' imprisonment. See Wash. Rev.Code §§ 9A.20.021(1)(b), 9A.36.021.
3. We review for plain error, because Defendant did not raise these arguments before the district court. United States v. Ameline, 409 F.3d 1073, 1078 (9th Cir.2005) (en banc).
4. The Supreme Court recently signaled that Sixth Amendment concerns are implicated when courts stray from the Taylor approach and make findings of fact about the prior conviction by referring to sources outside the formal record of conviction. See Shepard v. United States, ___ U.S. ___, ___ _ ___, 125 S.Ct. 1254, 1262-63, 161 L.Ed.2d 205 (2005) (plurality) ( ); id. at 1264 (Thomas, J., concurring...
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