U.S. v. Espinoza-Cano

• Decision Date: 08 August 2006
• Docket Number: No. 05-10339.,05-10339.
• Citation: 456 F.3d 1126
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Juan ESPINOZA-CANO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

456 F.3d 1126

UNITED STATES of America, Plaintiff-Appellee, v. Juan ESPINOZA-CANO, Defendant-Appellant.

No. 05-10339.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 7, 2006.

Filed August 8, 2006.

Josh Cohen, Assistant Federal Public Defender, San Francisco, CA, for the defendant-appellant.

Robert David Rees, Assistant United States Attorney, San Francisco, CA, for the plaintiff-appellee.

Appeal from the United States District Court for the Northern District of California, Susan Y. Illston, District Judge, Presiding. D.C. No. CR-04-0379 SI.

Before: THOMPSON and CALLAHAN, Circuit Judges, and MILLER,^* District Judge.

MILLER, District Judge:

Defendant Juan Espinoza-Cano appeals his conviction and sentence in the district court for illegal re-entry into the United States following deportation, in violation of 8 U.S.C. § 1326(b). This appeal requires us to address two provisions of the advisory U.S. Sentencing Guidelines ("Guidelines"). Under section 2L1.2(b)(1)(C) of the Guidelines, the district court, when calculating the Guideline range for a § 1326 conviction, must enhance the defendant's offense level if the defendant was convicted of an aggravated felony prior to the deportation. We examine whether the district court, in determining if a prior conviction qualifies as an aggravated felony, may properly consider, in light of Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005), a police report that has been incorporated by reference into the criminal complaint underlying the prior conviction and that recites a mutually agreed-upon statement of facts. We also address for the first time the standard of review a district court must apply to a prosecutor's decision not to file a motion pursuant to section 3E1.1(b) of the Guidelines requesting that the defendant receive a third level reduction for acceptance of responsibility.¹ These are important considerations because, as we have already said, the Guidelines are the "starting point" for a district court in determining what constitutes a fair, just, and reasonable sentence. United States v. Cantrell, 433 F.3d 1269, 1280 (9th Cir. 2006).

We affirm the district court's finding that Espinoza-Cano's prior conviction was a prior aggravated felony. In so doing, we approve of the district court's consideration of a police report incorporated into a criminal complaint in making that finding. We also hold that the proper standard for a district court's review of a prosecutor's decision not to file a motion under section 3E1.1(b) is the same standard for review of a decision to file a substantial assistance motion under section 5K1.1 of the Guidelines: The government may not refuse to file a motion on the basis of an unconstitutional motive or for reasons not rationally related to a legitimate government interest.²

I. FACTUAL AND PROCEDURAL BACKGROUND

In 2002, Espinoza-Cano, a citizen of Mexico, was residing in the United States. On May 30, 2002, he and an accomplice were arrested for stealing several items, totaling more than $400, from an Albertson's grocery store in Mountain View, California. The police report from the incident was attached to, and incorporated by reference into, the criminal complaint as the statement of probable cause. Espinoza-Cano pleaded guilty to grand theft, in violation of §§ 484-487(a) of the California Penal Code. At the taking of his plea, counsel stipulated that there was a factual basis for the plea as set forth in the police report. Espinoza-Cano was sentenced to twelve months imprisonment and, on February 6, 2003, was deported to Mexico. Following his deportation, Espinoza-Cano re-entered the United States and, again, was arrested for grand theft. Federal agents were notified of his unlawful presence and, on November 17, 2004, a grand jury indicted Espinoza-Cano on the charge that he was a previously deported alien found in the United States, in violation of 8 U.S.C. § 1326.

Espinoza-Cano filed a motion to dismiss the indictment. He argued that the indictment was fatally flawed under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and United States v. Tighe, 266 F.3d 1187 (9th Cir.2001), because his prior deportation had not been determined by a jury and because the indictment failed to allege a prior aggravated felony. Although Espinoza-Cano recognized that, under Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), the prior aggravated felony conviction did not constitute an essential element under § 1326, he raised the issue to preserve it for appellate review.

The district court denied the motion to dismiss the indictment and set a trial date. Shortly thereafter, counsel for Espinoza-Cano informed the government that Espinoza-Cano wished to enter a conditional guilty plea, pursuant to Rule 11(a)(2) of the Federal Rules of Criminal Procedure, in order to retain his right to appeal the district court's denial of his motion to dismiss the indictment. The government refused to consent to the conditional plea, asserting that it believed a conditional plea "was not appropriate in these circumstances." Presumably to achieve the same result as a conditional plea, Espinoza-Cano notified the government that he waived his right to a trial by jury and would stipulate to all facts necessary to establish his guilt at a bench trial. The district court, describing the bench trial as a "semi-modified Rule 11 colloquy" or "slow plea," found Espinoza-Cano guilty.

The Presentence Report ("PSR") recommended a thirty-seven-month custodial sentence. The calculation was predicated on a base offense level of eight (section 2L1.2(a)), with an upward adjustment of eight levels because Espinoza-Cano had been previously deported after a conviction for an aggravated felony (section 2L1.2(b)(1)(C)), and a downward adjustment of two levels for acceptance of responsibility (section 3E1.1), for a total offense level of fourteen. The PSR recommended that, in the absence of a motion from the government, and because Espinoza-Cano put the government to its burden of proof at a stipulated bench trial, Espinoza-Cano should not be awarded a third level reduction for acceptance of responsibility under subsection (b) of section 3E1.1. The PSR also calculated Espinoza-Cano's criminal history to be a category VI, which, when combined with a total offense level of fourteen, yielded a Guideline range of thirty-seven to forty-six months.

Espinoza-Cano objected to the recommended Guideline range in the PSR, arguing that he had not been convicted of an aggravated felony, and, therefore, should not have been given the eight point increase in his offense level. He also argued that he was entitled to an additional reduction in his offense level for acceptance of responsibility under section 3E1.1(b), notwithstanding the decision of the government not to file a motion. The district court overruled Espinoza-Cano's objections and sentenced him to thirty-seven months' imprisonment.

On appeal, Espinoza-Cano argues that (1) the government failed to plead and prove the existence of an aggravated felony; (2) judicially noticeable documents did not establish that his prior conviction was, in fact, an aggravated felony under the modified categorical approach of Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990); and (3) the district court erred in not reducing his offense level by an additional level for acceptance of responsibility based on his having timely notified authorities of his intent to plead guilty.

II. STANDARD OF REVIEW

Whether a prior conviction qualifies as an aggravated felony under the Guidelines is a question of law reviewed de novo. United States v. Hernandez-Valdovinos, 352 F.3d 1243, 1246 (9th Cir.2003). A district court's decision whether to reduce a defendant's sentence for acceptance of responsibility is reviewed for clear error. United States v. Cortes, 299 F.3d 1030, 1037 (9th Cir.2002). "[W]hether the district court misapprehended the law with respect to the acceptance of responsibility reduction" is reviewed de novo. Id. The district court's denial of a motion to dismiss an indictment for failure to plead an essential element of an offense is reviewed de novo. See United States v. Pernillo-Fuentes, 252 F.3d 1030, 1032 (9th Cir. 2001).

III. ANALYSIS

A. Pleading an Aggravated Felony in the Indictment

Espinoza-Cano argues that the fact of his prior conviction for an aggravated felony must have been pled in the indictment and proven to a jury beyond a reasonable doubt. This argument is foreclosed by Almendarez-Torres, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350, which remains binding precedent on this court. United States v. Weiland, 420 F.3d 1062, 1079, n. 16 (9th Cir.2005); United States v. Quintana-Quintana, 383 F.3d 1052, 1053 (9th Cir.2004); United States v. Pacheco-Zepeda, 234 F.3d 411, 412 (9th Cir.2000).

B. The Prior Felony Conviction

Pursuant to section 2L1.2(b)(1)(C) of the Guidelines, the offense level for a defendant convicted of a violation of 8 U.S.C. § 1326 is increased by eight levels if the defendant was deported after being convicted of an aggravated felony.³ The question is whether Espinoza-Cano's conviction for grand theft under § 487(a) of the California Penal Code qualifies as an aggravated felony under 8 U.S.C. § 1101(a)(43)(G), which classifies a theft offense for which the term of imprisonment is at least one year as an aggravated felony.

There exist two approaches to determine whether a prior conviction is an aggravated felony, the "categorical approach" and the "modified categorical approach," both of which were sanctioned in Taylor. Taylor, 495 U.S. at 602, 110 S.Ct. at 2160. An analysis of Espinoza-Cano's prior conviction leads us to conclude, and the parties agree, that it does not qualify as an aggravated felony under the categorical approach.

Under the categorical...