U.S. v. Guerrero-Velasquez, 05-30066.

• Decision Date: 19 January 2006
• Docket Number: No. 05-30066.,05-30066.
• Citation: 434 F.3d 1193
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Adolfo GUERRERO-VELASQUEZ, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

434 F.3d 1193

UNITED STATES of America, Plaintiff-Appellant, v. Adolfo GUERRERO-VELASQUEZ, Defendant-Appellee.

No. 05-30066.

United States Court of Appeals, Ninth Circuit.

Submitted November 18, 2005.^*

Filed January 19, 2006.

As Amended February 7, 2006.

K. Jill Bolton and James A. McDevitt, United States Attorney's Office, Yakima, WA, for the plaintiff-appellant.

Alex B. Hernandez, III, Federal Defenders of Eastern Washington and Idaho, Yakima, WA, for the defendant-appellee.

Appeal from the United States District Court for the Eastern District of Washington; Wm. Fremming Nielsen, Senior Judge, Presiding. D.C. No. CR-04-02115-WFN.

Before: HANSEN,^** W. FLETCHER, and BYBEE, Circuit Judges.

BYBEE, Circuit Judge:

There are two questions before us on this appeal. First, is a guilty plea an admission of the facts charged in the indictment? Second, is an Alford plea, in which the defendant enters a guilty plea while maintaining his innocence, nevertheless a guilty plea under Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990)? The first of these questions is well established in our decisions; the second is not. We answer both in the affirmative, vacate the defendant's sentence, and remand to the district court for resentencing.

I. BACKGROUND

Guerrero-Velasquez was charged with being an alien in the United States after deportation in violation of 8 U.S.C. § 1326. He pled guilty on September 28, 2004. The United States Probation office submitted a presentence investigation report, and the government objected to the report's treatment of Guerrero-Velasquez's previous conviction for second-degree burglary in Washington. Specifically, the government argued that under § 2L1.2(b)(1)(A)(ii) of the United States Sentencing Guidelines, the report should have imposed "a 16-level specific offense characteristic enhancement for the Defendant's prior crime of violence conviction."

Applying Taylor, the district court found that second-degree burglary was not categorically a crime of violence under Washington state law. The court then applied Taylor's modified categorical approach; after conducting a limited factual inquiry into Guerrero-Velasquez's criminal history, the court found that the government had not submitted any evidence from which the court could conclude that he had been convicted of a crime of violence. It therefore rejected the government's position and sentenced him without imposing the enhancement. The government now appeals.

II. ANALYSIS

Section 2L1.2(b)(1)(A)(ii) of the United States Sentencing Guidelines provides that an alien who has illegally reentered the United States should receive a sixteen-level sentencing enhancement if he has a prior conviction for "a crime of violence." See U.S.S.G. § 2L1.2(b)(1)(A)(ii) (2003).¹ The commentary accompanying the sentencing guidelines defines a crime of violence to include the "burglary of a dwelling." See U.S.S.G. § 2L1.2 cmt. n. 1(B)(iii) (2003). The question before this Court is whether Guerrero-Velasquez's conviction for second degree burglary constitutes a conviction for burglary of a dwelling.

To answer this question, we must define "burglary of a dwelling" under the sentencing guidelines. Under Taylor, "a state conviction meets the generic definition of burglary if the burglary statute `contains at least the following elements: an unlawful or unprivileged entry into, or remaining in, a building or other structure, with intent to commit a crime.'" United States v. Rodriguez-Rodriguez, 393 F.3d 849, 857(9th Cir.2005) (emphasis omitted) (quoting Taylor, 495 U.S. at 598, 110 S.Ct. 2143). "The definition of `burglary of a dwelling' is the same as the `Taylor definition of burglary, with the narrowing qualification that the burglary occur in a dwelling.'" Id. (quoting United States v. Wenner, 351 F.3d 969, 973 (9th Cir.2003)).

Under Taylor, we apply a "categorical approach" to determine whether a conviction constitutes a crime of violence.² 495 U.S. at 600, 110 S.Ct. 2143. Under this approach, we look to the statutory definition of the crime for which a defendant was convicted instead of examining the particular facts underlying the conviction. Id. However, if the defendant's conviction does not meet the statutory definition for burglary under the categorical approach, a court may conduct a limited factual inquiry into the records of the defendant's prior conviction:

[T]he sentencing court [may] go beyond the mere fact of conviction in a narrow range of cases where a jury was actually required to find all the elements of generic burglary. For example, in a State whose burglary statutes include entry of an automobile as well as a building, if the indictment or information and jury instructions show that the defendant was charged only with a burglary of a building, and that the jury necessarily had to find an entry of a building to convict, then the Government should be allowed to use the conviction for enhancement.

Id. at 602, 110 S.Ct. 2143. Thus, "courts may examine the record for documentation or judicially noticeable facts that clearly establish that the conviction is a predicate conviction for enhancement purposes." United States v. Corona-Sanchez, 291 F.3d 1201, 1211 (9th Cir.2002) (en banc) (internal quotations omitted), superseded by statute, U.S.S.G. § 2L1.2 cmt. n. 5 (2002). This limited inquiry has been dubbed the "modified categorical approach." Id. (quoting Ye v. INS, 214 F.3d 1128, 1133 (9th Cir.2000)).

In United States v. Wenner, 351 F.3d 969 (9th Cir.2003), this Court applied Taylor and held that second-degree burglary was not a categorical crime of violence under Washington state law.³ Below, the district court correctly followed this precedent, and the parties do not dispute this issue on appeal.

Following its determination that Guerrero-Velasquez had not committed a categorical crime of violence, the district court proceeded to apply Taylor's modified categorical approach. However, the district court erroneously restricted its factual inquiry to the criminal information and the police reports submitted by the government. The court cited Wenner for the proposition that it could not rely on the information alone to conclude that Guerrero-Velasquez had been convicted of a crime of violence, and it relied on Corona-Sanchez to conclude that the police reports were also insufficient. See Wenner, 351 F.3d at 974("It is well-established that we may not rely on an information alone to determine the elements of conviction."); Corona-Sanchez, 291 F.3d at 1212 ("[A] pre-sentence report reciting the facts of the crime is insufficient evidence to establish that the defendant pled guilty to the elements of the generic definition of a crime when the statute of conviction is broader than the generic definition."); see also id. at 1211 ("Charging papers alone are never sufficient.").

The district court failed to consider Guerrero-Velasquez's signed plea agreement,⁴ in which he pled guilty to second-degree burglary.⁵ "By pleading guilty, [a defendant] admit[s] the factual allegations in the indictment." Rodriguez-Rodriguez, 393 F.3d at 857. The charging information stated that, "with intent to commit a crime against a person or property therein," Guerrero-Velasquez "enter[ed] or remain[ed] unlawfully in a building located at 1405 Landon Avenue, Yakima, Washington, the residence of Rena Ramirez." (emphasis added).⁶ By pleading guilty, Guerrero-Velasquez admitted all of the facts charged in the information; therefore, the court may properly take judicial notice that he was convicted of burglarizing a dwelling. See, e.g., Taylor, 495 U.S. at 602, 110 S.Ct. 2143; United States v. Hernandez-Hernandez, 431 F.3d 1212 (9th Cir.2005) (relying on stipulations that were the factual basis for a guilty plea to determine that defendant's prior conviction was for a crime of violence); Rodriguez-Rodriguez, 393 F.3d at 857-58 (holding that because defendant's conviction contained the element of "burglary of a dwelling" which was not a required element of the state crime for which he was convicted, it was a crime of violence under the sentencing guidelines); Corona-Sanchez, 291 F.3d at 1211 ("[I]f a defendant enters a guilty plea, . . . court[s] may consider the charging documents . . . to determine whether [he has] pled guilty to the elements of the generic crime."); U.S. v. Sweeten, 933 F.2d 765, 769-70 (9th Cir.1991) (finding error when the district court applied Taylor's modified categorical approach without considering the defendant's indictment and guilty plea). Compare Wenner, 351 F.3d at 974 ("The government does not point to a signed plea agreement . . . demonstrat[ing] that Wenner was convicted as charged . . . .") with Corona-Sanchez, 291 F.3d at 1211 ("[C]harging papers may be considered in combination with a signed plea agreement.").

The defense attempts to distinguish these cases by arguing that Guerrero-Velasquez entered an Alford plea for the burglary in question — that is to say he pled guilty to receive a lower sentence while maintaining his innocence. See North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). This contention is without merit. Whether or not a defendant maintains his innocence, the legal implications of a guilty plea are the same in the context of the modified categorical approach under Taylor. The question under the sentencing guidelines is whether a defendant has "a conviction for a . . . crime of violence," not whether the defendant has admitted to being guilty of such a crime. See U.S.S.G. § 2L1.2(b)(1)(A) (2003) (emphasis added).

We note that our approach is in accord with that of the Second Circuit, the only other federal court of appeals to have issued a published opinion addressing a similar question. In Abimbola v. Ashcroft, 378 F.3d 173 (2d Cir.2004), that court concluded that an Alford plea was a conviction for purposes of the Immigration and Naturalization Act. In doing...