U.S. v. Moreno-Hernandez
| Decision Date | 17 August 2005 |
| Docket Number | No. 03-30387.,03-30387. |
| Citation | 419 F.3d 906 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Isidro MORENO-HERNANDEZ, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Robert M. Stone, Medford, OR, for the defendant-appellant.
Karin J. Immergut, United States Attorney, District of Oregon, and Robert G. Thomson (argued), Assistant United States Attorney, Medford, OR, for the plaintiff-appellee.
Appeal from the United States District Court for the District of Oregon; Ann L. Aiken, District Judge, Presiding. D.C. No. CR-03-30012-AA.
Before WALLACE, GOULD, and BERZON, Circuit Judges.
The mandate issued on July 13, 2005 is recalled for the purpose of amending the opinion as follows:
The amended opinion filed July 5, 2005, slip op. 7773, appearing at 2005 WL 1560269 (9th Cir. July 5, 2005), is amended as follows:
1) Slip op. at 7793 (2005 WL 1560269, at *9): The first sentence of the third full paragraph, beginning "We conclude that a limited remand is proper in all pending direct criminal appeals involving unpreserved Booker error," is deleted. In its place, the following sentence is inserted: "We conclude that defendants are entitled to limited remands in all pending direct criminal appeals involving unpreserved Booker error, whether constitutional or nonconstitutional."
2) Slip op. at 7794 (2005 WL 1560269, at *9): A footnote is inserted at the end of the last sentence of the opinion, which begins "We will therefore remand." The text of footnote is as follows:
It is clear that the district court, under Ameline, will have to at least consider the available sentence under the now-discretionary federal Guidelines in determining whether it would have imposed a different sentence had it known the Guidelines were advisory.
That is why we resolve the question that was fully briefed and argued in this court concerning the applicability of the enhancement. By doing so, we assure that the district court will begin in this regard with the proper interpretation of the Guidelines in determining whether it would have imposed a different sentence. Cf. United States v. Baclaan, 948 F.2d 628, 630-31 (9th Cir.1991) (per curiam) ().
No further petitions for rehearing or petitions for rehearing en banc shall be entertained. The mandate shall reissue forth-with.
OPINIONOnce more, we are asked to determine whether a federal defendant's previous state-law conviction is for a "felony that is . . . a crime of violence" under section 2L1.2(b)(1)(A)(ii) of the U.S. Sentencing Guidelines ("Guidelines"). See, e.g., United States v. Lopez-Patino, 391 F.3d 1034, 1036-38 (9th Cir.2004) (per curiam); United States v. Contreras-Salas, 387 F.3d 1095, 1097 (9th Cir.2004); United States v. Hernandez-Hernandez, 387 F.3d 799, 804-06 (9th Cir.2004); United States v. Grajeda-Ramirez, 348 F.3d 1123, 1124-25 (9th Cir.2003), cert. denied, ___ U.S. ___, 125 S.Ct. 863, 160 L.Ed.2d 781 (2005).
Under Oregon law, assault in the fourth degree ("Assault IV"), normally a "Class A misdemeanor" punishable by no more than one year in prison, is a "Class C felony" punishable by up to five years in prison when committed, inter alia, in the presence of the victim's minor child. See OR. REV. STAT. § 163.160(3)(c).1 At issue in this appeal is whether the presence of the victim's minor child should be considered in ascertaining whether the Oregon statute defines a "felony" for purposes of the Guidelines.
Sentencing factors based on some aspect of the defendant's legal history, such as recidivist sentencing enhancements, are not considered in determining whether a state-law offense is a felony. See, e.g., United States v. Pimentel-Flores, 339 F.3d 959, 967-69 (9th Cir.2003); United States v. Corona-Sanchez, 291 F.3d 1201, 1208-11 (9th Cir.2002) (en banc). Today, however, we decline to extend these precedents to cases such as this one, where the sentencing factor is based on circumstances of the crime itself. Substantive offense-based enhancements are inseparable from the underlying offense and must be considered in determining the maximum available sentence.
We therefore agree with the district court that Defendant-Appellant Isidro Moreno-Hernandez's underlying Oregon conviction was, as far as this consideration goes, for a "felony." As Moreno-Hernandez challenges the applicability of a federal sentencing enhancement, however, we grant a limited remand pursuant to United States v. Ameline, 409 F.3d 1073 (9th Cir.2005) (en banc).
This appeal comes to us from Moreno-Hernandez's third conviction for illegally reentering the United States after removal. See 8 U.S.C. § 1326. All three federal convictions occurred subsequent to a 1999 Oregon state conviction for assault in the fourth degree, for "unlawfully and intentionally caus[ing] physical injury" to Yolanda Robinson in the presence of her minor child, Deanndra Wright. For that offense, Moreno-Hernandez was sentenced to sixty days in jail and three years on probation.
After pleading guilty to this most recent § 1326 charge, Moreno-Hernandez was sentenced to a term of seventy-seven months. Under the then-recently amended Guidelines,2 the district court enhanced Moreno-Hernandez's sentence by sixteen levels, because he was deported, or unlawfully remained in the United States, after a conviction for a "felony that is . . . a crime of violence." U.S.S.G. § 2L1.2(b)(1)(A)(ii) (2003).3 From this sentence Moreno-Hernandez timely appeals.
The crux of Moreno-Hernandez's argument is that we should not consider the factor that made his offense punishable by as much as a five-year sentence — the presence of the victim's minor child — in ascertaining whether his underlying Oregon conviction was for a "felony."4
Federal law and the Guidelines both define a felony as "any federal, state, or local offense punishable by imprisonment for a term exceeding one year." U.S.S.G. § 2L1.2, cmt. n. 2; see also 18 U.S.C. § 3559(a). This bright-line distinction between felonies and misdemeanors, which dates back, at least in some form, to 1865, see United States v. Graham, 169 F.3d 787, 792 (3d Cir.1999), has been repeatedly embraced as the law of our circuit, see, e.g., United States v. Robles-Rodriguez, 281 F.3d 900, 904, 906 (9th Cir.2002); United States v. Olvera-Cervantes, 960 F.2d 101, 103-04 (9th Cir.1992); United States v. Houston, 547 F.2d 104, 106 (9th Cir.1976).
Assault IV without the presence of the victim's minor child carries a maximum sentence of one year in prison. See OR. REV. STAT. § 161.615. Because of the presence of the victim's minor child during the assault, Moreno-Hernandez's offense carried a maximum sentence of five years. See id. §§ 161.605; 163.160(3)(c). Moreno-Hernandez's underlying conviction is therefore a "felony" only if the minor child enhancement is pertinent in determining whether his conviction was for a "felony." The question before us is whether it should be so considered.
In Corona-Sanchez, we considered whether the California state-law crime of petty theft committed by a previous offender was an aggravated felony under the Guidelines. The answer to that question turned on whether the crime was a "theft offense" punishable by a sentence of one year or more in prison. 291 F.3d at 1203-11. Under the California law at issue in Corona-Sanchez, the fact that the defendant was a repeat offender rendered him subject to a sentence — two years — that would have made his crime an aggravated felony, even though the underlying offense, petty theft, carried only a six-month statutory maximum.
Corona-Sanchez applied the categorical approach outlined in Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), in combination with the distinction between substantive offenses and recidivist sentencing enhancements highlighted in Almendarez-Torres v. United States, 523 U.S. 224, 239-47, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). Applying these concepts to the question whether Corona-Sanchez's crime constituted an "aggravated felony," we concluded that, in assessing whether a crime is a "theft offense" punishable by one year or more in prison, the substantive offense is to be considered independently of any recidivist sentencing enhancement. Based on that analysis, Corona-Sanchez concluded that the crime of petty theft is not a "theft offense," and therefore is not an aggravated felony for purposes of the Guidelines, even though the maximum sentence to which Corona-Sanchez was subject was more than one year. 291 F.3d at 1210-11.
Corona-Sanchez explained the cleaving of the recidivist enhancement from the underlying offense largely on the basis that the enhancement was measured by recidivism. Following the Supreme Court's reiteration in Apprendi v. New Jersey that "recidivism does not relate to the commission of the offense," 530 U.S. 466, 496, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) (citation and internal quotation marks omitted), the en banc court regarded petty theft as a single, substantive offense, as to which various sentencing alternatives were available depending on the defendant's past criminal history. See, e.g., Corona-Sanchez, 291 F.3d at 1209 (). Importantly, under this approach, nothing substantive about the offense determined whether the petty theft was or was not an aggravated felony. The court rejected only the argument that a characteristic of the offender's prior history could be the reason a state crime becomes, for federal purposes, an "aggravated felony."
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