U.S. v. Navidad-Marcos

• Decision Date: 05 May 2004
• Docket Number: No. 03-10234.,03-10234.
• Citation: 367 F.3d 903
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jose Luis NAVIDAD-MARCOS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

367 F.3d 903

UNITED STATES of America, Plaintiff-Appellee, v. Jose Luis NAVIDAD-MARCOS, Defendant-Appellant.

No. 03-10234.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 13, 2004.

Filed May 5, 2004.

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Michael Powell and Fredilyn Sison, Assistant Federal Public Defenders, Reno, NV, for the appellant.

Brian Sullivan and Ronald C. Rachow, Assistant United States Attorneys, Reno, NV, for the appellee.

Appeal from the United States District Court for the District of Nevada Howard D. McKibben, District Judge, Presiding. D.C. No. CR-01-00139-HDM/ VPC.

Before: WALLACE, KOZINSKI, and THOMAS, Circuit Judges.

THOMAS, Circuit Judge:

Jose Luis Navidad-Marcos appeals the district court's enhancement of his offense level by 16 levels pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(i) on account of his 1994 conviction in violation of California Health and Safety Code § 11379(a). We vacate the sentence and remand for resentencing.

I

Mexican citizen Navidad-Marcos was arrested by police officers in Reno, Nevada, for trafficking in controlled substances. He was subsequently convicted and sentenced to state prison. The United States Immigration and Naturalization Service ("INS") became aware of his presence while he was in state custody and interviewed him. Navidad-Marcos admitted to the INS that he had previously been deported and reentered the United States illegally. The INS confirmed this admission by investigation and fingerprint analysis.

Navidad-Marcos was indicted and charged with willfully being unlawfully in this country in violation of 8 U.S.C. § 1326(a) after being previously arrested and deported, removed, and/or excluded. He pleaded not guilty, but subsequently pleaded guilty to the one count indictment without a plea agreement.

A Presentence Investigation Report ("PSR") was prepared in anticipation of the sentencing hearing. The PSR calculated the base offense level at 8 pursuant to U.S.S.G. § 2L1.2(a), but provided for a 16-level enhancement according to § 2L1.2(b) for his previous deportation after conviction on a drug trafficking offense. This enhancement was based on Navidad-Marcos' prior California conviction and three-year sentence on August 2, 1994. The PSR also recommended a 3-level reduction for acceptance of responsibility. Applying a criminal history category of III to the total offense level of 21, the PSR recommended a guideline imprisonment range of 46-57 months.

At his initial sentencing hearing Navidad-Marcos objected to the 16-level aggravated felony enhancement and requested a continuance to brief the issue. After the parties fully briefed the matter, sentencing was completed. In his objection, Navidad-Marcos contended that the 1994 Kern County, California, conviction was "overbroad" under the categorical approach set out in Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). Specifically, Navidad-Marcos explained that his 1994 conviction under California Health and Safety Code § 11379(a) could have been for conduct that would not qualify as a "drug trafficking" aggravated felony justifying the 16-level enhancement. Thus, he concluded that only a 4-level enhancement should be applied for a felony conviction pursuant to U.S.S.G. § 2L1.2(b)(1)(D), which would render a 10-16 month guideline range.

Holding California Health and Safety Code § 11379(a) to be overbroad, the district court sought other judicially recognizable information to determine the offense to which Navidad-Marcos had pleaded guilty. The government and probation office indicated that the only California state court documents available were the 1994 California Presentence Report, Information, Abstract of Judgment, and a copy of the case investigative report. Although originally charged with three counts, Navidad-Marcos ultimately pleaded to a single count. In alleging the criminal violation to which Navidad-Marcos pleaded guilty, the state charging document contained the generic statutory language of § 11379(a), stating in relevant part:

Count: 001, On or about October 8, 1994, Jose Luis Navidad, Jesus Alverto Dinas-Torres, and Victor Manuel Ojeda Mora, did willfully and unlawfully transport, import into the state of California, sell, furnish, administer, or give away, or offer to transport, import into the state of California, sell, furnish, administer, or give away, or attempt to import into the state of California or transport a controlled substance, to wit: methamphetamine, in violation of Health and Safety Code Section 11379(a), a felony.

The government also included a California "Abstract of Judgment — Prison Commitment" form from the Kern County Superior Court which indicates Navidad-Marcos was sentenced to three years for violating § 11379(a). The abstract also states that "defendant was convicted of the commission" of a felony in violation of Count I, § 11379(a). The abstract then identifies the "crime" as "Transport/sell cont. sub."

Analyzing these facts under the first "categorical" part of the Taylor analytical model, the district court concluded that § 11379(a) was insufficient to qualify as a predicate offense enabling the 16-level enhancement in § 2L1.2(b)(1)(A). Specifically, the court concluded that the statute "punishes a full range of conduct encompassed by the statute, which might not constitute an aggravated felony." Thus, the court analyzed the judicially noticeable documents under the Taylor modified categorical approach. In doing so, it expressly eschewed any reliance on the state presentence report and instead focused on the state Information and abstract of judgment. Noting the language in the Information was generic, the court explained that if the judgment merely convicted Navidad-Marcos of "Count I," the offense would not qualify as a predicate offense enabling the 16 level enhancement.

However, the district court distinguished Navidad-Marcos' case from those where the judgment simply mirrors the charging document because the judgment described the crime as "Transport/sell cont. sub." Thus, the court determined that the controlled substance was the methamphetamine charged in the Information and a "certified exemplified copy" of the abstract of judgment convicted Navidad-Marcos of "the transportation, sale of a controlled substance." The court concluded, based on the judgment abstract alone, that the conviction qualified for the enhancement under the Sentencing Guidelines. As a result, the court denied Navidad-Marcos' objection and applied the 16-level enhancement. The court adopted the PSR's other findings, setting the Guideline range at 46-57 months and sentencing Navidad-Marcos to a term of 46 months and 3 years supervised release to run consecutive to the Nevada sentence, which had already been served. Navidad-Marcos timely appealed the sentence. We review de novo a district court's decision that a prior conviction is a qualifying offense for a sentencing enhancement pursuant to U.S.S.G. § 2L1.2. United States v. Hernandez-Valdovinos, 352 F.3d 1243, 1246 (9th Cir.2003).

II

The district court properly concluded that the conviction did not facially qualify for the enhancement under Taylor's categorical analysis. U.S.S.G. § 2L1.2 provides a base offense level of 8 for a defendant who unlawfully enters or remains in the United States. Section 2L1.2(b)(1)(A)(i) provides a 16-level enhancement if the defendant was previously deported after a "drug trafficking offense for which the sentence imposed exceeded 13 months." A drug trafficking offense pursuant to this section means:

an offense under federal, state, or local law that prohibits the manufacture, import, export, distribution, or dispensing of a controlled substance (or a counterfeit substance) or the possession of a controlled substance (or a counterfeit substance) with intent to manufacture, import, export, distribute, or dispense.

U.S.S.G. § 2L1.2 Application Note 1(B)(iv). To determine whether a prior conviction qualifies as a predicate offense for the 16-level enhancement under § 2L1.2(b)(1)(A)(i), federal courts apply the familiar categorical approach established by the Supreme Court in Taylor. See Hernandez-Valdovinos, 352 F.3d at 1246; United States v. Pimentel-Flores, 339 F.3d 959, 967-68 (9th Cir.2003) (holding the categorical approach applies to § 2L1.2 after the 2001 amendments).

Pursuant to Taylor's analytical model, courts cannot examine the underlying facts of the prior offense, but "`look only to the fact of conviction and the statutory definition of the prior offense.'" United States v. Corona-Sanchez, 291 F.3d 1201, 1203 (9th Cir.2002) (en banc) (quoting Taylor, 495 U.S. at 602, 110 S.Ct. 2143). Thus, under the "categorical approach" the court must first look to the statute of conviction to determine if the offense would qualify as a "drug trafficking" offense for § 2L1.2 purposes.

Here, the district court correctly concluded that Navidad-Marcos' 1994 conviction under California Health & Safety Code § 11379(a) does not qualify for the 16-level enhancement under Taylor's categorical statutory approach. The government does not dispute this. As the government necessarily acknowledges, § 11379(a) criminalizes a variety of conduct, some of which would not constitute an aggravated felony under the definitions provided by the Sentencing Guidelines. Indeed, § 11379(a) is violated by "every person who transports, imports into this state, sells, furnishes, administers, or gives away, or offers to transport, import into this state, sell, furnish, administer, or give away, or attempts to import into this state or transport any controlled substance...." Clearly this language includes more than the "manufacture, import, export, distribution or dispensing of a controlled substance," or possession with intent to do the same, as required by a "drug trafficking" offense under § 2L1.2(b)(1)(A).

Furthermore, this conclusion is compelled by United States v....