U.S. v. Ramirez

• Decision Date: 24 October 2003
• Docket Number: No. 02-50018.,02-50018.
• Citation: 347 F.3d 792
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Giovanni RAMIREZ, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

347 F.3d 792

UNITED STATES of America, Plaintiff-Appellant, v. Giovanni RAMIREZ, Defendant-Appellee.

No. 02-50018.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted February 3, 2003 — Pasadena, California.

Filed October 24, 2003.

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Judith A. Heinz, Assistant United States Attorney, Los Angeles, California, for the plaintiff-appellant.

C.R. McReynolds (argued), Charles T. Matthews, Pasadena, California, for defendant-appellee.

Appeal from the United States District Court for the Central District of California; William Matthew Byrne, Senior Judge, Presiding. D.C. No. CR-00-00522-WMB.

Before: Warren J. Ferguson, Cynthia Holcomb Hall, and Marsha S. Berzon, Circuit Judges.

Opinion by Judge FERGUSON; Partial Concurrence and Partial Dissent by Judge CYNTHIA HOLCOMB HALL.

OPINION

FERGUSON, Senior Circuit Judge.

This appeal presents the issue of whether a temporary detention ordered by the California Youth Authority Youth Offender Parole Board may be treated as either a prior sentence or a constructive parole revocation for the purpose of calculating criminal history points under the Sentencing Guidelines ("Guidelines"). Appellee Giovanni Ramirez pleaded guilty to a Class A felony with a statutory minimum sentence of 10 years. The District Court found that Ramirez's two prior temporary detentions, which were ordered by the Youth Offender Parole Board as a result of alleged parole violations, were neither prior sentences under U.S. SENTENCING GUIDELINES MANUAL § 4A1.1(c) (2002) [hereinafter U.S.S.G.], nor terms of imprisonment imposed as a result of a revocation of parole that could be aggregated with Ramirez's juvenile sentence under U.S.S.G. § 4A1.2(k) (2002). As a result, the District Court determined that Ramirez had no criminal history points and was eligible for a "safety-valve" departure from the mandatory minimum under U.S.S.G. § 5C1.2 (2002).

We have jurisdiction pursuant to 18 U.S.C. § 3742(b) (2002) and 28 U.S.C. § 1291 (2002). Because we conclude that the temporary detentions neither resulted from "adjudications of guilt" beyond a reasonable doubt nor constituted returns to the original term of imprisonment such that they could be treated as constructive revocations of parole, we affirm.

I. BACKGROUND

On December 19, 2000, Ramirez pleaded guilty to distribution of 62.5 grams of methamphetamine, a Class A felony carrying a statutory minimum sentence of 10 years. 21 U.S.C. § 841(b) (2002). Based on Ramirez's record with the California Youth Authority (CYA), discussed below, the Probation Department's Presentence Report (PSR) concluded that Ramirez had two criminal history points and was therefore ineligible for a safety-valve departure from the mandatory minimum.

A. Ramirez's History with CYA

On September 27, 1989, at the age of seventeen and over ten years before the instant offense, Ramirez was found guilty of rape and four other counts and placed in the custody of CYA. Ramirez served a little less than four years of his fourteen year sentence and was paroled from CYA on July 29, 1993, over five years prior to the commission of the instant offense.

On June 21, 1996, Ramirez was issued a citation for speeding. Three days after the citation, he tested positive for marijuana use. As a result of these two occurrences, his parole officer prepared a Corrective Action Plan (CAP)¹ which recommended that Ramirez receive 30 days of "temporary detention" at Los Angeles County Jail.² On July 24, Ramirez signed the CAP and checked a box indicating that he admitted to the speeding and marijuana allegations, waived all rights to a fact-finding hearing, and accepted the recommended CAP. On August 2, 1996, the Youth Offender Parole Board (YOPB) concurred with the CAP and ordered the temporary detention. The YOPB order did not indicate that there had been either a probable cause or a violation determination. Ramirez was detained from July 24 through August 19, 1996.

On November 18, 1996, Ramirez was arrested for possession of a concealed weapon. He was subsequently detained pending a determination of whether the arrest constituted a violation of his parole. On November 20, 1996, Ramirez waived his right to a probable cause hearing, and on November 27, 1996, YOPB issued an order making a probable cause finding as to the alleged violation. On January 8, 1997, Ramirez's parole officer issued a disposition report recommending that Ramirez be continued on parole and placed in a drug treatment program.

On April 11, 1997, the YOPB issued an order requiring that Ramirez continue to be detained pending a hearing on his alleged violation. The order stated that Ramirez "had several violations in 1996 and his commitment offense, recent parole performance, and this arrest necessitate a viol[ation]/ disposition hearing." On May 1, 1997, Ramirez signed a form acknowledging that he had received notice of his rights regarding the parole hearing and waiving his right to a fact-finding hearing, witnesses, or the assistance of an attorney. He admitted the weapons possession allegation as described in the probation disposition report.

On May 13, 1997, based on Ramirez's admission, the YOPB found that there had been a parole violation. However, instead of revoking his parole, the YOPB ordered Ramirez to spend two weeks in temporary detention. The order specifically noted under "Reasons" for its disposition that Ramirez would "be better served by parole supervision." Ramirez was released from temporary detention on May 27, 1997. It is undisputed by the parties that Ramirez's parole was never actually revoked under state law. On September 11, 1997, Ramirez was discharged from CYA parole.

B. Sentencing for the Instant Offense

The District Court conducted a total of eight sentencing hearings. In addition to their initial sentencing briefs, the parties submitted three sets of supplemental briefs, and the probation office submitted two addenda to the PSR. In addition, the District Court requested and heard testimony from both of Ramirez's CYA parole officers and from the YOPB member who had signed the two temporary detention orders.

On December 7, 2001, the District Court issued its sentencing decision.³ Specifically, the District Court found that (1) Ramirez's parole was not "revo[ked]" as that term is used in U.S.S.G. § 4A1.2(k); (2) Ramirez's temporary detentions were not the result of an "adjudication of guilt" and therefore could not be treated as prior sentences under U.S.S.G. § 4A1.2(d)(2)(B); and (3) in light of the above findings, Ramirez was eligible for a safety-valve departure under U.S.S.G. § 5C1.2. On January 2, 2002, the government filed its notice of appeal.

II. STANDARD OF REVIEW

A district court's interpretation of the Sentencing Guidelines is reviewed de novo. See United States v. Veerapol, 312 F.3d 1128, 1131 (9th Cir.2002). Factual findings underlying a district court's sentencing determination are reviewed for clear error. See id. at 1131-32. "The government bears the burden of proving the fact of a prior conviction." United States v. Sanders, 41 F.3d 480, 486 (9th Cir.1994). Whether "a prior adjudication falls within the scope of the Sentencing Guidelines" is a question of law that is reviewed de novo. Id. at 486; see also United States v. Latimer, 991 F.2d 1509, 1511 (9th Cir.1993).

III. DISCUSSION

The government contends that the District Court erred in finding that Ramirez was eligible for a safety-valve departure because Ramirez should have had at least two points added to his criminal history score as a result of his two YOPB imposed temporary detentions, either because the detentions are "prior sentences" under U.S.S.G. § 4A1.1 or because the detentions constituted constructive parole revocations that, under U.S.S.G. § 4A1.2(k), could be aggregated with Ramirez' juvenile sentence of imprisonment.⁴

A. Temporary Detention as a Prior Sentence under U.S.S.G. § 4A1.1(c)

Under U.S.S.G. § 4A1.1(c), a defendant receives one criminal history point for "each prior sentence[that is neither a prior sentence of imprisonment exceeding one year and one month] or [a prior sentence of imprisonment of at least sixty days], up to a total of 4 points." U.S.S.G. § 4A1.1(c). The definition of a "prior sentence" is "any sentence previously imposed upon an adjudication of guilt, whether by guilty plea, trial, or plea of nolo contendere, for conduct not part of the instant offense." § 4A1.2(a)(1).

The District Court determined, and Ramirez urges on appeal, that the proceedings underlying the temporary detentions were not "adjudications of guilt." "When interpreting the sentencing guidelines, we have carefully distinguished between confinement resulting from an adjudication of guilt and confinement for other reasons." United States v. Johnson, 205 F.3d 1197, 1200 (9th Cir.2000). "Absent proof that the [prior] court found [the defendant] guilty beyond a reasonable doubt, [an] adjudication may not be used to increase [the] criminal history score." Sanders, 41 F.3d at 486.

In the instant case, the government has failed to show that either of the detentions resulted from a finding of guilt beyond a reasonable doubt. The regulation authorizing the YOPB to order a temporary detention requires only a preponderance showing. CAL. CODE REGS. tit. 15 § 4985(c)(6).⁵ Because neither of the detentions were imposed as a result of, nor even required, a finding of guilt beyond a reasonable doubt, we agree with the District Court that neither can be viewed as "prior sentences" for the purpose of increasing Ramirez's criminal history score.

The government asserts that because Ramirez admitted to the allegations in both cases, there is no need to show that there was a finding of guilt. However, the Guidelines specifically require that an "adjudication of guilt" result from a "guilty plea, trial, or plea of nolo contendere." U.S.S.G. § 4A1.2(a). No mention is made...