U.S. v. Sandoval-Venegas

• Citation: 292 F.3d 1101
• Decision Date: 14 June 2002
• Docket Number: No. 01-50226.,01-50226.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Heriberto SANDOVAL-VENEGAS, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

292 F.3d 1101

UNITED STATES of America, Plaintiff-Appellee, v. Heriberto SANDOVAL-VENEGAS, Defendant-Appellant.

No. 01-50226.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted January 15, 2002.

Filed June 14, 2002.

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Steven Hubachek (argued), and Gary P. Burcham, San Diego, CA, for the defendant-appellant.

Patrick K. O'Toole, United States Attorney, Shane P. Harrigan, Assistant United States Attorney, United States Attorney's Office, San Diego, CA, for the plaintiff-appellee.

Appeal from the United States District Court for the Southern District of California; Judith N. Keep, District Judge, Presiding. D.C. No. CR-00-03383-JNK.

Before: SCHROEDER, Chief Judge, CUDAHY,^* and McKEOWN, Circuit Judges.

McKEOWN, Circuit Judge.

This appeal stems from Heriberto Sandoval-Venegas' conviction for bank robbery and the district court's imposition of an enhanced sentence based on two prior convictions. Pursuant to a conditional guilty plea, Sandoval challenges the district court's finding that there was probable cause for his arrest and its determination that he was a career offender under United States Sentencing Guidelines Manual ("Guidelines") §§ 4B1.1 & 4B1.2. We affirm the district court's probable cause ruling. We likewise affirm the district court's determination that California Health & Safety Code § 11359, which prohibits the possession of marijuana for sale, is a qualifying statute for purposes of the Guidelines career offender enhancement. Nevertheless, because certain documentation standards must be met as a predicate to enhancement, as we recently clarified in United States v. Matthews, 278 F.3d 880 (9th Cir.) (en banc) (as amended), cert. denied, ___ U.S. ___, 122 S.Ct. 2345, 153 L.Ed.2d 173 (2002), and United States v. Corona-Sanchez, 291 F.3d 1201 (9th Cir. 2002) (en banc), we reverse the career offender determination as to Sandoval's burglary conviction and remand for resentencing.

I. PROBABLE CAUSE

Sandoval appeals the district court's probable cause determination with respect to his warrantless arrest, arguing that subsequent identifications and incriminating statements must be suppressed because the arrest was tainted. Sandoval's challenge rests primarily on the nuances of what is known as the "collective knowledge" doctrine. United States v. Butler, 74 F.3d 916, 920 (9th Cir.1996) (citation omitted) (holding that probable cause "can also be demonstrated through the collective knowledge of police officers involved in the investigation"). We review the probable cause determination de novo, with underlying factual findings reviewed for clear error. Id.

A brief factual review reveals that Sandoval's arrest was the culmination of the efforts of two detectives who were working together, in close communication and consultation, and who were both present at the arrest. Sandoval robbed a Bank of America branch in San Diego, California, by presenting a demand note. The teller provided him with approximately $625, including bills with pre-recorded serial numbers, and a bundle of bills with a tracking device, known as a "Pro-Net tag," embedded in it, that is automatically activated when it reaches a certain distance from the bank. This device transmits a unique electronic signal on a specified frequency.

Two detectives were key players in Sandoval's eventual apprehension. The first, Detective Griffin, arrived at the bank and broadcast a description of the robber. The second officer, Detective Hershman, who responded a few minutes later, picked up a patrol car with a Pro Net unit capable of receiving the tracking signal and joined the grid search. After following a strong electronic signal, Hershman spotted Sandoval and observed that he matched the general description of the robber. After watching Sandoval in his rear view mirror, Hershman reversed his direction and drove toward him. Sandoval then fled across a church parking lot; the detective pursued him on foot but failed to apprehend him. During the chase, Hershman radioed a description of Sandoval. As he returned to his car, Hershman heard on his radio that officers had detained an Hispanic teenager near the church, so he returned to the church but advised the other officers that the teenager was not the suspect he had been chasing.

Meanwhile, Detective Griffin, who had initially responded to the bank alert and was now also in a Pro Net unit, radioed that he had located a strong tracking signal near the church. He parked at a strip mall to evaluate the signal and saw a man come out of a liquor store. Recognizing the man as matching the radio description of the robber, and believing that the signal may have been located, Detective Griffin radioed a description of Sandoval and his travel direction to other units and advised them to "keep an eye on him" as Sandoval walked towards the Travel Time Motel. Hershman heard this broadcast and realized that the individual matched the description of the suspect that he had chased on foot. As Hershman headed toward the motel, he heard on his radio that other units had a suspect in custody. Upon seeing the suspect, however, Hershman told the officers, "That's not him."

Detectives Hershman and Griffin converged on the motel and, talking through their car windows, communicated that their signals were pointing toward the motel. The two detectives entered the building and the manager told them that "a Mexican man" had just checked in. They checked the public areas of the motel, and were then informed over the police radio that the signal was lost, which, based on Hershman's training, led him to conclude that the signal had been either detected and destroyed or the tracking device's battery had died. Then, as Detectives Hershman and Griffin discussed options with several other officers in a first floor hallway, Sandoval emerged from Room 104, directly into the group. Both detectives recognized him as the suspect they had previously identified in the church parking lot and outside the liquor store, respectively. Detective Griffin grabbed Sandoval and the other officers handcuffed him.

This case presents a classic application of the principle that "[c]ourts look to the totality of the circumstances known to the officers in determining whether there is probable cause for an arrest." Butler, 74 F.3d at 920 (internal quotation marks omitted). More to the point, we recently reaffirmed that probable cause may be based on the collective knowledge of officers at the scene of an arrest. Dubner v. City and County of San Francisco, 266 F.3d 959, 966 (9th Cir.2001).

Unlike Dubner, which we called an "unusual case" because we could not "determine what the arresting officers knew at the time," in this case, it is easy to sort out the officers' knowledge. The two detectives had the benefit of mutual radio descriptions of the suspect and, upon converging at the motel, not only traded descriptions, but confirmed that their tracking devices pointed to the motel. Finally, at the scene of the arrest, both detectives recognized Sandoval as the individual who had been indicated by the tracking device. Notably, Hershman had previously eliminated two other suspects who did not match his previous profile. The district court found that this information was reliable, at least in the case of Detective Hershman, who had extensive experience with the Pro-Net device. The court was privy to extensive testimony about the electronic system, how it operated, its track record, and the detectives' experience with it. The reliability finding easily survives a clear error analysis. See United States v. Levine, 80 F.3d 129, 132-33 (5th Cir.1996) (upholding determination that probable cause existed based on electronic tracking device and general description).

The detectives were in continuous collective contact and their pooled knowledge was a nice piece of detective work that resulted in Sandoval's apprehension. Sandoval's notion that Griffin should somehow be viewed as an island, or act as if he were operating solo, cannot be squared with the facts. Whether Detective Griffin alone would have had probable cause is immaterial because, as the district judge explained "Hershman's right there and he could have said `That's not the guy'" — as he had, in fact, done twice. Hershman had sufficient knowledge to constitute probable cause; Detective Griffin, standing at his elbow and cooperating in the pursuit, was entitled to use it to arrest Sandoval.¹

II. CAREER OFFENDER ENHANCEMENT

We next consider whether, based on his prior convictions, Sandoval qualifies as a career offender under U.S. Sentencing Guidelines §§ 4B1.1 and 4B1.2. Under the relevant portion of § 4B1.1: "A defendant is a career offender if ... the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense." Our approach to determining whether the defendant's prior convictions qualify derives from Taylor v. United States, 495 U.S. 575, 588-89, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), which examined an analogous inquiry in the context of the Armed Career Criminal Act, 18 U.S.C. § 924(e). United States v. Casarez-Bravo, 181 F.3d 1074, 1077 n. 1 (9th Cir.1999). We have applied a similar framework in the context of the Guidelines. United States v. Martinez, 232 F.3d 728 (9th Cir.2000).

For any given prior conviction, we engage in a two-step process to determine whether enhancement is justified. In what has been termed the "categorical approach," we first "generally look to the statutory definition of the crime, rather than to the defendant's specific conduct." Casarez-Bravo, 181 F.3d at 1077 n. 1. If the statute fails to qualify, we move to the second step in which we may also "examine documentation or judicially noticeable facts that clearly establish that the conviction is a predicate conviction for enhancement purposes." 181 F.3d at 1077 (internal citation and quotation marks omitted). A...