U.S. v. Shumate

• Citation: 329 F.3d 1026
• Decision Date: 20 May 2003
• Docket Number: No. 01-50610.,01-50610.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Bryan Lynn SHUMATE, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

329 F.3d 1026

UNITED STATES of America, Plaintiff-Appellee, v. Bryan Lynn SHUMATE, Defendant-Appellant.

No. 01-50610.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 8, 2003.

Filed May 20, 2003.

Siri Shetty, Federal Defenders of San Diego, Inc., San Diego, CA, for the defendant-appellant.

Patrick K. O'Toole, United States Attorney (when brief was filed), Carol C. Lam, United States Attorney (when opinion was filed), Mi Yung Claire Park, Assistant U.S. Attorney (on the brief), Pennie M. Carlos, Assistant U.S. Attorney (at oral argument), 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; Robert E. Jones, District Judge, Presiding. D.C. No. CR-01-01954-REJ.

Before: BEEZER, FERNANDEZ, and PAEZ, Circuit Judges.

Opinion by Judge FERNANDEZ; Concurring opinion by Judge PAEZ.

OPINION

FERNANDEZ, Circuit Judge:

Bryan Lynn Shumate was convicted by guilty plea and sentenced for importation of marijuana. See 21 U.S.C. §§ 952, 960. The district court used an Oregon drug conviction in deciding that he was a career offender. See USSG § 4B1.1.¹ Shumate claims that from a categorical perspective, the conviction was not a qualifying one. We disagree and affirm.

BACKGROUND

In March 2001, Shumate was arrested at the San Ysidro Port of Entry when custom inspectors found 34 packages of marijuana concealed in various places in an automobile that he was driving. He was the sole occupant of the automobile. He ultimately pled guilty to knowing and intentional importation of marijuana from Mexico into the United States. See 21 U.S.C. §§ 952, 960.

At sentencing, the district court determined that Shumate was a career offender within the meaning of USSG § 4B1.1, which provides, in pertinent part:

A defendant is a career offender if (1) the defendant was at least eighteen years old at the time the defendant committed the instant offense of conviction, (2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense, and (3) the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense.

The result was that Shumate's total offense level became 14 and his criminal history level became VI, which placed him in a guideline range of 37-46 months.² The district court sentenced him to imprisonment for 37 months.

The district court found him to be a career offender because of two prior drug convictions. One of them was a conviction in Oregon for delivery of marijuana for consideration. See Or.Rev.Stat. § 475.992. That section reads, in pertinent part: "[I]t is unlawful for any person to manufacture or deliver a controlled substance.... Any person who delivers marijuana for consideration is guilty of a Class B felony." Id. §§ 475.992(1), (2)(a). Delivery is defined as "the actual, constructive or attempted transfer ... from one person to another of a controlled substance." Id. § 475.005(8). That, says Shumate, does not meet the definition of a controlled substance offense within the meaning of § 4B1.1 of the Guidelines. Thus, this appeal.

JURISDICTION AND STANDARD OF REVIEW

The district court had jurisdiction pursuant to 18 U.S.C. § 3231. We have jurisdiction pursuant to 28 U.S.C. § 1291.

We review the district court's interpretation of the Sentencing Guidelines and its determination that Shumate is a career offender de novo. United States v. Riley, 183 F.3d 1155, 1157 (9th Cir.1999).

DISCUSSION

The only substantial and dispositive question before us is whether Shumate's Oregon offense was a predicate offense for career offender purposes.³ There can be no doubt that Shumate's current offense is a felonious controlled substance offense, but it is pellucid that in order to obtain application of the career offender enhancement the government must additionally prove that he was over 18 years of age when he committed the offense at hand and that the Oregon predicate offense was a felonious controlled substance offense within the meaning of the Guidelines. USSG § 4B1.1. There is no dispute that he was over the age of 18 at the time he committed this offense, so the only remaining issue is whether his Oregon offense was a felonious controlled substance offense for guideline purposes. It is the agon over that question that brings this case before us.

A controlled substance offense for the purpose of § 4B1.1 is defined as follows:

The term "controlled substance offense" means an offense under federal or state law, punishable by imprisonment for a term exceeding one year, that prohibits the manufacture, import, export, distribution, or dispensing of a controlled substance... or the possession of a controlled substance ... with intent to manufacture, import, export, distribute, or dispense.

Id. § 4B1.2(b). Moreover, the application notes inform us that: "`Crime of violence' and `controlled substance offense' include the offenses of aiding and abetting, conspiring, and attempting to commit such offenses." Id. § 4B1.2, comment. (n.1). Shumate insists that his Oregon conviction does not fit within those definitions because we must apply a categorical approach and, for all we know, he might have been convicted of mere solicitation under Oregon law, which, he argues, is not within the guideline's meaning.

We agree with Shumate that in determining whether a prior conviction qualifies as a career offender predicate, this court applies the categorical approach established by the United States Supreme Court in Taylor v. United States, 495 U.S. 575, 588-89, 110 S.Ct. 2143, 2153, 109 L.Ed.2d 607 (1990). See United States v. Sandoval-Venegas, 292 F.3d 1101, 1106 (9th Cir.2002); United States v. Corona-Sanchez, 291 F.3d 1201, 1203, 1212-13 (9th Cir.2002). We also agree that we must first look at the face of the statute itself and determine whether "the fact of conviction and the statutory definition of the prior offense" demonstrate that Shumate could not have been convicted of an offense outside the guideline definition. See Corona-Sanchez, 291 F.3d at 1203 (quotation marks omitted). If the predicate conviction does not pass that test, we may look a little further. We may also consider whether other documentation and judicially noticeable facts demonstrate that the offense was, indeed, within the Guidelines' definition. See United States v. Casarez-Bravo, 181 F.3d 1074, 1077 (9th Cir.1999); see also United States v. Rivera-Sanchez, 247 F.3d 905, 909 (9th Cir.2001). On the solicitation issue, we need not go beyond the first step, except to say that no other facts before us demonstrate that Shumate was not convicted of delivery of marijuana.⁴

We say we need go no further because Shumate's sole claim is that his offense is not categorically included in the Guidelines' definition due to the fact that the Oregon statute includes an attempt to deliver a controlled substance, and the Oregon courts have declared:

[I]f a person solicits another to engage in conduct constituting an element of the crime of delivery, e.g., to provide to the person a controlled substance for the purpose of distribution to third parties, the person has taken a substantial step toward committing the crime of attempted delivery under ORS 475.992(1). Under that statute, the conduct constitutes delivery.

State v. Sargent, 110 Or.App. 194, 198, 822 P.2d 726, 728 (1991). For purposes of this opinion, we accept Shumate's assertion that his conviction might have been for solicitation of delivery of marijuana. If so, the question is whether solicitation is within the Guidelines' definition of a controlled substance offense for purposes of § 4B1.1. We are satisfied that it is.

In reaching that conclusion, we are guided by our decision in United States v. Cox, 74 F.3d 189, 190 (9th Cir.1996). In Cox, the defendant solicited the murder of his wife by requesting that another person carry out that dastardly deed with a promise of remuneration. Id. at 189-90. Cox was duly convicted for making that request. He asserted that mere solicitation was enough to result in his conviction in Texas, "whether or not the recipient of the request responds or was likely to respond." Id. at 190. Thus, said he, the offense was not included in the Guidelines' definition of a crime of violence because, beyond commission of the offense itself, the guideline only refers to "`aiding and abetting, conspiring and attempting to commit'" the offense in question. Id. (citation omitted).

We rejected that assertion and pointed out that the categories mentioned in the definition did not exhaust the possibilities. Id. What Cox had overlooked was the fact that the list he recited was preceded by the word "include." See USSG § 4B1.2, comment. (n.1). In guideline parlance "[t]he term `includes' is not exhaustive...." Id. § 1B1.1, comment. (n.2). If Cox was not aware of that, we were and said: "We do note that the Guidelines themselves instruct us that when they use the term `includes' they do not mean to be exhaustive. Consequently, the omission of solicitation from the list does not carry legal significance." Cox, 74 F.3d at 190 (citation omitted). In other words, solicitation was included in the definition of the predicate offense for the purposes of § 4B1.1.⁵

We do not see how a single definition which refers to two different categories of crime — crimes of violence and controlled substance offenses — could mean one thing as applied to one category and something different as applied to the other. Rather, the scope of the provision must be the same for both categories of offense. In so stating, we are aware of the fact that in Cox we went on to point out that solicitation of murder does constitute "a high degree of threat of physical force" against the proposed victim. Id. As we see it, that makes no real difference; it can as easily be said that solicitation of delivery...