U.S. v. Smith

• Decision Date: 03 December 2004
• Docket Number: No. 03-30533.,03-30533.
• Citation: 390 F.3d 661
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Timothy Dean SMITH, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

390 F.3d 661

UNITED STATES of America, Plaintiff-Appellee, v. Timothy Dean SMITH, Defendant-Appellant.

No. 03-30533.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted September 13, 2004.

Filed December 3, 2004.

Craig E. Weinerman, Assistant Federal Public Defender, Eugene, Oregon, for the defendant-appellant.

Frank R. Papagni, Jr., Assistant United States Attorney, Eugene, Oregon, 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-02-60101-1-ALA.

Before: WALLACE, GOULD and BEA, Circuit Judges.

WALLACE, Senior Circuit Judge.

Smith appeals from his sentence because of the enhancement imposed by the district court pursuant to the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e). He contends the district court improperly relied on statements made at a no contest plea hearing in concluding that an earlier state burglary conviction qualifies as a "violent felony" for purposes of the ACCA. In addition, Smith asserts that the district court engaged in fact-finding which violated the constitutional principle established in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). The district court had jurisdiction pursuant to 18 U.S.C. § 3231. We have jurisdiction over this timely appeal pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742, and we affirm.

I.

A federal indictment charged Smith with being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1), and alleged that he qualified for a sentence enhancement as an Armed Career Criminal due to at least three prior burglary convictions in California. Smith pleaded guilty and admitted he had been convicted of the alleged prior offenses, but he reserved the right to challenge the constitutional, statutory, or factual validity of his prior convictions at sentencing.

The government submitted documentation regarding Smith's prior convictions for two burglaries in Placer County in 1984, two burglaries in Orange County in 1985, and a burglary in Sacramento County in 1993. The district court concluded that Smith's convictions in Sacramento County and Placer County qualified as "violent felonies" under 18 U.S.C. § 924(e)(2)(B)(ii). As provided by section 924(e)(1), the court imposed the mandatory minimum sentence of fifteen years. Smith does not dispute the applicability of section 924(e)(2) to the two Placer County convictions. Therefore, the main issue addressed in this appeal is whether the Sacramento conviction qualifies as a violent felony.

For the Sacramento conviction, the government submitted the transcript of the plea hearing and the abstract of judgment. The judgment indicates that Smith was convicted of burglary in the first degree, in violation of California Penal Code § 459. The state court transcript establishes that at the change of plea hearing, the prosecutor stated the factual basis for the burglary charge:

With regard to 92F07246, on the date set forth in the Complaint, in the County of Sacramento, the defendant willfully and unlawfully entered an inhabited dwelling occupied by Jennifer Smith located at 3624 Ronk, R-O-N-K, Way. Once inside he did take personal property belonging to her.

After the magistrate asked Smith's counsel if she "wish[ed] to comment on [the] factual basis," his counsel replied:

No. The only comment is that he entered his former occupant [sic]. He entered his former home which he considered to be his current home. He had only been away for two days. The codes were changed. He went in and retrieved some of his personal items, all of which were still at his home, all personal items and toiletry of four years duration in that home. He did, however, take some things he should not have that did not belong to him.

The magistrate then questioned Smith to ascertain whether he understood the consequences of his plea. After finding there was a factual basis for the plea, the magistrate found Smith guilty of first degree burglary.

We review de novo whether a conviction is a predicate felony for purposes of the ACCA. United States v. Bonat, 106 F.3d 1472, 1474 (9th Cir.1997). We also review de novo whether the district court violated the constitutional rule articulated in Apprendi. United States v. Pina-Jaime, 332 F.3d 609, 611 (9th Cir.2003).

II.

The ACCA requires a fifteen year minimum sentence for any person who violates the felon-in-possession prohibition of 18 U.S.C. § 922(g) and has three prior convictions for a "violent felony." 18 U.S.C. § 924(e)(1). The term "violent felony" is defined to include burglary offenses which are punishable by more than one-year imprisonment. Id. § 924(e)(2)(B).

In Taylor v. United States, 495 U.S. 575, 599, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), the Supreme Court established a generic definition of burglary for purposes of section 924(e)(2)(B): "[1] unlawful or unprivileged entry into, or remaining in, [2] a building or structure, [3] with intent to commit a crime." A court generally must apply a categorical approach at sentencing to determine whether a defendant was convicted of conduct which included these three elements of generic burglary. That is, it may "look only to the fact of conviction and the statutory definition of the prior offense." Id. at 602, 110 S.Ct. 2143.

In this case, we first apply the Taylor categorical analysis to Smith's no contest plea. See Bonat, 106 F.3d at 1476 ("It is well accepted that the Taylor analysis applies not only to convictions resulting from a jury finding of guilt, it also applies when the defendant has pled guilty"). California Penal Code § 459 provides in part that "[e]very person who enters any ... building ... with intent to commit grand or petit larceny or any felony is guilty of burglary." This definition expressly requires that a defendant have entered with the intent to commit a crime. See United States v. Alvarez, 972 F.2d 1000, 1005 (9th Cir.1992) (per curiam) (stating that a conviction pursuant to section 459 requires that "the defendant had, at the time of entry, the intent to commit a crime"). Therefore, the fact of Smith's conviction pursuant to section 459 establishes the intent element of generic burglary.

Section 459 does not, however, require that the entry be unlawful, nor does it require that the entry be into a building. See Taylor, 495 U.S. at 591, 110 S.Ct. 2143 (stating that "California defines `burglary' so broadly as to include shoplifting and theft of goods from a `locked' but unoccupied automobile" and citing California Penal Code § 459); United States v. Franklin, 235 F.3d 1165, 1169 (9th Cir.2000) ("We have previously and unequivocally held that California Penal Code section 459 is far too sweeping to satisfy the Taylor definition of generic burglary"). Thus, applying a categorical analysis, these elements of generic burglary are not satisfied.

Yet, "in a narrow range of cases" where a factfinder "was actually required to find all the elements of generic burglary," a court may apply a modified categorical approach and look "beyond the mere fact of conviction." Taylor, 495 U.S. at 602, 110 S.Ct. 2143. Although the court may not inquire into the underlying facts of the conviction, Bonat, 106 F.3d at 1475, it may examine "documentation or judicially noticeable facts that clearly establish that the conviction is a predicate conviction for enhancement purposes." United States v. Rivera-Sanchez, 247 F.3d 905, 908 (9th Cir.2001) (en banc) (quoting United States v. Casarez-Bravo, 181 F.3d 1074, 1077 (9th Cir.1999)). The record must "unequivocally" establish that the defendant was convicted of the generic crime. United States v. Corona-Sanchez, 291 F.3d 1201, 1211 (9th Cir.2002) (en banc).

The record here consists of the transcript of the plea hearing and the abstract of judgment. In Bonat, we held that "examining the plea transcript was not an impermissible factual inquiry" by the district court. 106 F.3d at 1474. We reasoned that considering an oral admission that was later transcribed entailed no more of a factual inquiry than examining a signed plea statement, which was permitted in United States v. Sweeten, 933 F.2d 765, 769 (9th Cir.1991) (per curiam). Bonat, 106 F.3d at 1477. We have also allowed a court to consider a judgment of conviction. E.g., United States v. Hernandez-Valdovinos, 352 F.3d 1243, 1248 (9th Cir.2003). Therefore, although courts are "limited to consulting a narrow and carefully specified set of documents" when applying the modified categorical approach, United States v. Pallares-Galan, 359 F.3d 1088, 1099 (9th Cir.2004), the documents in the record here are clearly appropriate for review. See Franklin, 235 F.3d at 1170 n. 5 (listing documents which a sentencing court may consider).

In determining that this record clearly established the elements of generic burglary, the district court reasoned that the factual basis for the charge, as set forth by the prosecutor at the change of plea hearing, expressly stated that Smith "unlawfully entered an inhabited dwelling." Furthermore, when specifically asked to comment, defense counsel did not object to this statement; rather, she explained that Smith had entered his "former home" where the "codes were changed." We conclude that these statements unequivocally establish that Smith was convicted of unlawfully entering a building.

Smith argues that the lack of a charging document in the record prevents consideration of the change of plea transcript. Although the various combinations of documents identified as permissible in Corona-Sanchez, 291 F.3d at 1211, all included a charging document, we do not read our opinion as establishing a per se requirement. We have "interpreted Taylor's edict to include examination of `documentation or judicially noticeable facts that clearly establish that the conviction is a predicate conviction for enhancement purposes[,] such as the indictment, the judgment...