U.S. v. Valenzuela

• Decision Date: 03 August 2007
• Docket Number: No. 06-30398.,06-30398.
• Citation: 495 F.3d 1127
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jose VALENZUELA, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

495 F.3d 1127

UNITED STATES of America, Plaintiff-Appellee, v. Jose VALENZUELA, Defendant-Appellant.

No. 06-30398.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 9, 2007.

Filed August 3, 2007.

Gerald Needham, Assistant Federal Public Defender, Portland, OR, for appellant Jose Valenzuela.

Thomas H. Edmonds, Assistant United States Attorney, Portland, OR, for appellee United States of America.

Appeal from the United States District Court for the District of Oregon; Ancer L. Haggerty, District Judge, Presiding. D.C. No. CR-04-00442-ALH.

Before: RONALD M. GOULD, RICHARD A. PAEZ, and JOHNNIE B. RAWLINSON, Circuit Judges.

GOULD, Circuit Judge:

United States Sentencing Guidelines § 2K2.1(b)(5) (2005) enables a district court to increase a defendant's base offense level by four if the defendant possessed or used a firearm in connection with another felony offense. Application Note 15¹ to § 2K2.1(b)(5) precludes such an enhancement when the other felony offense involved a firearms trafficking or firearms possession offense. Here, Jose Valenzuela ("Valenzuela") used a shotgun to embolden his possession and sale of stolen property. Valenzuela appeals the district court's enhancement of his sentence under § 2K2.1(b)(5) arguing that his other felony offense was a firearms trafficking or possession offense. We have jurisdiction under 28 U.S.C. § 1291, we disagree with Valenzuela, and we affirm the district court's sentence.

I

On August 31, 2004, at about 10:30 a.m., Officer Araiza ("Araiza") saw Valenzuela driving a motor vehicle in Woodburn, Oregon. Araiza knew Valenzuela had a suspended driver's license, was wanted for parole violations, and was a suspect in several recent burglaries and vehicle thefts. Araiza stopped Valenzuela, and Officer Tony Rodriguez ("Rodriguez") responded to assist.

While Araiza was speaking with Valenzuela on the driver's side, Rodriguez approached Valenzuela's vehicle from the passenger side, stopping at a point where he could see the driver's side floorboard. On that floorboard, Rodriguez spotted .22 caliber shells. Rodriguez then saw Valenzuela reach down to the floorboard, where Rodriguez saw a pistol-grip. Rodriguez immediately ordered Valenzuela to put his hands in the air and to exit the vehicle. After Valenzuela was arrested, Rodriguez found a pistol-grip shotgun on the driver's side floorboard. Inside the vehicle and its trunk, the police officers also found several gun holsters, a gun case, a handgun, several rifles and bb guns, a duffel bag, clothing, a wallet, a camcorder, a backpack, and other shooting equipment.

After being advised of his rights, and waiving them, Valenzuela told the officers that: (1) about one hour before he was stopped, he had committed a burglary where he obtained the firearms and property in his vehicle; (2) after the burglary he sold a stolen firearm holster and a stolen .22 caliber rifle to two different friends; and (3) he was "on his way to get rid of the rest of the property" when he was stopped.

On March 6, 2006, Valenzuela pled guilty to being a felon in possession of a firearm. Sentencing took place on June 5, 2006. The Government argued that the pistolgrip shotgun that Rodriguez found near Valenzuela's feet emboldened him to commit the crime of sale or attempted sale of stolen property, or possession of stolen property. Valenzuela maintained that the burglary and the sale and possession of stolen firearms were not distinct in conduct or time sufficient to support the four-level enhancement. The district court applied § 2K2.1(b)(5),² increasing Valenzuela's base offense level by four. The district court sentenced Valenzuela to eighty-seven months, and Valenzuela timely appealed.

II

We must determine the proper standard of review for Valenzuela's argument. Valenzuela contends, raising this argument for the first time on appeal, that Application Note 15 precludes the district court from applying § 2K2.1(b)(5) because the other felony offense that he committed was a firearms trafficking or possession offense.

If a defendant does not raise an objection in the district court, but does so on appeal, we review that argument for plain error. See Fed.R.Crim.P. 52(b); United States v. Olano, 507 U.S. 725, 730-36, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993); United States v. Santiago, 466 F.3d 801, 803 (9th Cir.2006). Under the plain error standard, we will affirm Valenzuela's sentence unless there has been: (1) error, (2) that was plain, (3) that affected substantial rights, and (4) that seriously affected the fairness, integrity, or public reputation of the judicial proceedings. See United States v. Recio, 371 F.3d 1093, 1099-1100 (9th Cir. 2004). However, we review "the district court's interpretation of the Sentencing Guidelines de novo." United States v. Kimbrew, 406 F.3d 1149, 1151 (9th Cir. 2005).³

III

This case, one of first impression for us in interpreting § 2K2.1(b)(5), presents four sub-issues: (1) the definition of "another felony offense" in § 2K2.1(b)(5); (2) whether Application Note 15 to § 2K2.1(b)(5) precludes the use of firearms trafficking and possession offenses as "another felony offense" for enhancement under § 2K2.1(b)(5); (3) the test for determining whether a defendant's other felony offense is a firearms trafficking or possession offense; and (4) whether the district court plainly erred by enhancing Valenzuela's sentence under § 2K2.1(b)(5). We address each issue in turn.

In the 2005 Sentencing Guidelines Manual, § 2K2.1(b)(5) reads in pertinent part: "If the defendant used or possessed any firearm or ammunition in connection with another felony offense; or possessed or transferred any firearm or ammunition with knowledge, intent, or reason to believe that it would be used or possessed in connection with another felony offense, increase by 4 levels." Id.

We have previously defined the terms "use," "possession," and the phrase "in connection with." In United States v. Polanco, 93 F.3d 555 (9th Cir.1996), we applied the United States Supreme Court's definition of "use" in Bailey v. United States, 516 U.S. 137, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995),⁴ and held that "use" in § 2K2.1(b)(5) "`requires evidence sufficient to show an active employment of the firearm by the defendant, a use that makes the firearm an operative factor in relation to the predicate offense.'"<sup>5</sup> Polanco, 93 F.3d at 565 (quoting Bailey, 516 U.S. at 143). We stressed that "`the inert presence of a firearm, without more, is not enough to trigger'" the "use" clause of § 2K2.1(b)(5). Id. (quoting Bailey, 516 U.S. at 143).

In United States v. Routon, 25 F.3d 815 (9th Cir.1994), we defined the term "possession," in § 2K2.1(b)(5), stating that "the prosecution will have to make a greater showing than a defendant's mere possession of a firearm." Id. at 819. We held that possession requires "that the firearm was possessed in a manner that permits an inference that it facilitated or potentially facilitated—i.e., had some potential emboldening role in—a defendant's felonious conduct" to obtain a sentence enhancement under § 2K2.1(b)(5). Id. And in Polanco, we held that the phrase "in connection with" in § 2K2.1(b)(5) "requires proof of a `connection' between the use or possession of the firearm and the underlying offense." Polanco, 93 F.3d at 565-66.

We have not, however, previously defined the term "another felony offense" for § 2K2.1(b)(5) purposes. Application Note 4 defines "[f]elony offense" as "any offense (federal, state, or local) punishable by imprisonment for a term exceeding one year, whether or not a criminal charge was brought, or conviction obtained." U.S. Sentencing Guidelines Manual § 2K2.1 cmt. n. 4. This definition, however, literally would seem to allow a sentence enhancement for another felony offense that is a lesser included offense of the offense of conviction, or for felony offenses that are the same offense as the predicate offense. Many courts addressing this issue have rejected the position that "another felony offense" applies to any felony offense. See United States v. Lloyd, 361 F.3d 197, 200 (3d Cir.2004) (reasoning that to allow a sentence enhancement under § 2K2.1(b)(5) for "any" felony "would make little sense"); United States v. Fenton, 309 F.3d 825, 827 (3d Cir.2002) (same); United States v. Sanders, 162 F.3d 396, 400 (6th Cir.1998) (reasoning that to allow a sentence enhancement for a state law offense based on the same conduct as the federal predicate offense would render "the word `another' . . . superfluous, and of no significance to the application of" § 2K2.1(b)(5) (footnote omitted)); United States v. Szakacs, 212 F.3d 344, 350 (7th Cir.2000) (same).

To resolve this problem, some of our sister circuits have adopted the Blockburger⁶ test to determine if the second offense is "another felony offense." See United States v. Navarro, 476 F.3d 188, 196 (3d Cir.2007); United States v. Blount, 337 F.3d 404, 408 (4th Cir.2003); see also Lloyd, 361 F.3d at 204 (applying the Blockburger test to determine if assault and felon in possession of a firearm are the same offense); United States v. Emerson, 432 F.Supp.2d 128, 139 (D.Me.2006) (applying the Blockburger test as one part of a three-part analysis to determine if Emerson committed another felony offense for § 2K2.1(b)(5) enhancement purposes). The Blockburger test, originally applied in the double jeopardy context, provides that two offenses are separate if they both require proof of an element that the other does not. See Blockburger, 284 U.S. at 304, 52 S.Ct. 180. Using this test, a court would ask if the other felony offense and the firearms offense each contain an element different from the other. If they do, then the second felony offense may be used as "another felony offense" to enhance a defendant's sentence under § 2K2.1(b)(5).

Other courts have required that there be a separation of time or conduct between the firearms offense and the...