United States v. Cate
| Decision Date | 21 August 2020 |
| Docket Number | No. 19-30161,19-30161 |
| Citation | 971 F.3d 1054 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Ryan Larry CATE, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Matthew Campbell, Federal Defenders of Eastern Washington & Idaho, Spokane, Washington, for Defendant-Appellant.
William D. Hyslop, United States Attorney; Russell E. Smoot, Assistant United States Attorney; United States Attorney's Office, Spokane, Washington, for Plaintiff-Appellee.
Before: A. Wallace Tashima, William A. Fletcher, and Johnnie B. Rawlinson, Circuit Judges.
Ryan Cate, convicted of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1), was charged with violating the conditions of his supervised release.
He moved to terminate supervised release on the ground that a change in the law meant that his underlying state offense was no longer a felony. The district court denied the motion, found that Cate had violated his supervised release, and imposed a fifteen-month term of imprisonment.
For the reasons set forth below, we agree with the district court that the validity of an underlying conviction cannot be challenged in a supervised release revocation proceeding. We further conclude that the sentence imposed by the district court was reasonable and therefore affirm the judgment.
United States v. McAdory , 935 F.3d 838, 840–41 (9th Cir. 2019) (quoting RCW §§ 9.94A.505(2)(a)(i), 9.94A.510, 9.94A.535 ). Cate's standard sentence range, based on an offender score of zero and a seriousness level of III, was one to three months. Because Cate qualified as a first-time offender under RCW §§ 9.94A.030 and 9.94A.650, the court waived the standard sentence and imposed zero days of confinement.
In September 2014, Cate was convicted of being a felon in possession of a firearm under § 922(g), which requires a prior conviction of "a crime punishable by imprisonment for a term exceeding one year." 18 U.S.C. § 922(g)(1). The underlying felony conviction was his state assault conviction. He was sentenced to a term of eight months’ imprisonment and three years of supervised release.
After serving his term of imprisonment, Cate began serving his term of supervised release on May 1, 2015. In July 2017, Cate was charged with violating two conditions of his supervision: (1) that he not commit another crime (by being arrested for vehicular manslaughter on July 16, 2017), and (2) that he abstain from alcohol.
In January 2019, while the supervised release violation proceeding was still pending,1 we addressed whether a Washington conviction was a felony for purposes of an enhancement under the United States Sentencing Guidelines. We held that the term "punishable by" referred to the sentence to which a defendant is actually exposed under Washington's sentencing scheme, rather than the general statutory maximum term. United States v. Valencia-Mendoza , 912 F.3d 1215, 1216, 1223–24 (9th Cir. 2019).
Relying on Valencia-Mendoza , Cate filed a motion to terminate his supervised release, arguing that he was innocent of the felon-in-possession charge because the actual maximum term of imprisonment for his underlying offense was only three months, which meant that the state offense was not a felony.
The district court denied Cate's motion, explaining that, although the court was bound by Valencia-Mendoza , the court could not simply declare Cate factually innocent. Instead, the court reasoned that the proper procedure would be for Cate to collaterally attack the validity of his sentence under 28 U.S.C. § 2255. Finding that there were no equities weighing in favor of terminating Cate's supervised release and that Cate had committed the two violations alleged in the petition, the district court imposed a sentence of fifteen months’ imprisonment and twenty-one months of supervised release. Cate timely appealed from the judgment entered July 12, 2019.
The district court's decision whether to grant a motion to terminate supervised release is reviewed for abuse of discretion. United States v. Emmett , 749 F.3d 817, 819 (9th Cir. 2014). A sentence imposed on revocation of supervised release is reviewed for reasonableness. United States v. Campbell , 937 F.3d 1254, 1256 (9th Cir. 2019). "When reviewing a sentence for reasonableness, we ‘merely ask[ ] whether the trial court abused its discretion.’ " United States v. Apodaca , 641 F.3d 1077, 1079 (9th Cir. 2011) (quoting Rita v. United States , 551 U.S. 338, 351, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007) ). This court "conduct[s] a two-step analysis when reviewing the reasonableness of a sentence: ‘we first consider whether the district court committed significant procedural error, then we consider the substantive reasonableness of the sentence.’ " Id. at 1080–81 (quoting United States v. Carty , 520 F.3d 984, 993 (9th Cir. 2008) (en banc)).
At the time of Cate's felon-in-possession conviction, in order to determine whether an offense was "punishable by imprisonment for a term exceeding one year," as required by § 922(g)(1), the maximum term was " ‘the statutory maximum sentence for the offense, not the maximum sentence available in the particular case under the sentencing guidelines.’ " Valencia-Mendoza , 912 F.3d at 1219 (quoting United States v. Murillo , 422 F.3d 1152, 1154 (9th Cir. 2005) ). However, in light of more recent Supreme Court precedent requiring courts to consider the crime "as actually prosecuted and adjudicated," Valencia-Mendoza held that a conviction under Washington law carrying "a general statutory maximum term of imprisonment of five years," but an "actual maximum term" of only six months due to Washington's mandatory sentencing ranges, was no longer a felony for purposes of a sentencing enhancement. Id. at 1216, 1224.
In McAdory , we applied Valencia-Mendoza to hold that a defendant's convictions under Washington law were not felonies for purposes of § 922(g)(1). McAdory , 935 F.3d at 840. Similar to Cate, the statutory maxima for the defendant's offenses of conviction were five years and ten years, but his actual sentencing ranges were less than a year. Id . at 841. Cate thus relies on McAdory to argue that his Washington offense was not a felony for purposes of § 922(g)(1) because the sentence to which he actually was exposed was less than a year. Although this may be correct, the supervised release hearing was not the proper proceeding in which to challenge his underlying federal conviction.
In United States v. Simmons , 812 F.2d 561 (9th Cir. 1987), the defendant challenged the revocation of his probation, as well as the guilty plea that led to probation. Explaining that the underlying conviction "may be collaterally attacked only in a separate proceeding under 28 U.S.C. § 2255, and a court should consider the petition for probation revocation as if the underlying conviction was unquestioned," we held that "an appeal from a probation revocation is not the proper avenue for a collateral attack on the underlying conviction." Id. at 563. Although Simmons involved a probation revocation proceeding, we conclude that Simmons ’ rationale should control; therefore, a supervised release revocation proceeding similarly is not a proper forum in which to challenge an underlying conviction. Cf. United States v. Castro-Verdugo , 750 F.3d 1065, 1068–70 (9th Cir. 2014) ().
The decision whether to terminate supervised release is governed by 18 U.S.C. § 3583(e), which provides that the court may modify the conditions of or revoke supervised release "after considering the factors set forth in [ 18 U.S.C.] section 3553(a)(1), (a)(2)(B), (a)(2)(C), (a)(2)(D), (a)(4), (a)(5), (a)(6), and (a)(7)." The factors "include the nature and circumstances of the offense, the need for deterrence, the need to protect the public, the need to provide defendant with training or medical care, and the relevant provisions of the Sentencing Guidelines." United States v. Gross , 307 F.3d 1043, 1044 (9th Cir. 2002). The validity of the underlying conviction is not one of the factors to be considered.
We confronted a similar issue in Gross , where the defendant moved for modification of the terms of his supervised release on the ground that the imposition of the conditions was unlawful. There, we agreed with the district court's conclusion that "under 18 U.S.C. § 3583(e)(2), it had authority to modify these conditions upon consideration of certain statutorily enumerated factors, but not the factor of illegality." Id. at 1044. We explained:
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