United States v. Lee

• Citation: 704 F.3d 785
• Decision Date: 28 December 2012
• Docket Number: No. 10–10403.,10–10403.
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Jason LEE, Defendant–Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

704 F.3d 785

UNITED STATES of America, Plaintiff–Appellee,

v.Jason LEE, Defendant–Appellant.

No. 10–10403.

United States Court of Appeals,

Ninth Circuit.

Argued and Submitted Feb. 13, 2012.

Filed Dec. 28, 2012.

Ethan A. Balogh (argued), Coleman & Balogh LLP, San Francisco, CA; and Benjamin L. Coleman, Coleman & Balogh LLP, San Diego, CA, for Defendant–Appellant.

Melinda Haag, United States Attorney; Barbara J. Valliere, Chief, Appellate Division, Assistant United States Attorney; Andrew P. Caputo and Laurie Kloster Gray (argued), Assistant United States Attorneys, San Francisco, CA, for Plaintiff–Appellee.

Appeal from the United States District Court for the Northern District of California, Vaughn R. Walker, District Judge, Presiding. D.C. No. 3:09–cr–00193–VRW–1.

Before: SIDNEY R. THOMAS, RAYMOND C. FISHER, and SANDRA S. IKUTA, Circuit Judges.

OPINION

FISHER, Circuit Judge:

We consider whether the district court erred by sentencing Jason Lee as a career offender under U.S. Sentencing Guidelines Manual § 4B1.1 based on his two prior convictions under California Health and Safety Code § 11352(a). We hold that the government has not satisfied its burden of showing that one of these two convictions qualifies as a predicate offense and remand for the district court to reconsider Lee's career offender status.

I.

Jason Lee was convicted of distributing crack cocaine in violation of 21 U.S.C. § 841. The district court sentenced Lee as a career offender under U.S. Sentencing Guidelines Manual § 4B1.1 after concluding that his two prior convictions under California Health & Safety Code § 11352(a) qualified as controlled substance offenses. The guidelines recommended 262 to 327 months' imprisonment. After considering the 18 U.S.C. § 3553(a) factors, the court sentenced Lee to 180 months.

Lee timely appeals, arguing that the district court erred when it classified him as a career offender.

II.

We review de novo a district court's interpretation of the guidelines and its determination that a defendant qualifies as a career offender under § 4B1.1. See United States v. Mitchell, 624 F.3d 1023, 1026 (9th Cir.2010).

III.

A defendant is a career offender if:

(1) the defendant was at least 18 years old at the time he 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.

U.S. Sentencing Guidelines Manual § 4B1.1(a). Lee contests only the third requirement.

To determine whether a defendant's prior conviction qualifies as a predicate offense, we apply the “categorical approach” and “modified categorical approach” set forth in Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). Under the categorical approach, we “look only to the statute of conviction.” United States v. Crawford, 520 F.3d 1072, 1078 (9th Cir.2008) (citation omitted). We “compare the elements of the statutory definition of the crime of conviction with a federal definition of the crime to determine whether conduct proscribed by the statute is broader than the generic federal definition.” United States v. Gonzalez–Aparicio, 663 F.3d 419, 425 (9th Cir.2011) (citation and internal quotation marks omitted). “[E]ven the least egregious conduct the statute [of conviction] covers must qualify.” Id. (alterations in original) (citation and internal quotation marks omitted).

If the statute is facially over-inclusive, we employ the modified categorical approach. See Crawford, 520 F.3d at 1078. Under this approach, the prior conviction qualifies as a career offender predicate offense only “if ‘documentation or judicially noticeable facts ... clearly establish that the conviction is a predicate conviction for enhancement purposes.’ ” Id. (alteration in original) (quoting United States v. Corona–Sanchez, 291 F.3d 1201, 1211 (9th Cir.2002) (en banc)). When, as here, the prior conviction was based on a guilty plea, our review is limited to the charging document, plea agreement, transcript of the plea colloquy and comparable judicial records. See id. “The government has the burden to establish clearly and unequivocally that the conviction was based on all of the elements of a qualifying predicate offense.” Id. (quoting United States v. Kovac, 367 F.3d 1116, 1119 (9th Cir.2004)) (internal quotation marks omitted).

We apply the categorical and modified categorical approaches to Lee's § 11352(a) convictions in turn.

A. Categorical Approach

In 1998, Lee twice pled guilty to violating California Health & Safety Code § 11352(a)—one violation occurred in San Francisco, and the other in Alameda County. At the time of his convictions, § 11352(a) provided that “every person who transports, imports into this state, sells, furnishes, administers, or gives away, or offers to transport, import into this state, sell, furnish, administer, or give away, or attempts to import into this state or transport [certain substances specified in the California Uniform Controlled Substances Act] shall be punished by imprisonment in the state prison for three, four, or five years.” Cal. Health & Safety Code § 11352(a) (1998).

The U.S. Sentencing Guidelines define “controlled substance offense” as an offense “punishable by imprisonment for a term exceeding one year, that prohibits the manufacture, import, export, distribution, or dispensing of a controlled substance (or a counterfeit substance) or the possession of a controlled substance (or a counterfeit substance) with intent to manufacture, import, export, distribute, or dispense.” U.S.S.G. § 4B1.2.

The government concedes that § 11352(a) encompasses a broader range of conduct than the guidelines definition because § 11352(a), for instance, criminalizes the transportation of a controlled substance, which would not be a controlled substance offense. The government thus agrees that Lee's convictions under § 11352(a) are not categorically controlled substance offenses. See Crawford, 520 F.3d at 1078 (also noting the government's concession that § 11352(a) “is too broad to qualify under the categorical approach because [it] covers such a wide range of possible behavior”).

B. Modified Categorical Approach

The government argues that Lee's two § 11352(a) convictions nonetheless qualify as controlled substance offenses under the modified categorical approach.

i. San Francisco Conviction

The government has proffered the following records to establish that Lee's San Francisco conviction was a controlled substance offense:

• An information, count one of which charges that Lee “did wilfully and unlawfully transport, import into the State of California, sell, furnish, administer, and give away, and offer to transport, import into the State of California, sell, furnish, administer, and give away, and attempt to import into the State of California and transport a controlled substance, to wit, COCAINE Schedule I.”

• Minute orders from Lee's change of plea and sentencing hearings that indicate Lee pled guilty to count one.

The government's sole argument is that Lee's plea to the conjunctively phrased charging document establishes that he pled guilty to all of the conduct charged. Thus, Lee pled guilty to selling a controlled substance, which would qualify as a controlled substance offense. We recently rejected this argument in Young v. Holder, 697 F.3d 976 (9th Cir.2012) (en banc).

Considering a defendant's plea to a count that also recited § 11352(a) in the conjunctive, we held: “when either ‘A’ or ‘B’ could support a conviction, a defendant who pleads guilty to a charging document alleging ‘A and B’ admits only ‘A’ or ‘B.’ Thus, when the record of conviction consists only of a charging document that includes several theories of the crime, at least one of which would not qualify as a predicate conviction, then the record is inconclusive under the modified categorical approach.” Id. at 988. Here, as in Young, at least one of the theories charged—for instance, that Lee transported cocaine—would not qualify as a predicate offense. The record is thus inconclusive as to whether Lee's San Francisco § 11352(a) conviction was a controlled substance offense, falling short of the government's burden to establish the predicate offense clearly and unequivocally.¹

ii. Alameda County Conviction

The government relies on the following documents to show that Lee's Alameda County conviction under § 11352(a) was a controlled substance offense:

• An indictment charging that Lee “did then and there sell and offer to sell a controlled substance, to wit: cocaine base.”

• A court document, which appears to have followed Lee's change of plea hearing, stating that Lee pled guilty to violating § 11352(a) “as charged in the Indictment.”

• A minute order, also stating that Lee pled guilty to violating § 11352(a) “as charged in the Indictment” and imposing a sentence that was suspended for a three-year probationary period.

These documents on their face establish that Lee pled guilty to selling or offering to sell cocaine base—conduct that falls squarely within the definition of controlled substance offense.² Lee acknowledges that this evidence would ordinarily be sufficient to establish that a defendant pled guilty to selling or offering to sell cocaine base. See United States v. Snellenberger, 548 F.3d 699, 702 (9th Cir.2008) (en banc) (per curiam) (holding that a minute order can be relied upon to prove that the defendant pled guilty to a particular count in a charging document), overruled on other grounds by Young, 697 F.3d at 979, 986–88. He argues, however, that the court records here are internally inconsistent as to whether he pled to a sales offense or a transportation offense, and thus do not prove with sufficient certainty that he was convicted of a qualifying offense.

In particular, Lee focuses on the minute order that...