United States v. Sahagun-Gallegos, 13–10095.

• Decision Date: 10 April 2015
• Docket Number: No. 13–10095.,13–10095.
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Ruben SAHAGUN–GALLEGOS, aka Ruben Gallegos Sahagun, aka Ruben Sahugun–Gallegos, Defendant–Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

782 F.3d 1094

UNITED STATES of America, Plaintiff–Appellee

v.Ruben SAHAGUN–GALLEGOS, aka Ruben Gallegos Sahagun, aka Ruben Sahugun–Gallegos, Defendant–Appellant.

No. 13–10095.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 13, 2015.

Filed April 10, 2015.

Davina T. Chen (argued), Law Office of Davina T. Chen, Glendale, CA, for Defendant–Appellant.

Robert A. Fellrath (argued), Assistant United States Attorney, John S. Leonardo, United States Attorney, Robert L. Miskell, Appellate Chief, and Christina M. Cabanillas, Assistant United States Attorney, United States Attorney's Office, Tucson, AZ, for Plaintiff–Appellee.

Appeal from the United States District Court for the District of Arizona, David C. Bury, District Judge, Presiding. D.C. No. 4:12–cr–01649–DCB–DTF–1.

Before: JOHN T. NOONAN, WILLIAM A. FLETCHER, and MORGAN CHRISTEN, Circuit Judges.

OPINION

CHRISTEN, Circuit Judge:

We consider in this case whether, consistent with Descamps v. United States, ––– U.S. ––––, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013), a sentencing court conducting the modified categorical approach may rely on a defense attorney's statement of the factual basis for a guilty plea and use the process of elimination to determine which subsection of a divisible statute the defendant pleaded guilty to violating. We conclude that it may not, and we vacate and remand for resentencing.

BACKGROUND

Ruben Sahagun–Gallegos was deported to Mexico in 2006. He returned to the United States, and in 2008 he pleaded guilty in Pima County Superior Court to aggravated assault with a deadly weapon in violation of Arizona Revised Statutes (A.R.S.) § 13–1204(A)(2). Shortly after his prison term began, he was released to the custody of Immigration and Customs Enforcement, convicted of illegal re-entry in federal court, and deported.

Sahagun–Gallegos again returned to the United States. In August 2012, he was indicted in federal court for illegal reentry in violation of 8 U.S.C. § 1326 (enhanced by 8 U.S.C. § 1326(b)(1) ). He pleaded guilty to the indictment without a plea agreement.

Before sentencing, a probation officer prepared a presentence investigation report (PSR). The PSR determined Sahagun–Gallegos's base offense level under the Sentencing Guidelines was 8. The PSR recommended a 16–level enhancement based on its conclusion that Sahagun–Gallegos's aggravated assault conviction qualified as a felony “crime of violence.” After a 2–level deduction for acceptance of responsibility, the PSR calculated the total offense level as 22. According to the PSR, “[t]he government indicated a motion for the third-level reduction for acceptance of responsibility will be made if the defendant waives his appeal rights.”

The Government submitted three documents pertaining to Sahagun–Gallegos's aggravated assault conviction in support of the 16–level enhancement: the plea agreement, the plea hearing transcript, and the grand jury transcript. Neither Sahagun–Gallegos nor the Government filed objections to the PSR.

At sentencing, the district court inquired whether Sahagun–Gallegos's counsel had looked carefully at the 16–level enhancement. Counsel responded that she believed, based on the plea hearing transcript from the 2008 conviction, that Sahagun–Gallegos's aggravated assault conviction qualified as a “crime of violence” under the Sentencing Guidelines. Counsel also stated that Sahagun–Gallegos was not waiving his appeal rights in exchange for a third-level reduction for acceptance of responsibility.

The district court accepted the PSR's Guidelines calculation. Based on a total offense level of 22 and a criminal history category of IV, the court determined the Guidelines range was 63 to 78 months' imprisonment. The court varied the sentence downward and imposed a sentence of 48 months' imprisonment, followed by a three-year term of supervised release. The court explained that after serving this sentence, Sahagun–Gallegos would be deported.

Sahagun–Gallegos timely appealed his sentence, but his attorney filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and requested permission to withdraw.¹ A panel of our court conducted an independent review of the record and identified two potentially arguable issues for direct appeal: (1) whether the district court plainly erred by applying the 16–level enhancement based on Sahagun–Gallegos's aggravated assault conviction; and (2) whether the Government improperly withheld a motion for a third-level reduction for acceptance of responsibility on the ground that Sahagun–Gallegos refused to waive his appeal rights. The panel granted the motion to withdraw, but directed that a new attorney be appointed for Sahagun–Gallegos.

JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). We review de novo the district court's interpretation of the Sentencing Guidelines. United States v. Swank, 676 F.3d 919, 921 (9th Cir.2012). “We have previously noted an intracircuit conflict as to whether the standard of review for application of the Guidelines to the facts is de novo or abuse of discretion.” Id. at 921–22. We need not resolve that conflict here because, as in Swank, “[t]he choice of standard ... does not affect the outcome of this case.” See id. at 922.

DISCUSSION

I. Remand is required because the Government improperly withheld a motion for a third-level reduction for acceptance of responsibility.

Under § 3E1.1(a) of the Sentencing Guidelines, a defendant is entitled to have his total offense level decreased by 2 if he “clearly demonstrates acceptance of responsibility for his offense.” Section 3E1.1(b) provides:

If the defendant qualifies for a decrease under subsection (a), the offense level determined prior to the operation of subsection (a) is level 16 or greater, and upon motion of the government stating that the defendant has assisted authorities in the investigation or prosecution of his own misconduct by timely notifying authorities of his intention to enter a plea of guilty, thereby permitting the government to avoid preparing for trial and permitting the government and the court to allocate their resources efficiently, decrease the offense level by 1 additional level.

The district court reduced Sahagun–Gallegos's offense level by 2 because he clearly demonstrated acceptance of responsibility. The PSR indicated the Government would have moved for a third-level reduction if Sahagun–Gallegos had waived his appeal rights.

While Sahagun–Gallegos's appeal was pending, the application notes to § 3E1.1 were amended to clarify that “[t]he government should not withhold [a motion for a third-level reduction] based on interests not identified in § 3E1.1, such as whether the defendant agrees to waive his or her right to appeal.” U.S. Sentencing Guidelines Manual § 3E1.1 cmt. n. 6 (2014). The Government acknowledges that this revision applies retroactively to defendants whose cases were pending on direct appeal, and that Sahagun–Gallegos's “sentence should be vacated and remanded so that the district court can assess whether [he] should receive a third point [for] acceptance of responsibility.” We therefore vacate Sahagun–Gallegos's sentence and remand for resentencing.

II. Applicability of the 16–level enhancement based on Sahagun–Gallegos's aggravated assault conviction.

Section 2L1.2(a) of the Sentencing Guidelines calls for a base offense level of 8 for a defendant convicted of illegal reentry. Section 2L1.2(b) calls for a 16–level enhancement if the defendant has a prior felony conviction for “a crime of violence.” U.S.S.G. § 2L1.2(b)(1)(A)(ii). “Crime of violence” is defined to include “any ... offense under federal, state, or local law that has as an element the use, attempted use, or threatened use of physical force against the person of another.” U.S. Sentencing Guidelines Manual § 2L1.2 cmt. n. 1 (B)(iii) (2014).

Sahagun–Gallegos argues his 2008 aggravated assault conviction does not qualify as a “crime of violence,” but he did not make this argument before the district court. Under these circumstances, this court's review ordinarily would be for plain error. United States v. Guzman–Mata, 579 F.3d 1065, 1068 (9th Cir.2009). “Plain error is ‘(1) error, (2) that is plain, and (3) that affects substantial rights.’ ” Id. (quoting United States v. Rodriguez–Lara, 421 F.3d 932, 948 (9th Cir.2005) ).² But because we vacate Sahagun–Gallegos's sentence for the reasons discussed in the previous section, and because the applicability of the 16–level enhancement is an issue that will reoccur at resentencing, we address the applicability of the enhancement in order to provide guidance to the district court on remand.

A. The statute of conviction is overbroad and divisible.

We employ the “categorical approach” set forth in Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), to determine whether a prior state court conviction qualifies as a “crime of violence” under the Sentencing Guidelines. Under the Taylor framework, we determine whether the statute of conviction is categorically a “crime of violence” by comparing the elements of the statute of conviction with the generic federal definition. United States v. Caceres–Olla, 738 F.3d 1051, 1054 (9th Cir.2013). If the statute of conviction is broader than the generic federal definition, we must determine whether the statute of conviction is divisible. Alvarado v. Holder, 759 F.3d 1121, 1126 (9th Cir.2014). A divisible statute is one that “ ‘comprises multiple, alternative versions of the crime,’ at least one of which ‘correspond[s] to the generic offense.’ ” Id. (alteration in original) (quoting Descamps, 133 S.Ct. at 2284–85 ).

If the statute of conviction is divisible, then under the “modified categorical approach” we may examine a limited class of judicially noticeable documents to determine whether the alternative corresponding to the generic offense was the basis of the...