USA. v. Martinez

• Decision Date: 16 November 2000
• Docket Number: No. 99-50659,99-50659
• Citation: 232 F.3d 728
• Parties: (9th Cir. 2000) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. DAVID MARTINEZ, Defendant-Appellant
• Court: U.S. Court of Appeals — Ninth Circuit

Page 728

232 F.3d 728 (9th Cir. 2000)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. DAVID MARTINEZ, Defendant-Appellant.

No. 99-50659

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted August 10, 2000

Filed November 16, 2000

Shereen J. Charlick, Federal Defenders of San Diego, Inc., for defendant-appellant David Martinez.

Gregory A. Vega, United States Attorney, Southern District of California, Bruce R. Castetter, Chief, Appellate Section, and Cynthia Bashant, Assistant United States Attorney, San Diego, California, for appellee the United States of America.

Appeal from the United States District Court for the Southern District of California Thomas J. Whelan, District Judge, Presiding. D.C. No.CR-99-00722-TW.

Before: Robert Boochever, Stephen S. Trott, Marsha S. Berzon, Circuit Judges.

BERZON, Circuit Judge:

David Martinez appeals his sentence following conviction for importation of marijuana, in violation of 21 U.S.C. SS 952 and 960. Martinez argues that the Government failed to prove both that he imported more than fifty kilograms of marijuana and that he had the two predicate "controlled substance" convictions that would make him a "career offender " under the United States Sentencing Guidelines ("U.S.S.G.").

I. Background

Border agents stopped Martinez on February 11, 1999 at the San Ysidro Port of Entry and discovered, concealed in the truck that he was driving, 22 packages of marijuana with a gross combined weight of 60.6 kilograms. The packages were secured by duct tape and covered in grease.

The prosecution filed a two-count indictment on March 10, 1999, charging Martinez with importation and possession with intent to distribute approximately 60.6 kilograms of marijuana in violation of 21 U.S.C. SS 952, 960, and 841(a)(1). On May 5, 1999, Martinez filed a motion to compel the preservation of evidence. For purposes of that motion, Martinez assumed, without admitting, the truth of the complaint's statement of facts, including the quantity of marijuana found, but reserved "the right to take a contrary position at motions hearing or at trial." In its response to Martinez's motion, the Government agreed to preserve the marijuana evidence. Martinez withdrew his motion on May 10, 1999, and pled guilty without a plea agreement to one count of marijuana importation.

At the plea hearing, the district court informed Martinez that, based upon the weight of the marijuana involved, he faced a maximum penalty of twenty years imprisonment. Martinez stated that he understood that. The court then asked Martinez, "[a]s a factual basis for your plea. . . did you intentionally bring approximately 60 kilograms of marijuana into the United States?," and Martinez responded "[y]es." Martinez then pled guilty to "knowingly and intentionally import[ing] approximately 60.6 kilograms of marijuana, a Schedule I controlled substance."

The Presentence Report ("PSR") recommended a ten percent reduction in the quantity of marijuana, to account for the weight of the marijuana's packaging. With the ten percent reduction, the PSR calculated the net weight at 54.4 kilograms. Section 2D1.1(c)(10) of the Guidelines prescribes a base offense level of 20 for importation of between 40 and 60 kilograms net of marijuana, so the PSR began its computation of Martinez's sentence at that level. The PSR also concluded, however, that Martinez should be sentenced as a "career offender," pursuant to U.S.S.G. SS 4B1.1 and 4B1.2, based on Martinez's 1990 California conviction for "Possession of Marijuana For Sale," and his 1996 California conviction for, as the PSR described it, "Importation of More Than 28.5 grams of Marijuana into California."

If a district court finds that a defendant should be classified as a career offender, the career offender section of the Guidelines mandates enhancements to the defendant's base offense level, pegging the precise enhanced base level to the statutory maximum punishment applicable to the offense currently before the court for sentencing. Because the importation of between 50-100 kilograms of marijuana carries with it a statutory maximum sentence of twenty years, see 21 U.S.C. S 960(b)(3), the career offender finding necessarily increased Martinez's base offense level to 32. See U.S.S.G. S 4B1.1(C).

Although he had pled guilty based on approximately 60 kilograms of marijuana, Martinez objected -for purposes of the sentencing calculation -both to the amount of marijuana attributed to him in the PSR and to the PSR's conclusion that his 1996 California conviction for violating California Health & Safety Code S 11360(a) ("Section 11360(a)") qualified under U.S.S.G. S 4B1.2(b) as a "controlled substance" offense that could be counted toward career offender status. Relying on the "standard" ten percent packaging reduction recommended by the PSR and Martinez's statements at his plea hearing about the quantity of drugs he had imported, the district court found that Martinez had imported over 50 kilograms of marijuana.

On the career criminal issue, the court determined that Martinez could be classified as a career offender, deeming his 1996 conviction a predicate controlled substance offense. In reaching this conclusion, the court looked to the language of Section 11360(a), and to the "Abstract of Judgment" and a plea form from Martinez's 1996 conviction. Relying in particular on the fact that in the plea form Martinez had written, "I've transported marijuana across the border, " and over Martinez's objection that "border" could have meant a non international border, the district court found that the conviction "for transportation, importation of marijuana, in violation of . . . Section 11360(a) . . . does qualify as a predicate" offense under the career offender provision of the Guidelines, because it involved "import[ing]" marijuana within the meaning of U.S.S.G. S 4B1.2(b).

In sentencing Martinez, the district court accepted the PSR's conclusions with respect to the effect of the career offender status on Martinez's base offense level, and set that level at 32. The court then deducted three levels for Martinez's acceptance of responsibility, pursuant to U.S.S.G. S 3E1.1, and two levels for "the totality of the circumstances," resulting in an adjusted offense level of 27. Although the career offender Guideline mandated a criminal history category of VI, the district court downwardly departed to a category of III, placing Martinez in a Guideline range of 87 to 108 months. The court ultimately sentenced Martinez to the lowest end of that range: 87 months.

On appeal, Martinez argues that the Government failed to prove both that his 1996 California conviction qualifies as a predicate offense for career offender status under U.S.S.G. S 4B1.1 and that he imported more than 50 kilograms of marijuana.¹ If Martinez is right, he could have been sentenced to as few as 24 months.²

II. Career Offender Status

To be deemed a career offender under the Guidelines, (1) a defendant must have been at least eighteen years old at the time he committed the offense for which he is being sentenced, (2) that offense must be a felony that is either a crime of violence or a controlled substance offense, and (3) the defendant must have at least two prior felony convictions for either a crime of violence or a controlled substance offense. See U.S.S.G. S 4B1.1.

Only factor three is at issue here. Under the Guidelines, a "controlled substances" offense is an offense under federal or state law, 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 con trolled substance (or a counterfeit substance) with intent to manufacture, import, export, distribute, or dispense.

U.S.S.G. S 4B1.2(b) (emphasis added). The government here contends, and the district court held, that Martinez's 1996 California conviction was for "import[ing] " marijuana, and therefore comes within the controlled substance definition. Martinez maintains, however, that he was convicted only for transporting marijuana, not for importing it, so that the 1996 conviction does not count for purposes of the career criminal enhancement.

To resolve this dispute, we must determine, first, the scope of the "import" category of offenses in the controlled substance definition, and second, whether Martinez's 1996 California conviction comes within that definition.

A. The controlled substance offense definition: In determining whether a state conviction counts as a predicate for a career offender enhancement, a federal sentencing enhancement provision such as the career criminal guideline here at issue is interpreted according to a uniform, national definition, not dependent upon the vagaries of state law. See Taylor v. United States, 495 U.S. 575, 591-92 (1990). This single-definition approach rest centrally on the consideration that " `application of federal legislation is nationwide and at times the federal program would be impaired if state law were to control.' " Id. at 591, quoting United States v. Turley, 352 U.S. 407, 411 (1957).

In Taylor, for example, the issue was whether a state burglary conviction counted as a predicate offense under 18U.S.C. S 924(e), which provides for an enhanced sentence for felons convicted of possessing a firearm where their prior felony conviction was for, inter alia, "burglary. " To decide that question, the Court first had to arrive at a discrete federal definition of "burglary" under S 924(e), for only then could the Court determine whether the state conviction would constitute "burglary" under the federal statute. See id. at 592-99. Otherwise, "a person imprudent enough to shoplift or steal from an automobile in California would be found . . . to have committed a burglary . . . for enhancement purposes -yet a person who did so in Michigan might not." Taylor...