USA v. Romero-Rendon

• Decision Date: 30 September 1999
• Docket Number: No. 99-50137,ROMERO-RENDON,99-50137
• Citation: 220 F.3d 1159
• Parties: (9th Cir. 2000) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. VICTOR, aka Pedro Macias, Defendant-Appellant. Office of the Circuit Executive
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1159

220 F.3d 1159 (9th Cir. 2000)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. VICTOR ROMERO-RENDON, aka Pedro Macias, Defendant-Appellant.

No. 99-50137

Office of the Circuit Executive

U.S. Court of Appeals for the Ninth Circuit

Argued and Submitted September 30, 1999--Pasadena, California

Opinion Filed December 7, 1999

Opinion Withdrawn July 31, 2000

Filed July 31, 2000

Joseph J. Burghardt, Federal Defenders, San Diego, California, for the defendant-appellant.

Roger W. Haines, Jr., Assistant United States Attorney, San Diego, California, for the plaintiff-appellee.

Appeal from the United States District Court for the Southern District of California, Leland C. Nielsen, Senior District Judge, Presiding; D.C. No. CR-98-02476-N

Before: Diarmuid F. O'Scannlain, Ferdinand F. Fernandez, and Thomas G. Nelson, Circuit Judges.

ORDER

The opinion filed December 7, 1999 and reported at 198 F.3d 745 is withdrawn. The attached opinion is filed simultaneously with this order.

With these changes, the panel has unanimously voted to deny the petition for rehearing and to deny the petition for rehearing en banc. The full court has been advised of the petition for rehearing en banc and no active judge has requested a vote on whether to rehear the matter en banc. Fed. R. App. P. 35.

The petition for rehearing and the petition for rehearing en banc are DENIED.

Appellant's request to file further briefing is DENIED.

OPINION

O'SCANNLAIN, Circuit Judge:

We must decide whether the district court abuses its discretion when it enhances a sentence based on the information contained in a Presentence Report the accuracy of which has not been challenged.

I

The U.S. Border Patrol apprehended Victor RomeroRendon as he attempted to enter the United States illegally on April 28, 1998. Computer checks revealed that he had been previously apprehended and deported by the Immigration and Naturalization Service (INS). The checks also uncovered that he had a criminal history in the United States. RomeroRendon was indicted, and on August 31, 1998 pleaded guilty to one count of being a deported alien found in the United States, in violation of 8 U.S.C. S 1326.

The probation officer prepared the Presentence Report ("PSR"), in which he recommended that the district court find that Romero-Rendon's base offense level be eight and that he have a Criminal History Category of II. The PSR also contained a recommendation that the base offense level be increased sixteen levels pursuant to U.S.S.G. S 2L1.2(b) (1)(A), which provides for such upward adjustment where the defendant-alien has been previously deported following a conviction for an aggravated felony, i.e., "a crime of violence (as defined in section 16 of Title 18 . . .) for which the term of imprisonment [is] at least one year." See 8 U.S.C. S 1101(a)(43)(F). In turn, 18 U.S.C. S 16(a) defines "crime of violence" to mean "an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another." Id. The PSR revealed that on March 31, 1992, Romero-Rendon pleaded guilty to assault with a firearm, a violation of California Penal Code S 245(a)(2), and received a five-year sentence. Hence the recommendation that a sixteen-level upward adjustment be made to his base offense level.

Romero-Rendon objected both prior to and at sentencing. He contended that in order to establish the previous conviction, the government must provide the sentencing judge with judgment or commitment documents from the previous conviction, his "rap sheet," or deportation documents. In its response to the objections, the government did not provide any of the requested documentation. Thus Romero-Rendon argued that the PSR alone was insufficient evidence to prove that he had been convicted of an aggravated felony. At no time did Romero-Rendon allege that the PSR contained any inaccuracies, nor did he contend that the judge incorrectly characterized his previous offense as an aggravated felony. At sentencing, the district court judge rejected the objections and, relying on the PSR, found that Romero-Rendon had previously committed an aggravated felony, and enhanced his base offense level by sixteen levels.

Romero-Rendon filed this timely appeal.

II

As an initial matter, we must examine the appropriate evidentiary standard for establishing the conduct underlying this sentence enhancement. In most cases, the government bears the burden of proving factors enhancing a sentence by a preponderance of the evidence. See United States v. Torres, 81 F.3d 900, 903 (9th Cir. 1996). " `[W]hen a sentencing factor has an extremely disproportionate effect on the sentence relative to the offense of conviction,' [however, ] the government may have to satisfy a `clear and convincing' standard." United States v. Hopper, 177 F.3d 824, 833 (9th Cir. 1999) (quoting United States v. Restrepo, 946 F.2d 654, 659 (9th Cir. 1991) (en banc)), cert. denied, McKendrick v. United States, _______ U.S. _______, 120 S. Ct. 1179 (2000).

Romero-Rendon argues that given the severity of the consequences of the enhancement in his case, the government should be required to prove the underlying offense by clear and convincing evidence, which it cannot do based only on the PSR. To support his argument for a heightened evidentiary standard in his case, Romero-Rendon relies primarily on Almendarez-Torres v. United States, 118 S.Ct. 1219 (1998), and Hopper. In Almendarez-Torres, the Supreme Court rejected the argument that a previous aggravated felony is an element of the offense of being in the United States after having been deported following an aggravated felony. See id. at 1222. Instead, the Court held that the previous aggravated felony, which increases the maximum penalty from two to twenty years, is a sentence enhancement. See id. As such, the government need not charge it in the indictment and thus need not prove its existence beyond a reasonable doubt. See id. The Court, however, explicitly left undecided "whether some heightened standard of proof might apply to sentencing determinations which bear significantly on the severity of sentence." Id. at 1233.

Building on this opening left by the Supreme Court and relying on Hopper, Romero-Rendon argues that the district court should have used a "clear and convincing " standard of evidence. In Hopper, we considered the issue of sentence enhancements for violent conduct in conjunction with the defendants' conviction for conspiracy to obstruct the IRS. 177 F.3d at 829. Applying Restrepo's "extremely disproportionate impact test," we concluded that the district judge should have required the government to prove the facts underlying the enhancement by clear and convincing evidence where the seven-level enhancement increased the median point of the defendant's sentencing range by 43 months from 24-30 months to 63-78 months. See id. at 833. Romero-Rendon's sixteen-level enhancement increased the median of his sentencing range 39 months from 4-10 months to 41-51 months. He argues that the closeness between the severity of these enhancements indicates that the correct standard of proof in this case is clear and convincing evidence.

There is some uncertainty in this circuit as to when the higher burden of proof applies. In Hopper, we held that an enhancement that raises the median of the sentencing range by nearly three times triggers the higher standard of proof. In United States v. Sanchez, 967 F.2d 1383, 1386-87 (9th Cir. 1992), we held that an enhancement that raises the median of the sentencing range by nearly six times does not trigger the clear and convincing standard. In United States v. HarrisonPhilpot, 978 F.2d 1520, 1523-24 (9th Cir. 1992), we held that an enhancement that raises the median sentencing range by more than seven times does not require a higher standard of proof. These cases appear to conflict. Even if the distinction lay in the difference between sentence enhancements based on the quantity of drugs involved in an offense (Sanchez and Harrison-Philpot) and enhancements based on uncharged criminal conduct (Hopper), it is unclear which line of cases would apply here, where the enhancement was based on previous criminal conduct of which Romero-Rendon was convicted. We need not, however, resolve this potential conflict because it would not alter the outcome of this case.

III

We have previously held that a district court may rely on an unchallenged PSR at sentencing to find by a preponderance of the evidence that the facts underlying a sentence enhancement have been established. See United States v. Marin-Cuevas, 147 F.3d 889, 895 (9th Cir. 1998). The Sentencing Guidelines allow judges to rely at sentencing on "any information . . . so long as it has sufficient indicia of reliability to support its probable accuracy." Id. at 894-95 (quotations omitted). As we wrote in Marin-Cuevas,

In this case, the only evidence presented by either side was the presentence report. As the district court explained, Marin-Cuevas has never denied he was convicted of those misdemeanors. He has argued only that the government failed to provide sufficient evidence. Because the only evidence before the sen tencing court was the Presentence Report, the pre ponderance of the evidence sustains the district court's finding.

Id. at 895.

In his effort to elude the grasp of Marin-Cuevas , RomeroRendon argues (1) that in contrast to the sentencing court in Marin-Cuevas, the court here needed to know the specific statute of conviction in order to determine whether the offense met the definition of an aggravated felony; and (2) that the consequence of relying on the PSR in this case was more serious since it increased the maximum penalty from two to twenty years.¹ Neither argument withstands scrutiny.²

Romero-Rendon argues that the PSR provides an insufficient basis for the sentence enhancement in this case because the district court must know...