UNITED STATES of America, Plaintiff-Appellee, v. Arvin ESPINOZA-MORALES, Defendant-Appellant.
No. 09-50267.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted May 4, 2010. Filed Sept. 10, 2010.
621 F.3d 1141
Before: BETTY B. FLETCHER and RICHARD A. PAEZ, Circuit Judges, and DONALD E. WALTER, District Judge.*
Opinion by Judge PAEZ; Dissent by Judge WALTER.
OPINION
PAEZ, Circuit Judge:
Arvin Espinoza-Morales appeals the 57-month sentence imposed following his guilty plea to attempted reentry following deportation in violation of
I. FACTUAL BACKGROUND
In March 2008, Espinoza, a citizen of Nicaragua, pleaded guilty to one count of attempted reentry after deportation in violation of
Espinoza timely appealed. On appeal, Espinoza contends that his prior state convictions do not constitute crimes of violence under either the categorical or modified categorical approach and that his sentence violates his Fifth and Sixth Amendment rights because it was based on judicial factfinding that he had previously been convicted of a crime of violence.2
II. STANDARD OF REVIEW
We review de novo whether a prior conviction constitutes a crime of violence under
III. DISCUSSION
To determine whether Espinoza‘s prior convictions qualify as “crimes of violence” under
On appeal, the government concedes that Espinoza‘s convictions under
An offense qualifies as a “crime of violence” under
1. Sexual Battery under California Penal Code section 243.4(a)
At the time of Espinoza‘s conviction,
a. Element Prong
We recognized in Lopez-Montanez that, “although [
In Lopez-Montanez, we also held that only offenses involving the use of physical force could constitute “forcible sex offenses” under the enumerated offense prong, and that sexual battery under
We need not decide here whether this amendment abrogates Lopez-Montanez‘s holding, however, because it cannot affect the calculation of Espinoza‘s sentence. Although a sentencing court must generally apply the Guidelines in effect at the time of sentencing, the Ex Post Facto Clause requires a court to apply instead the Guidelines in effect at the time of the current offense “if the guidelines have undergone substantive changes that would disadvantage the defendant.” United States v. Stevens, 462 F.3d 1169, 1170 (9th Cir.2006). A change that would overrule an existing precedent constitutes such a “substantive” change. See United States v. Smallwood, 35 F.3d 414, 417 n. 8 (9th Cir.1994) (citing, among others, United States v. Saucedo, 950 F.2d 1508 (10th Cir.1991)). Thus, if the 2008 amendment to
2. Penetration with a Foreign Object under California Penal Code section 289(a)(1)
At the time of Espinoza‘s conviction,
Every person who causes the penetration, however slight, of the genital or anal openings of any person or causes another person to so penetrate the defendant‘s or another person‘s genital or anal openings for the purpose of sexual arousal, gratification, or abuse by any foreign object, substance, instrument, or device, or by any unknown object when the act is accomplished against the victim‘s will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person shall be punished by
imprisonment in the state prison for three, six, or eight years.
a. Element Prong
We have made clear that the force required under the element prong of the
Rather,
Indeed, the state has repeatedly applied
These cases conclusively establish that
b. Enumerated Offense Prong
For similar reasons, we also conclude that
B. Modified Categorical Approach
Because we conclude that neither of Espinoza‘s convictions categorically qualifies as a crime of violence, we must next determine whether either of his convictions constitutes a crime of violence under the modified categorical approach.9
1. Criminal Information and Abstract of Judgment
The criminal information and abstract of judgment, taken together, do not establish that Espinoza was “necessarily” convicted of using force that would render his convictions crimes of violence.
In the
In the
2. State Appellate Court Opinion
The unpublished state appellate court opinion affirming Espinoza‘s convictions and summarizing the facts underlying those convictions likewise does not establish that the jury “necessarily” convicted him of conduct that would amount to a crime of violence. Indeed, the state court opinion does not even purport to describe the facts or elements that the jury “necessarily” found. The opinion examines whether Espinoza was denied his right under the Vienna Convention to consult with consular representatives after his arrest. The facts of Espinoza‘s crime were not relevant to this question, and the state court presented them only as background. The opinion nowhere states or even suggests that the jury necessarily found the facts recited to be true.13 The state court opinion therefore clearly does not satisfy Taylor‘s requirement that a document must reflect what “the jury necessarily had to find” in order to establish that an offense constituted a crime of violence under the modified categorical approach. Because the state court opinion does not satisfy this requirement, we need not consider whether such an opinion, if it did
The dissent suggests that Taylor permits us to look to the facts underlying a conviction so long as we do not “put the Defendant on trial” for his earlier convictions, re-weigh the evidence, or make witness credibility determinations. Dissent at 1154. This misapprehends Taylor. To be sure, the Court in Taylor expressed concern that inquiring into the facts underlying a defendant‘s prior conviction could result in such re-trials and accordingly would pose “practical difficulties and potential unfairness.” See Taylor, 495 U.S. at 601. In particular, the Taylor Court noted that a court often would have to look to “the Government‘s actual proof at trial” to determine the defendant‘s actual conduct in the prior case. Id. This would lead to many tricky questions, as the Court explained:
Would the Government be permitted to introduce the trial transcript before the sentencing court, or if no transcript is available, present the testimony of witnesses? Could the defense present witnesses of its own and argue that the jury might have returned a guilty verdict on some theory that did not require a finding that the defendant committed [the generic crime14]? If the sentencing court were to conclude, from its own review of the record, that the defendant actually committed [the generic crime], could the defendant challenge this conclusion as abridging his right to a jury trial?
Id. Contrary to the dissent‘s suggestion, the Court did not avoid these “daunting” problems by simply barring mini-trials at which evidence would be re-weighed and witnesses‘s credibility re-evaluated. Id. Rather, to avoid these types of problems, the Court expressly held that a trial court applying the modified categorical approach must generally “look only to the fact of conviction and the statutory definition of the prior offense.” Id. at 602.
The Court did, however, allow for a very limited inquiry into the underlying facts. Specifically, the Court authorized trial courts to look “beyond the mere fact of conviction in a narrow range of cases where a jury was actually required to find all the elements of [the generic crime].” Id. For example, a court could conclude that a conviction was for the generic crime where “the indictment or information and jury instructions show that the defendant was charged only with [the generic crime], and that the jury necessarily had to find [the generic element] to convict.” Id. In other words, a conviction would qualify as a conviction for the generic crime under the modified categorical approach only if the court could ascertain, without looking to the underlying facts, that the jury necessarily found that the defendant engaged in conduct amounting to the generic crime.
Because a jury cannot convict a defendant of conduct not charged in the indictment or information, we know that a jury “necessarily” convicted a defendant of the generic crime where the indictment or information charges only the generic crime. Similarly, where the jury instructions require the jury to find the elements of the generic crime, we know that the jury “nec-
Because neither the state court opinion nor the criminal information and abstract of judgment establish that the jury necessarily convicted Espinoza of using force, the government has not met its burden to establish that either of Espinoza‘s convictions qualify as a crime of violence under the modified categorical approach. The district court accordingly erred in applying the 16-level crime of violence enhancement under
C. Scope of Remand
The parties dispute whether we should allow the district court to consider new evidence on remand. As a general rule, when the district court errs in sentencing, we should vacate and “remand for re-sentencing on an open record—that is, without limitation on the evidence that the district court may consider.” United States v. Matthews, 278 F.3d 880, 885 (9th Cir.2002) (en banc). We may depart from this general rule, however, when “additional evidence would not [change] the outcome” or when “there was a failure of proof after a full inquiry into the factual question at issue.” Id. at 886. This case falls within the second exception: the government submitted evidence to establish that Espinoza‘s convictions constituted crimes of violence under the modified categorical approach, but it failed to submit evidence sufficient to meet its burden. In light of this failure, we decline to give the government a second bite at the apple. Further, because the universe of documents that the sentencing court may consider is limited, and because the government has not identified—at oral argument or in its post-argument response to Espinoza‘s motion for judicial notice of the jury instructions—any additional materials it might be able to offer at re-sentencing, we remand for re-sentencing on the existing record.
IV. CONCLUSION
Neither of Espinoza‘s convictions categorically qualifies as a crime of violence under
VACATED AND REMANDED.
WALTER, District Judge, dissenting:
After a thorough review of the facts and the law pertaining to this case, I respectfully dissent.
The unpublished opinion of the Court of Appeal, Fourth District for the State of California recounts the background facts
On June 18, 1998, Jane Doe was walking from a train station in Ontario to pick up her son at his baby-sitter‘s house. Defendant came from behind, put his arm around her neck and placed her in a headlock. Jane Doe did not know defendant and had never seen him before.
Defendant tried to kiss Jane Doe on the lips, but she turned her face away. He pulled her face toward him and kissed her on the face and neck and sucked on her neck. Defendant then touched Jane Doe‘s breast and moved his hand down Jane Doe‘s shorts. He rubbed his hand on her vagina and put at least one finger inside of it. He continued to keep his other arm around her neck and tightened his grip. During this ordeal, Jane Doe kept telling defendant “no,” and that she had to leave.
Jane Doe unsuccessfully tried to use her elbow to escape defendant‘s hold on her. When she tried a second time, defendant let go.
Subsequently the Defendant was apprehended and convicted by a jury. He received an 8 year sentence. After being released, he was deported.
In January 2009, the Defendant plead guilty to attempted reentry following deportation in violation of
The main bone of contention here obviously is whether the Defendant‘s prior felony sex offense conviction is or is not a crime of violence justifying a 16-level upward adjustment under the guidelines. It appears to the Court that it is whether you look at [it] under [a] categorical or modified categorical approach as set forth in U.S. v. Taylor ... It seems clearly in the definitions of, in the guidelines, what we have is a crime of violence.
He was sentenced to 57 months. The Defendant appeals the 16-level increase the District Court imposed on his sentence as a result of the Court‘s finding that the Defendant had previously been convicted of a “crime of violence.” The Defendant‘s attorney did not dispute, at sentencing nor in her sentencing memorandum, the facts as set out by the state appellate court in 1999.
As the majority finds, the modified categorical approach states that a conviction constitutes a crime of violence “only if the record of conviction shows the jury ‘necessarily’ found all of the generic elements, or the defendant ‘necessarily’ admitted all of the generic elements in a plea.” Sandoval-Lua v. Gonzales, 499 F.3d 1121, 1131 (9th Cir.2007) (citing Taylor v. United States, 495 U.S. 575, 599-602 (1990), and Shepard v. United States, 544 U.S. 13, 19-21 (2005)).
When the Supreme Court created the modified categorical approach in Taylor, the Court issued an admonition to sentencing judges regarding the “practical difficulties and potential unfairness of a factual approach” to determining sentencing enhancements for prior convictions. 495 U.S. at 601. The Court rightly worried that sentencing courts might be looking at convictions from years or even decades prior with scant record in order to determine if prior convictions qualified for sentencing enhancements. This, in the Court‘s opinion, could lead to a whole new “mini-trial” by the sentencing judge thus implicating the defendant‘s
The question presented here is whether or not the District Court could rely on the facts as elucidated by the State Appellate court. Recently, this Court in an en banc decision expanded the materials that a sentencing court could rely on in determining a sentence enhancement. United States v. Strickland, 601 F.3d 963 (9th Cir.2010) (en banc). The Court held that a district court could rely on an out of state docket sheet in determining if the prior conviction was a predicate offense for sentencing purposes. Id. at 968.
Here, I believe that the unpublished State Court Appellate opinion satisfies the requirement of reliability. First, it was prepared by the court itself. Secondly, as stated unequivocally in oral arguments, appellate judges plainly have a legal and professional obligation to get the facts right. Finally, the Defendant had the right to examine and challenge the opinion‘s content. Here, the Defendant could have challenged the State Appellate Court‘s factual findings after publication if he disagreed with the court‘s factual characterization. He did not do so. Accordingly, the State Appellate Court opinion is reliable pursuant to Strickland and United States v. Snellenberger, 548 F.3d 699, 701 (9th Cir.2008)(en banc).
When, as here, a defendant puts the victim in a headlock and choked her before fondling her breasts and penetrating her with a foreign object, I am left with no doubt that he used violent physical force to achieve his objective. Defendant has never attempted to recast or recharacterize the facts of his 1999 conviction.
Given these facts, the District Judge correctly found the Defendant‘s 1999 convictions were “crimes of violence” as contemplated by the United States Sentencing Guidelines.
What the court below knew from the record in this case, beyond doubt, is that the Defendant committed a “forcible sex offense” which is an enumerated “crime of violence.” As this Court, en banc, stated in its closing in Strickland, “[t]he modified categorical approach is not a judicial version of three-card monte. Rather, the challenge is to determine whether a conviction under a non-categorical state statute was clearly based on facts that meet the federal generic definition of the crime.” 601 F.3d at 970. (emphasis added).
As such, I would AFFIRM the sentence of the District Court.