UNITED STATES of America, Plaintiff-Appellant, v. Giovanni RAMIREZ, Defendant-Appellee.
No. 02-50018.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted Feb. 3, 2003. Filed Oct. 24, 2003.
347 F.3d 792
C.R. McReynolds (argued), Charles T. Matthews, Pasadena, CA, for defendant-appellee.
Before FERGUSON, HALL, and BERZON, Circuit Judges.
Opinion by Judge FERGUSON; Partial Concurrence and Partial Dissent by Judge CYNTHIA HOLCOMB HALL.
OPINION
FERGUSON, Senior Circuit Judge.
This appeal presents the issue of whether a temporary detention ordered by the California Youth Authority Youth Offender Parole Board may be treated as either a prior sentence or a constructive parole revocation for the purpose of calculating criminal history points under the Sentencing Guidelines (“Guidelines“). Appellee Giovanni Ramirez pleaded guilty to a Class A felony with a statutory minimum sentence of 10 years. The District Court found that Ramirez‘s two prior temporary detentions, which were ordered by the Youth Offender Parole Board as a result of
We have jurisdiction pursuant to
I. BACKGROUND
On December 19, 2000, Ramirez pleaded guilty to distribution of 62.5 grams of methamphetamine, a Class A felony carrying a statutory minimum sentence of 10 years.
A. Ramirez‘s History with CYA
On September 27, 1989, at the age of seventeen and over ten years before the instant offense, Ramirez was found guilty of rape and four other counts and placed in the custody of CYA. Ramirez served a little less than four years of his fourteen year sentence and was paroled from CYA on July 29, 1993, over five years prior to the commission of the instant offense.
On June 21, 1996, Ramirez was issued a citation for speeding. Three days after the citation, he tested positive for marijuana use. As a result of these two occurrences, his parole officer prepared a Corrective Action Plan (CAP)1 which recommended that Ramirez receive 30 days of “temporary detention” at Los Angeles County Jail.2 On July 24, Ramirez signed the CAP and checked a box indicating that he admitted to the speeding and marijuana allegations, waived all rights to a fact-finding hearing, and accepted the recommended CAP. On August 2, 1996, the Youth Offender Parole Board (YOPB) concurred with the CAP and ordered the temporary detention. The YOPB order did not indicate that there had been either a probable cause or a violation determination. Ramirez was detained from July 24 through August 19, 1996.
On November 18, 1996, Ramirez was arrested for possession of a concealed weapon. He was subsequently detained pending a determination of whether the arrest constituted a violation of his parole. On November 20, 1996, Ramirez waived his right to a probable cause hearing, and on November 27, 1996, YOPB issued an order making a probable cause finding as
On April 11, 1997, the YOPB issued an order requiring that Ramirez continue to be detained pending a hearing on his alleged violation. The order stated that Ramirez “had several violations in 1996 and his commitment offense, recent parole performance, and this arrest necessitate a viol[ation]/ disposition hearing.” On May 1, 1997, Ramirez signed a form acknowledging that he had received notice of his rights regarding the parole hearing and waiving his right to a fact-finding hearing, witnesses, or the assistance of an attorney. He admitted the weapons possession allegation as described in the probation disposition report.
On May 13, 1997, based on Ramirez‘s admission, the YOPB found that there had been a parole violation. However, instead of revoking his parole, the YOPB ordered Ramirez to spend two weeks in temporary detention. The order specifically noted under “Reasons” for its disposition that Ramirez would “be better served by parole supervision.” Ramirez was released from temporary detention on May 27, 1997. It is undisputed by the parties that Ramirez‘s parole was never actually revoked under state law. On September 11, 1997, Ramirez was discharged from CYA parole.
B. Sentencing for the Instant Offense
The District Court conducted a total of eight sentencing hearings. In addition to their initial sentencing briefs, the parties submitted three sets of supplemental briefs, and the probation office submitted two addenda to the PSR. In addition, the District Court requested and heard testimony from both of Ramirez‘s CYA parole officers and from the YOPB member who had signed the two temporary detention orders.
On December 7, 2001, the District Court issued its sentencing decision.3 Specifically, the District Court found that (1) Ramirez‘s parole was not “revo[ked]” as that term is used in
II. STANDARD OF REVIEW
A district court‘s interpretation of the Sentencing Guidelines is reviewed de novo. See United States v. Veerapol, 312 F.3d 1128, 1131 (9th Cir.2002). Factual findings underlying a district court‘s sentencing determination are reviewed for clear error. See id. at 1131-32. “The government bears the burden of proving the fact of a prior conviction.” United States v. Sanders, 41 F.3d 480, 486 (9th Cir.1994). Whether “a prior adjudication falls within the scope of the Sentencing Guidelines” is a question of law that is reviewed de novo. Id. at 486; see also United States v. Latimer, 991 F.2d 1509, 1511 (9th Cir.1993).
III. DISCUSSION
The government contends that the District Court erred in finding that Ramirez
A. Temporary Detention as a Prior Sentence under U.S.S.G. § 4A1.1(c)
Under
The District Court determined, and Ramirez urges on appeal, that the proceedings underlying the temporary detentions were not “adjudications of guilt.” “When interpreting the sentencing guidelines, we have carefully distinguished between confinement resulting from an adjudication of guilt and confinement for other reasons.” United States v. Johnson, 205 F.3d 1197, 1200 (9th Cir.2000). “Absent proof that the [prior] court found [the defendant] guilty beyond a reasonable doubt, [an] adjudication may not be used to increase [the] criminal history score.” Sanders, 41 F.3d at 486.
In the instant case, the government has failed to show that either of the detentions resulted from a finding of guilt beyond a reasonable doubt. The regulation authorizing the YOPB to order a temporary detention requires only a preponderance showing.
The government asserts that because Ramirez admitted to the allegations in both cases, there is no need to show that there was a finding of guilt. However, the Guidelines specifically require that an “adjudication of guilt” result from a “guilty plea, trial, or plea of nolo contendere.”
B. Temporary Detention as a Constructive Revocation of Parole
The government alternatively asserts that the District Court erred because the temporary detentions should have been treated as constructive revocations of parole and aggregated with Ramirez‘s prior sentence. Specifically, the government argues that the term “revocation,” as used in
The Guidelines require that revocations of parole be considered in calculating a sentence so that “the original term of imprisonment [is added] to any term of imprisonment imposed upon revocation.”
In determining the meaning of “revocation” under the Guidelines, we must apply a uniform, federal definition, “not dependent upon the vagaries of state law.” See United States v. Martinez, 232 F.3d 728, 732 (9th Cir.2000) (citing Taylor v. United States, 495 U.S. 575, 591-92, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990)). Thus, to the extent the District Court relied exclusively on state law definitions of “revocation,” it erred. However, because we determine that under a federal definition of revocation, Ramirez‘s parole was not revoked in either instance, such error by the District Court was harmless.
1. Definition of Revocation Under § 4A1.2(k)
The purpose of creating a uniform federal definition of terms within the Guidelines is to effectuate consistent nationwide application of federal legislation. See Taylor, 495 U.S. at 591, 110 S.Ct. 2143 (quoting Dickerson v. New Banner Institute, Inc., 460 U.S. 103, 119-20, 103 S.Ct. 986, 74 L.Ed.2d 845 (1983)). In determining what the federal definition of a particular term is, courts look to the plain language and legislative history of the statute, as well as the use of the term in practice. See Taylor, 495 U.S. at 594-98, 110 S.Ct. 2143. As with all penal statutes, the rule of lenity requires that we construe ambig
In contrast to criminal offenses, the elements of which frequently vary from state to state, the definition of “revocation” is consistent from state to state. Like the terms “conviction” or “plea,” the term “revocation” describes a specific outcome of a process, the basic requirements of which have been clearly articulated by the Supreme Court. We look to these constitutional requirements to determine the outer boundaries for the federal definition of revocation before proceeding to consider the statutory text and contemporary understanding of the term.
a. Constitutional Requirements for Probation or Parole Revocation
Before a revocation of parole or probation can occur, the Constitution requires that there be (1) a formal finding that a probationer or parolee has committed a violation and (2) a determination that the violation was serious enough to warrant reimposing the probationer‘s or parolee‘s original sentence. See Morrissey v. Brewer, 408 U.S. 471, 479-80, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972) (setting out requirements for parole revocation); see also Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973) (extending requirements of Morrissey to probation revocation hearings). Because the consequences of the revocation process are serious, see Morrissey, 408 U.S. at 482, 92 S.Ct. 2593, the probationer or parolee must be afforded an opportunity to present evidence to suggest that his violation does not warrant revocation. See id. at 487-88, 92 S.Ct. 2593. In addition to a preliminary hearing to determine whether there was reasonable cause to believe that a probationer or parolee had violated the conditions of his probation or parole, a final revocation hearing must be held by the probation or parole authority, if so desired by the probationer or parolee, in order to determine whether revocation is actually warranted. See id. at 486-88, 92 S.Ct. 2593.
A violation alone does not automatically trigger a revocation. See id. at 479, 92 S.Ct. 2593. Probation or parole authorities generally have two options: modify or extend the conditions of supervision, or revoke. See, e.g.,
In sum, before a district court can conclude that there has been a revocation pursuant to
b. Ordinary Meaning & Legislative History
Keeping in mind the requirements of Morrissey, and following the two general principles that (1) “[c]ourts can and should ... adopt statutory interpretations, when feasible, that will avoid serious constitutional issues,” United States v. Hernandez, 322 F.3d 592, 602 (9th Cir.2003) (as amended), and (2) “penal statutes must be strictly construed,” Gasho v. United States, 39 F.3d 1420, 1432 n. 11 (9th Cir.1994) (citing United States v. Wiltberger, 5 Wheat. 76, 18 U.S. 76, 95, 5 L.Ed. 37 (1820)), we now turn to the language in the Guidelines discussing revocation.
The particular provision at issue here requires that “the original term of imprisonment [be added] to any term of imprisonment imposed upon revocation.”
This construction is consistent with the Guidelines’ own probation scheme, which gives sentencing courts discretion to “revoke ... or [ ] extend the term of probation or supervised release and/or modify the conditions of supervision.”
The rule of lenity favors such a narrow construction. We “will not interpret a federal criminal statute so as to increase the penalty that it places on an individual when such an interpretation can be based on no more than a guess as to what Congress intended.” Latimer, 991 F.2d at 1514 (quoting Bifulco v. United States, 447 U.S. 381, 387, 100 S.Ct. 2247, 65 L.Ed.2d 205 (1980)) (citation omitted). In this case, the government has presented no evidence that Congress intended any violation accompanied by a confinement sanction to be treated as a revocation for the purposes of
Finally, we note that this construction of
The government nevertheless argues that any term of confinement presumptively reflects an intent to annul the privilege of parole or probation, regardless of whether the parole or probation entity expresses such an intent in a formal determination. Essentially, the government is arguing that a narrow construction is “at odds with the generally accepted contemporary meaning” of revocation. Taylor, 495 U.S. at 596, 110 S.Ct. 2143 (citing Perrin, 444 U.S. at 49 n. 13, 100 S.Ct. 311). We agree that any uniform federal definition should comport with state and federal probation practice. Interpretation of the Guidelines “can be informed by how the states interpret and apply their own criminal laws.” United States v. Wood, 52 F.3d 272, 276 n. 4 (9th Cir.1995). We therefore turn to practice in order to address whether the government‘s suggested presumption is warranted.
c. State and Federal Practice
It is clear that, in practice, the imposition of a term of confinement during the ordinary course of parole or probation does not necessarily mean that a revocation has occurred. State statutes describe a wide array of intermediate sanctions
From this vast array of options, parole or probation officials choose the punishment that they believe will best address the needs of the individual parolee or probationer. A finding of a “technical” or lower-level violation typically results in the imposition of an intermediary sanction and not in actual revocation. See generally U.S. Probation Office, CENT. DIST. OF CAL. REVOCATION WORKBOOK (last revised 2003). Because their primary aim is to act as a warning to the parolee or probationer, modification procedures generally lack the formality or due process protections required by actual revocation; they are not
It is clear that a violation can result in a vast range of sanctions, including revocation, none of which are necessarily directly related to either the seriousness of the violation or the culpability of the parolee or probationer. Cf.
In short, both Morrissey and practice instruct that we should defer to the original parole or probation entity to determine whether or not revocation is an appropriate sanction for the violation. By engaging in ad-hoc determinations that violations are of a sufficiently serious nature to warrant revocation, or by interpreting a particular sanction as indicative of an intent to revoke, subsequent courts usurp the discretion of the parole or probation authority. Where the parole or probation authority followed the procedures required for revocation but explicitly chose not to initiate revocation, we cannot second-guess that determination any more than we could determine that a defendant who was punished as severely as they would have been for murder was “constructively” convicted of murder.
2. Other Circuits’ Treatment of § 4A1.2(k)
We recognize that our narrow construction of
As an initial matter, we note that only one of the other circuits considering the question has dealt specifically with the modification versus actual revocation distinction. See Glover, 154 F.3d at 1294-95. In the other two cases, the probationer was resentenced to probation after the period of incarceration, see Reed, 94 F.3d at 342-43; Glidden, 77 F.3d at 39. Thus the other decisions were more closely in accord with the commonly understood meaning of revocation. In addition, none of the other cases dealt with a statute such as the temporary detention statute in this case, which explicitly creates a diversionary disposition only applicable to juveniles. See generally,
More importantly, none of these cases consider, either explicitly or implicitly, the constitutional requirements for revocation set out in Morrissey. Nor did any of the courts have the benefit of the usual definition of revocation articulated by the Supreme Court in Johnson v. United States.10 The only rationale provided for their holdings is the general commentary introducing the Criminal History chapter of the Guidelines. See Glover, 154 F.3d at 1294; Glidden, 77 F.3d at 40. As discussed above, we believe that the availability of
To the extent they are inconsistent with this opinion, we find the decisions in the other circuits treating any violation followed by confinement as a revocation of parole under
3. Ramirez‘s Parole Was Not Revoked Under Federal Law
In the instant case, neither temporary detention can be equated with a revocation of parole that could be aggregated with Ramirez‘s juvenile sentence under
With regard to the first violation, there has been no showing that the requirements of Morrissey were met. See Johnson, 205 F.3d at 1199-1200 (finding record insufficient to uphold finding of revocation where probationer was detained three times and no revocation hearing was ever held). There was neither a probable cause hearing nor a violation finding.11
With regard to the second temporary detention, the parole authority neither made a finding of revocation nor returned Ramirez to parole subsequent to his detention. In fact, the YOPB explicitly found that no revocation was necessary and stated that Ramirez would be better served by remaining under the supervision of parole officials. The temporary detention is thus more accurately viewed as a modification of the terms of Ramirez‘s parole, as opposed to a revocation. In light of the usual meaning of the term revocation, and state and federal practice, we hold that the second temporary detention does not fall within the scope of
In sum, we find that Ramirez‘s parole was never actually revoked, nor can his time in temporary detention be equated with imprisonment, as he remained under parole supervision. We therefore hold that the District Court did not err in determining that neither of the two temporary detentions ordered by YOPB consti
IV. CONCLUSION
For the reasons discussed above, we hold that the District Court did not err in determining that neither of the two temporary detentions ordered by YOPB constituted either a prior sentence under
The judgment of the District Court is AFFIRMED.
CYNTHIA HOLCOMB HALL, Circuit Judge, concurring in part and dissenting in part.
I join the court‘s opinion with the exception of Part III(B). I respectfully dissent from the majority‘s conclusion that Ramirez‘s parole for his 1989 rape conviction was not “revoked,” as that term is understood in
The majority correctly states that the purpose of creating a uniform federal definition of terms within the Guidelines is to effectuate consistent nationwide application of federal legislation. Taylor v. United States, 495 U.S. 575, 591, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). I agree with the majority‘s implicit proposition that this purpose should not necessarily deter us from defining a statute in a manner that conflicts with our sister circuits. When we do depart from our sister circuits and create our own definition of a federal statute, we should, at least, ensure that similarly situated criminal defendants in our own circuit are treated consistently. I fear that the majority‘s almost complete reliance on state law will result in the opposite.
As the majority itself notes, the “inherently flexible and discretionary nature of the different state systems, which aim to consider the totality of the parolee‘s history as well as the gravity of the violation, leads to discrepancies in the type of sanctions handed down for even the same minor violations.” Maj. Op. at 804 (emphasis added). Yet, under the majority‘s definition, our court must defer completely to the individual states in our circuit in determining when parole will be revoked. Thus, two criminal defendants in our Circuit who have committed the exact same criminal conduct while on parole and have received the exact same term of confinement for a violation can and will be treated differently under the majority‘s definition. Such an approach is inconsistent with the general purposes of the Sentencing Guidelines. See, e.g.,
The approach is also contrary to Supreme Court precedent. In Taylor v. United States, the Court considered the meaning of the term “burglary” under a federal sentencing enhancement similar to the one here. 495 U.S. at 580, 110 S.Ct. 2143. The Eighth Circuit had held that “burglary ... means ‘burglary’ however a state chooses to define it.” Id. The Supreme Court unanimously rejected this approach, stating that “[i]t seems to us to be implausible that Congress intended the meaning of ‘burglary’ for purposes of [the sentencing enhancement at issue] to depend on the definition adopted by the State of conviction.” Id. at 590, 110 S.Ct. 2143. The Court then went on to hold that a uniform federal definition of burglary was necessary in order to advance the interests of the sentencing enhancement. Id. at 595-96, 110 S.Ct. 2143. Like the majority here, the petitioner in Taylor argued that the rule of lenity required the Court to define the term “burglary” according to state law. The Court rejected this argument. “This maxim of statutory construction, however, cannot dictate an implausible interpretation of a statute.” Id. at 596, 110 S.Ct. 2143. See also United States v. Turley, 352 U.S. 407, 411, 77 S.Ct. 397, 1 L.Ed.2d 430 (1957) (“[I]n the absence of a plain indication of an intent to incorporate diverse state laws into a federal criminal statute, the meaning of the federal statute should not be dependent on state law“).
The majority justifies its decision by stating that it does not want to “usurp the discretion of the probation entity.” But I do not see how defining the term “revocation” differently from the state will usurp the discretion of a probation or parole entity. A federal court‘s determination that a parole violation is a “parole revocation” under the Sentencing Guidelines certainly does not change the defendant‘s parole status under state law. Moreover, state parole officers advance the interests of the individual states when deciding whether to formally revoke parole. The interests the federal guidelines seek to advance are not necessarily considered in a state officer‘s decision.
I also do not believe that the majority‘s definition advances the purposes and policies of chapter 4 of the Guidelines. Those purposes and policies are expressly laid out in the introduction to the chapter:
A defendant with a record of prior criminal behavior is more culpable than a first offender and thus deserving of greater punishment. General deterrence of criminal conduct dictates that a clear message be sent to society that repeated criminal behavior will aggravate the need for punishment with each recurrence. To protect the public from further crimes of the particular defendant, the likelihood of recidivism and future criminal behavior must be considered.... The specific factors included in
§ 4A1.1 and§ 4A1.3 are consistent with the extant empirical research assessing correlates of recidivism and patterns of career criminal behavior.
Introductory Comments to Chapter 4 of U.S.S.G. It is with these considerations in mind that we must go about interpreting the meaning of the term “revocation of probation, parole, supervised release, special parole or mandatory release.” USSG
The definition of parole revocation of the other circuits and the one that I would adopt requires two conditions be met— 1) a formal finding of violation; and 2) a
Defining “parole revocation” as a formal finding of a parole violation plus a return to a term of imprisonment serves these purposes. When the state has formally found that the defendant has violated the terms of his or her parole and has furthermore deemed that violation serious enough to return the defendant to imprisonment, this demonstrates that the defendant has engaged in behavior that chapter 4 of the guidelines specifically seeks to take into account. Moreover, this definition of parole revocation is straightforward, simple to apply, and treats similarly situated defendants the same. Also, such a definition is, in my opinion, entirely consistent with the plain and intended meaning of the term parole revocation. “The essence of parole is release from prison.” 59 Am. Jur.2d Pardon and Parole § 6 (1987). Notwithstanding the technical status of the person under state law, when a person has been returned to prison, that person is not commonly understood to still be “on parole.”
The majority‘s reliance on Supreme Court cases dealing with the requirements that must be met under the Due Process Clause before probation or parole may be revoked are simply inapposite. The issue dealt with in those cases is not involved in this case. Ramirez does not argue that a finding that his parole was revoked, for purposes of the Federal Sentencing Guidelines would, in any way, deprive him of his federal due process rights.2 Nor does Ramirez argue that he was not accorded due process in his parole violation proceedings.3
The government points to two incidents that qualify as parole revocations. If either incident does so qualify, then we must reverse because the district court could not have applied the safety valve departure. It is my opinion that the first incident does not qualify as a revocation but the second one does.
The first incident involved Ramirez‘s speeding ticket and positive test for mari-
The second incident involved Ramirez‘s being caught with a knife. Here, there is no doubt that there was an express finding of violation. Rather than coming from a CAP, here the allegations came from an allegation form that Ramirez had to answer. The board expressly found probable cause and ordered a hearing where Ramirez had a right to an attorney and a right to call witnesses in his favor. No hearing was held because Ramirez waived his right to such a hearing.4 The board then formally determined that Ramirez violated his parole. The board ordered Ramirez to serve forty-five days in a juvenile confinement facility, similar to the one where Ramirez served four years of his fourteen year sentence pursuant to his rape conviction. The second incident therefore was a revocation of his parole—there was a formal finding of violation and a punishment of imprisonment for this violation.5
Since Ramirez‘s parole was revoked, as those terms are understood in the Sentencing Guidelines, I would vacate Ra-mirez‘s sentence and remand for resentencing.
I respectfully dissent.