Lead Opinion
PER CURIAM Opinion; Concurrence by Judge GRABER; Dissent by Judge MILAN D. SMITH, JR.
We must decide whether a court may consider a clerk’s minute order when applying the modified categorical approach of Taylor v. United States,
Facts
Michael Snellenberger walked into a bank with a threatening note and walked out with a small sum of money. He was quickly arrested and eventually pleaded guilty to unarmed bank robbery. The district court calculated a Sentencing Guidеlines range of 151 to 188 months and sentenced Snellenberger to 151 months. On appeal, he challenges the calculation of the sentencing range.
Analysis
1. Snellenberger’s sentencing range was greatly elevated when the district court determined that he was a career offender. To qualify as a career offender, a defendant must be convicted of a crime of violence or a drug offensе after having previously committed two such crimes. U.S.S.G. § 4Bl.l(a). Snellenberger’s crime of conviction, bank robbery, is a crime of violence; one of his prior convictions, sale of methamphetamine, is a drug offense. Under dispute is his other prior: burglary in violation of California Penal Code § 459.
A “crime of violence,” as defined in U.S.S.G. § 4B1.2(a), includes (among other things) “burglary of a dwelling.” If Snel-lenberger’s prior conviction qualifies as burglary of a dwelling, it’s a crime of violence. There are two possible reasons why it might not qualify: First, California’s burglary statute is broader than the generic definition of burglary adopted by the Supreme Court as the benchmark in Taylor. Generic burglary is limited to entry into a “building or other structure,”
When the statute of conviction is broader than the generic definition, we can’t tell categorically whether the prior conviction qualifies as a strike. Rather, we must usе the so called modified categorical approach, which requires us to determine — if we can — whether the conduct for which the defendant was convicted fits within the federal definition of the offense. Id. at 602,
The Supreme Court in Shepard v. United States,
The district court relied on the state court clerk’s minute order. California Penal Code § 1207 provides that “[w]hen judgment upon a conviction is rendered, the clerk must enter the judgment in the minutes, stating briefly the offense for which the conviction was had.... A copy of the judgment of conviction shall be filed with the papers in the case.”
The minute order is a printed form bearing the name of thе court at the top, followed by the case caption. The body consists of numbered lines, each calling for some information to be inserted by checking a box or writing in a blank. Line 56 starts with a box through which an “X” has been drawn; it reads “Defendant personally withdraws plea of not guilty to count(s)_,” and “1” is written in the blank. Line 57 also starts with a box through which an “X” has been drawn, and indicates a plea of nolo contendеre to count 1.
Together, these lines establish that Snel-lenberger pleaded nolo contendere to count 1, which charged him with “en-terfing] an inhabited dwelling house and trailer coach and inhabited portion of a building occupied by Peter MacPherson, with the intent to commit larceny and any felony.” Because the three noun phrases are connected by “and” rather than “or,” the charging doсument and minute order, if consulted, establish that Snellenberger committed burglary of a dwelling.
Snellenberger challenges the district court’s reliance on the minute order, arguing that it isn’t among the documents listed by the Court in Shepard. But that list was illustrative; documents of equal reliability may also be considered. See Shepard,
Snellenberger also complains that the minute order is not something that is approved, or even seen, by the parties, so he shouldn’t be held responsible for its contents. It’s not clear from the record whether parties to a criminal case in California are given copies of the clerk’s minute order at the time it is placed in the case file, but there is certainly no suggestion that it’s a secret document. A defendant can always check the case file and ensure that any materials placed there accurately reflect the proceedings; presumably, doing so is part of every criminal defense lawyer’s professional obligation. In any event, by analogy to transcripts, it’s enough that the minute order was prepared by a neutral officer of the court, and that the defendant had the right to examine and challenge its content, whether or not he actually did. Having failed to challenge or correct the minute order in stаte court — perhaps because there wasn’t a basis for doing so — Snellenberger is now bound by what it says: He pleaded nolo contendere to the burglary of a dwelling, satisfying this aspect of the generic definition of the crime for purposes of U.S.S.G. § 4331.1(a).
We therefore hold that district courts may rely on clerk minute orders that conform to the essential procedures described above in applying the modified categorical approach. United States v. Diaz-Argueta,
2. In the district court, Snellen-berger unsuccessfully argued that, even if the minute order were considered, his conviction wasn’t a generic burglary within the meaning of Taylor. On appeal, he didn’t make that argument in his opening brief. See Def.’s Supp. Br. to Rh’g En Banc 4 & n.4 (Snellenberger “has not previously challenged the application of the career offender guideline to his case on the ... basis” “that California burglary is missing the element of unprivileged entry”). We therefore decline to reach the issue. See, e.g., United States v. Ankeny,
No special circumstances justify our raising the question sua sponte. The fact that Snellenberger made this argument in the district court demonstrates that the absence of the later-decided Navarro-Lopez v. Gonzales,
AFFIRMED.
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Concurrence Opinion
I join fully in the court’s opinion but write briefly to respond to the dissent, which asserts that we should reach the question whether Navarro-Lopez v. Gonzales,
Even if we were to consider this un-raised issue, we would have to do so using a “plain error” analysis. See United States v. Beng-Salazar,
As the opinion properly notes, Defendant Snellenberger pleaded nolo contende-re to “entering] an inhabited dwelling house and trailer coach and inhаbited portion of a building occupied by Peter Mac-Pherson, with the intent to commit larceny and any felony.” Majority op. at 701-02 (internal quotation marks omitted) (alteration in original). Whether or not that conduct counts as “generic burglary” under the peculiarities of California law, the act described “involves conduct that presents a serious potential risk of physical injury to another,” U.S.S.G. § 4B1.2(a)(2), to wit, MaсPherson. For that reason, we would still have to affirm Snellenberger’s conviction.
Dissenting Opinion
Though we rarely review arguments not raised in the opening brief, we acknowledge an exception to the waiver rule when there has been an intervening change in the law. See, e.g., Ball v. Rodgers,
We recently observed in Kawashima v. Mukasey that prior to Navarro-Lopez, we
applied the modified categorical approach in cases where the statute of conviction prohibits a broader range of conduct than the generic offense, regardless of whether the former lacks a particular element of the latter. See, e.g., United States v. Parker,5 F.3d 1322 (9th Cir.1993) (applying the modified categorical approach to determine whether a jury found the defendant guilty of generic burglary even though the statute under which the defendant was convicted did not require unlawful entry, a necessary element of thе generic definition); United States v. Alvarez,972 F.2d 1000 (9th Cir.1992) (per curiam) (same). In Navarro-Lopez, we did not explicitly overrule these precedents ... Nevertheless, Navarro-Lopez’s statement that the modified categorical approach never applies when “the crime of conviction is missing an element of the generic crime altogether,”503 F.3d at 1073 , is plain and clear. And, because such statement is irreconcilable with our precedents that have held otherwise, we must conclude that they have been impliedly overruled.
Nevertheless, since the panel has decided to reach the issue, I believe it important to clarify that the facts one may consider reliably established by a California minute order are limited by the minute order’s function, i.e., to record the statute of conviction and the сount in the information or indictment to which the defendant pleaded guilty or nolo contendere. By its nature, a minute order cannot be used to establish the underlying facts of the crime committed. Cf. United States v. Navidad-Marcos,
Because I would address Navarro-Lopez’s impact on this case, I would overrule United States v. Aguila-Montes De Oca,
“[t]he modified categorical approach ... only applies when the particular elements in the crime of conviction are broader than the generic crime. When the crime of conviction is missing an element of the generic crime altogether, we can never find that ‘a jury was actually required to find all the elements of the generic crime.”
Navarro-Lopez,
The generic definition for federal burglary requires an “unlawful or unprivileged entry.” Taylor v. United States,
California is one of the states where only “entry” is required. Under California law, one can commit residential burglary even if the entry into the home is consensual and not a trespass. People v. Frye,
1. A person entered a [building] [_]; and
2. At the time of the entry, that person had the specific intent to steal and take away someone else’s property, and intended to deprive the owner permanently of that property;
Id.
the generic, contemporary meaning of burglary contains at least the following elements: an unlawful or unprivileged entry into, or remaining in, a building or other structure, with intent to commit a crime.
Taylor,
an offense constitutes ‘burglary’ for purposes of ... sentence enhancement if either its statutory definition substantially corresponds to ‘generic’ burglary, or the charging paper and jury instructions actually
required the jury to find all the elements of generic burglary in order to convict the defendant.
Taylor,
Under the standard set out in Taylor, we cannot establish that a conviction for California burglary meets the requirements for a federal enhancement for “burglary of a dwelling.” Even where the information or indictment alleges that the defendant did “unlawfully enter,” as occurred in this case, no jury would ever be “actually required to And all the elements of generic burglary” in order to convict the defendant because the type of entry nеed not be proven and is simply unnecessary to the conviction. See Taylor,
Furthermore, given the peculiarities of California law, California’s burglary statute does not satisfy the residual clause as an offense that “otherwise involves conduct that presents a serious potential risk of physical injury to another.” U.S.S.G. § 4B1.2(a)(2). We continue to employ the categorical approach when analyzing the аpplicability of the residual clause. Because California burglary is similar to “burglary of a dwelling,” the relevant inquiry is whether the risk posed by California residential burglary is similar to that posed by federal burglary of a dwelling. See James v. United States,
In conducting this inquiry, we are not required to And that every conceivable California burglary would pose a serious potential risk of physical injury to another, but rather that, in the ordinary case, California burglary would satisfy the residual clause. Id. at 1597. “ ‘It requires a realistic probability, not a theoretical possibility, that the State would apply its statute to conduct that falls outside the generic definition of a crime.’ ” Id. (quoting Gonzales
California has created an entire class of burglaries that no longer fits the description of a “prototypically violent” crime. For example, a review of California burglary prosеcutions reveals that California courts have upheld burglary convictions for defendants who entered a home with consent and with the intent to sell fraudulent securities. See, e.g., People v. Cole,
Due to the broad interpretation of burglary аdopted by the California courts, it appears that the risk of injury to another comes not from the perpetrator’s uncon-sented entry, but from the victims’ reaction to the felony intended to be committed therein. The Supreme Court has identified the main risk of burglary as arising “from the possibility of a face-to-face confrontation between the burglar and a third party.” James,
In applying the residual clause to the specific conduct to which the defendant pleaded rather than the statutory elements of the state burglary offense, Judge Gra-ber’s concurrence improperly employs the modified categorical approach. Concurrеnce at 15006. Our Circuit has repeatedly “expressed doubt as to whether the modified categorical approach applies to the catchall clause” at all. United States v. Jennings,
The Ninth Circuit panel in Jennings concluded that “generally the modified categorical approach may be applied in determining whethеr a conviction qualifies as a violent felony under § 924(e)(2)(B)(ii)’s ‘otherwise’ clause (sometimes termed the catchall clause).”
Under Navarro-Lopez, we may not apply the modified categorical approach to
I sympathize with my colleagues who would like to find a way to fit convictions under California Penal Code § 459 into “burglary of a dwelling” or the residual clause. The peculiarities of California law, however, have left federal courts unable to use it as a predicate offense under USSG § 4B1.1. The goal of nationwide uniformity driving the Sentencing Guidelines is not well-served when we apply an enhancement for all burglaries in one state but none in California, our most populous state. But neither is it served when we apply an enhancement for conduct in California that would not trigger the enhancement in others. Navarro-Lopez and the Supreme Court’s insistence on a categorical analysis mandates that we reach the under-inclusive result.
For the foregoing reasons, I would apply our en banc rule in Navarro-Lopez and reverse the district court.
Notes
. Snellenberger did not argue at the district court level that the modified categorical approach never applies under the California Penal Code § 459; therefore, the correct standard of review is plain error. "[W]here the law at the time of triаl was settled and clearly contrary to the law at the time of appeal — it is enough that an error be 'plain' at the time of appellate consideration.” Johnson v. United States,
. I acknowledge that one could consider entry into a structure for the purpose of committing a crime to be ''unlawful” in a general sense, but that type of unlawfulness is explicitly distinguished from the “unlawful or unprivileged entry” included by the Supreme Court in Taylor as an element of generic burglary.