In an illegal reentry case, the Ninth (says) it doesn't get to the issue of a district court surfing for its own facts at sentencing. See United States v. Reina-Rodriguez, __ F.3d __, 06 Cal. Daily Op. Serv. 18573 (9th Cir. Nov. 15, 2006), opinion available here. A disappointing case that holds conceded ambiguity in a prior conviction against the defendant.
Players: Hard-fought appeal by Az. AFPDs Christopher Kilburn and Brian Rademacher.
Facts: Reina-Rodriguez pleaded open to illegal reentry. Id. at 18577. At sentencing the court had an “amended” information that read “AGGRAVATED [stricken] BURGLARY, a first [stricken] 2nd degree felony . . .” (strike-out and addition of "2nd" in original). Id. The J&C stated that the plea was to Burglary (amended)–2nd degree felony.” Id. The judge imposed the sixteen level enhancement for a crime of violence, and went on to refuse the request for a sentence akin to the “fast track” offers. Id. at 18579.
Issue(s): 1. Reina-Rodriguez “argues that application of a sixteen-level enhancement . . . for his prior conviction in Utah was erroneous.”
2. “He also argues that the district court’s sentence was unreasonable because it improperly considered, as a factor, that he did not plead guilty pursuant to a plea agreement.” Id. at 18577.
Held: 1. “We cannot say based on the fact of conviction and the statutory definition of a Utah felony burglary in the second degree that Reina-Rodriguez’s prior conviction was categorically a ‘crime of violence’ . . . .” Id. at 18583-84. But, “under the modified categorical approach, we find that Reina-Rodriguez’s prior conviction in Utah for felony burglary in the second degree resulted from a burglary of a dwelling. We further find that burglary of a dwelling under Utah law categorically fits the Guidelines’ definition of ‘burglary of a dwelling.’ Accordingly, the district court did not err . . . .” Id. at 18591.
2. “That the district court considered Reina-Rodriguez did not plead guilty pursuant to a plea agreement did not render his sentence unreasonable. The district court simply noted that the sentence would have been lower ‘had [Reina-Rodriguez] taken a plea agreement . . . for uniformity purposes.” Id. at 18593.
Of Note: The panel concedes that “Arguably, it is not entirely clear whether Reina-Rodriguez’s conviction resulted from an attempted aggravated burglary or a burglary of a dwelling.” Id. at 18585. (The former would have given him a shot of avoiding the agg felony). Given that ambiguity, the panel’s rationalization of what really happened when the information was amended is not persuasive. See id. Without facts in support, the panel hypothesizes that if the defendant had really pleaded to attempted agg burg, “attempt” would have been in the charging document. Id.
Here’s the back story: at sentencing, the district court sua sponte donned its Sherlock Holmes cap and did a public records check of the address involved, concluding that it was “in fact, a single resident building.” Id. & n.8. Don’t worry, though – the panel assures us that this didn’t affect its analysis . . . . Id.
God save us from district courts with internet access . . . .
How to Use: Creative Arizona counsel complained that Reina-Rodriguez should have got the fast track break because he pleaded guilty. The panel disagreed: it was not Booker “unreasonable” to not give a lower fast track sentence without a plea agreement. The panel was, however, notably restrained – it did not prohibit that reduction. Id. at 18593-94.
Fast track often presents this dilemma: should an alien sacrifice a sure four levels off, for a shot at beating the sixteen offense level enhancement? Seems a fair sentence should split the baby: shave two extra levels off for the early and painless plea, and deny the extra two levels because a “true” fast track defendant waives all appellate rights.
For Further Reading: Do 9th Circuit Judges spend their days wrestling with intriguing constitutional issues? No: they spend most of their time fretting over the nature of prior offenses. See, e.g., Fernandez-Ruiz v. Gonzalez, (9th Cir. Nov. 15, 2006) (holding misdemeanor assault not crime of moral turpitude); United States v. Moralez-Perez, (9th Cir. Nov. 13, 2006) (holding “purchase with intent to distribute” is an agg felony); United States v. Martinez-Martinez, (9th Cir. Nov. 14, 2006) (holding that firing a weapon at a residence not a categorical crime of violence).
Maybe it has just been an unusual month but it seems that, of late, someone gets a bonus for every reference to “Taylor analysis” in a published opinion.
Steven Kalar, Senior Litigator N.D. Cal. FPD. Website available at www.ndcalfpd.org