U.S. v. Charles, No. 08-50086 (9-9-09). The 9th considered a categorical challenge to a career offender determination. There are some interesting twists. The defendant pled to being a felon in possession and possession with intent. The court determined he was a career offender and sentenced him to 204 months. On appeal, the defendant challenged the use of a prior state offense (California's Health and Safety 11351.5 drug statute). He argued that in reviewing the elements of an offense, the court should also include common law defenses, such as entrapment, which the defendant bears the burden of proof. The 9th (Callahan joined by Canby and Wardlaw) first wrestles with the waiver. The 9th finds that the appeal was not waived because the plea agreement was ambiguous. The plea's waiver language dealt with if the court sentenced as a non-career offender, leaving open the possibility of appealing a career offender determination. Second, the 9th reviewed this under plain error because no objection was raised. Third, the 9th looked at the argument, and wrote that an argument could be raised, but that it fell short here. The precedent cited, Gomez v. Mendez, 486 F.3d 599 (9th Cir. 2007) raised the possibility, but there as here, it fell short. This panel stresses that the elements of an offense must be examined, and not defenses. Still, it may pay to look at exceptions for such elements.