US v. Johnson, No. 18-10016 (4-9-19)(Bennett w/M. Smith & Nguyen).

This opinion reminds us that objections to facts in the PSR matters, even in criminal history.  The 9th affirms a sentence in a felon in possession appeal. The defendant argues on appeal that his prior conviction was erroneously characterized and counted as a felony; he contends that it was a California “wobbler” and thus a misdemeanor. Although the gov’t said that the review should be plain error, and the defendant said de novo, the 9th said it didn’t matter because under Rule 32, the defendant failed to object to the facts that a prior was a felony, and indeed, even conceded in the sentencing memo that the defendant had “two felonies.” Alternatively, the 9th reaffirms the approach of “wobblers” under Moncrieffe v. Holder, 569 US 184 (2013), where the conduct could be both a felony and a misdemeanor.  There is no “wobbling” here, because the conduct was punished as a felony. The 9th stresses that a wobbler conviction is punishable as a felony, even if a court later exercises its discretion to reduce the offense to a misdemeanor. The classification of a wobbler conduct as a misdemeanor does not operate retroactively.

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/04/09/18-10016.pdf