Argued
and Submitted December 6, 2018
Appeal
from the United States District Court for the Eastern
District of Washington No. 2:16-cr-00113-RMP-1 Rosanna Malouf
Peterson, District Judge, Presiding
William Miles Pope (argued), Federal Defenders of Eastern
Washington & Idaho, Spokane, Washington, for
Defendant-Appellant.
Matthew F. Duggan (argued), Assistant United States Attorney;
Joseph H. Harrington, United States Attorney; United States
Attorney's Office, Spokane, Washington; for
Plaintiff-Appellee.
Before: Susan P. Graber, M. Margaret McKeown, and Morgan B.
Christen, Circuit Judges.
SUMMARY[*]
Criminal
Law
The
panel vacated a sentence for unlawfully reentering the United
States after having been removed, and remanded for
resentencing, in a case in which the district court applied a
four-level increase to the offense level under U.S.S.G.
§ 2L1.2 on the ground that, prior to his removal order,
the defendant had been convicted of a Washington state
offense punishable by imprisonment for a term exceeding one
year.
In
applying the four-level increase because the defendant's
Washington conviction carried a general statutory maximum
term of imprisonment of five years, the district court
applied this court's precedent which required the
district court to disregard the maximum term that the
defendant actually could have received under state law. The
panel held that this precedent is irreconcilable with later
Supreme Court decisions-Carachuri-Rosendo v. Holder,
560 U.S. 563 (2010), and Moncrieffe v. Holder, 569
U.S. 184 (2013), which held that when determining whether an
offense is "punishable" by a certain term of
imprisonment, courts must consider both a crime's
statutory elements and sentencing factors-and must be
overruled.
Because
under the Washington statutes that prescribe a binding
sentencing range, the actual maximum term that the defendant
could have received was six months, the panel held that the
district court erred by concluding that the defendant's
offense was punishable by more than one year in prison.
OPINION
GRABER, CIRCUIT JUDGE
Defendant
Jose Manuel Valencia-Mendoza pleaded guilty to unlawfully
reentering the United States after having been removed, in
violation of 8 U.S.C. § 1326(a). At sentencing, the
district court applied a four-level increase to the total
offense level, under United States Sentencing Guideline
§ 2L1.2, because the court concluded that Defendant had
been convicted of a "felony" under Washington law.
The commentary to § 2L1.2 defines "felony" as
"any federal, state, or local offense punishable by
imprisonment for a term exceeding one year." U.S.S.G.
§ 2L1.2 cmt. n.2.
Defendant's
conviction under Washington law carried a general statutory
maximum term of imprisonment of five years. The district
court faithfully applied our precedent and stopped its
analysis there: Because the general statutory maximum
exceeded one year, the enhancement under § 2L1.2
applied.
But the
actual maximum term that Defendant could have
received was only six months, because Washington law imposed
a mandatory sentencing range. Our precedent required the
district court to disregard the maximum term that Defendant
actually could have received under state law, in favor of the
maximum term that Defendant theoretically could have received
if different factual circumstances were present. Reviewing de
novo the interpretation of the Sentencing Guidelines,
United States v. Martinez, 870 F.3d 1163, 1165 (9th
Cir. 2017), we conclude that later Supreme Court decisions
are clearly irreconcilable with our precedent on this point.
Accordingly, we vacate the sentence and remand for
resentencing.
FACTUAL
AND PROCEDURAL HISTORY
In
2007, Defendant was convicted in Washington state court of
possession of cocaine, in violation of Revised Code of
Washington ("RCW") section
69.50.4013.[1] Defendant's conviction was for a
"class C felony punishable under chapter 9A.20
RCW." RCW § 69.50.4013(2). Section 9A.20.021
provided, in turn:
Unless a different maximum sentence for a classified felony
is specifically established by a statute, no person convicted
of a classified felony shall be punished by confinement or
fine exceeding the following:
. . . .
(c) For a class C felony, by confinement in a state
correctional institution for five years, or by a fine in an
amount fixed by the court of ten thousand dollars, or by both
such confinement and fine. The general statutory maximum term
of imprisonment for Defendant's crime was, therefore,
five years.
But, in
addition to providing statutory maximum terms, Washington law
specified mandatory limits on criminal sentences.
RCW section 9.94A.505');">94A.505 provided, at the relevant time:
"Unless another term of confinement applies, the court
shall impose a sentence within the standard sentence
range established in RCW 9.94A.510');">94A.510 or 9.94A.517');">94A.517."
(Emphasis added.) Section 9.94A.517');">94A.517 applied to drug
convictions and provided a two-dimensional "[d]rug
offense sentencing grid." The grid defined the
"standard sentence range[]" for an offense,
depending on the "seriousness level" and the
"offender score." RCW § 9.94A.517');">94A.517(1).
Defendant's
crime had a "seriousness level" of "I."
See RCW § 9.94A.520');">94A.520 ("The offense
seriousness level is determined by the offense of
conviction."); RCW § 9.94A.518');">94A.518 (defining
convictions under section 69.50.4013 as having a seriousness
level of "I"). The state court calculated
Defendant's "offender score" as 0. See
RCW § 9.94A.525');">94A.525 (providing detailed calculation of
"offender score"). Turning back to the drug offense
sentencing grid, the "standard sentence range" for
seriousness level I and offender level 0 was "0 to 6
months." RCW § 9.94A.517');">94A.517(1).
If
certain aggravating circumstances were present, the statutes
contained adjustments to that range. RCW § 9.94A.533');">94A.533.
For example, the presence or use of a firearm could have
resulted in a standard range that exceeded the sentencing
range described in the two-dimensional chart. RCW §
9.94A.533');">94A.533(3)-(5). But none of those circumstances was found
to be present, so Defendant's final standard range was
zero to six months.[2] Defendant's state criminal judgment
summarized the available sentence in a tidy table reproduced
below.
|
COUNT NO.
|
OFFENDER SCORE
|
SERIOUSNESS LEVEL
|
STANDARD RANGE (not including
enhancements)
|
Plus Enhancements for Firearm (F), other
deadly weapon finding (D), VUCSA (V) in a protected
zone, Veh. Hom. (VH). See RCW 46.61.520 or Juvenile
present (JP); Sexual Motivation (SM)
|
Total STANDARD RANGE (including
enhancements)
|
MAXIMUM TERM
|
|
1
|
0
|
1
|
0 to 6 months
|
N/A
|
0 to 6 months
|
5 years $10, 000.00
|
The
calculation of the final standard range (sometimes referred
to as the "presumptive sentence") does not end the
statutory analysis. Washington law allowed the sentencing
court to deviate from the standard range-but only if certain
statutorily permitted findings were made. Section 9.94A.535');">94A.535,
titled "[d]epartures from the guidelines," provided
that "[t]he court may impose a sentence outside the
standard sentence range for an offense if it finds,
considering the purpose of this chapter, that there are
substantial and compelling reasons justifying an exceptional
sentence." It further provided that "[w]henever a
sentence outside the standard sentence range is imposed, the
court shall set forth the reasons for its decision in written
findings of fact and conclusions of law." RCW §
9.94A.535');">94A.535. (By contrast, sentences within the standard range
could be imposed without special descriptions. RCW §
9.94A.530');">94A.530(1).)
Critically,
whether "substantial and compelling reasons" exist
was not an open-ended inquiry. The statute specified
two categories of aggravating circumstances that permitted
departure from the guidelines: findings by the sentencing
court and findings by a jury. See RCW §
9.94A.535');">94A.535(2) (listing the four aggravating circumstances that
could be found by the sentencing court); RCW §
9.94A.535');">94A.535(3) (listing the 26 aggravating circumstances that
could be found by the jury). If an aggravating circumstance
was found, then the sentencing court could impose a sentence
up to the statutory maximum term. RCW § 9.94A.537');">94A.537(6).
But unless one of the ...