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United States v. Valencia-Mendoza

United States Court of Appeals, Ninth Circuit

January 10, 2019

United States of America, Plaintiff-Appellee,
v.
Jose Manuel Valencia-Mendoza, aka Jose Valencia-Vargas, Defendant-Appellant. 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

          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 ...


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