Reina-Rodriguez v. United States

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

HECTOR REINA-RODRIGUEZ,  No. 08-16676

Petitioner-Appellant, D.C. Nos.

v.

 4:07-cv-00640-DCB

4:04-cr-02415-DCB-

UNITED STATES OF AMERICA,

Respondent-Appellee. GE

 OPINION

Appeal from the United States District Court

for the District of Arizona

David C. Bury, District Judge, Presiding

Argued and Submitted

May 9, 2011—San Francisco, California

Filed June 22, 2011

Before: Betty B. Fletcher and Sidney R. Thomas,

Circuit Judges, and Nancy Gertner, District Judge.*

Opinion by Judge Thomas

*The Honorable Nancy Gertner, District Judge for the U.S. District

Court for Massachusetts, Boston, sitting by designation.

8463

8466 REINA-RODRIGUEZ v. UNITED STATES

COUNSEL

John M. Sands, Federal Public Defender, Christopher R. Kil-

burn, Brian I. Rademacher, Assistant Federal Public Defend-

ers, Tucson, Arizona, for appellant Reina-Rodriguez.

Dennis K. Burke, United States Attorney, Christina M.

Cabanillas, Appellate Chief, Elizabeth Adair Strange, Assis-

tant United States Attorney, Tucson, Arizona, for appellee

United States of America.

OPINION

THOMAS, Circuit Judge:

In this appeal, we consider whether our decision in United

States v. Grisel has retroactive effect. We conclude that it

does, and we reverse the judgment of the district court.

I

Hector Reina-Rodriguez appeals the district court’s denial

of his 28 U.S.C. § 2255 motion to correct a federal sentencing

enhancement imposed on account of his Utah conviction for

burglarizing a “dwelling.” Reina-Rodriguez was indicted in

federal district court for illegal re-entry after deportation, in

violation of 8 U.S.C. § 1326 and he pled guilty without a plea

agreement.

Under the Sentencing Guidelines, a violation of 8 U.S.C.

§ 1326 has a base offense level of eight. U.S.S.G. § 2L1.2.

The district court applied a 16-level enhancement because

Reina-Rodriguez had previously been convicted of second-

degree felony burglary in Utah—specifically, “burglary of a

dwelling” under Utah Code Ann. § 76-6-202(2)—which the

court concluded was a felony “crime of violence” under the

REINA-RODRIGUEZ v. UNITED STATES 8467

Guidelines. See U.S.S.G. § 2L1.2(b)(1)(A)(ii) & n.1(B)(iii).

Taking into account other adjustments and mitigating factors,

the district court sentenced Reina-Rodriguez to 51 months,

followed by 36 months of supervised release, and a $100 spe-

cial assessment.

At his sentencing, Reina-Rodriguez objected to the 16-level

enhancement. He conceded that he had been convicted of bur-

glarizing a dwelling under Utah law. But he claimed the

enhancement did not apply because “dwelling” was defined

more broadly under Utah law, see Utah Code Annotated § 76-

6-201(2),1 than under the Guidelines and the record did not

establish that the building he burglarized was a “dwelling”

under the Guidelines. As a result, he argued, his Utah bur-

glary conviction did not qualify as burglary of a dwelling

under the Guidelines.

The district court disagreed. The judge told Reina-

Rodriguez at sentencing that he had conducted a sua sponte

investigation and had taken judicial notice of public property

records in Weber County, Utah, which showed that the bur-

glarized building was a single-resident building and, hence, a

“dwelling” under the Guidelines. Thus, the court concluded,

Reina-Rodriguez’s conviction matched the Guidelines’ defini-

tion of burglary.

After being sentenced, Reina-Rodriguez filed a Rule 35

motion to modify his sentence. See Fed. R. Crim. P. 35(a). He

argued that the district court erred by not providing him notice

of its sua sponte investigation or its reliance on the public

property records. The district court denied the motion, con-

cluding that any error was harmless.

Reina-Rodriguez filed a direct appeal, challenging the 16-

1

Under Utah Code Annotated § 76-6-201(2), “[d]welling” means a

building that is usually occupied by a person lodging in the building at

night, whether or not a person is actually present.

8468 REINA-RODRIGUEZ v. UNITED STATES

level enhancement. A panel of our Court affirmed the district

court. United States v. Reina-Rodriguez, 468 F.3d 1147 (9th

Cir. 2006). The panel concluded that it did not need to address

the question of whether the district court correctly relied on

the public property records. Id. at 1154 n.8. Instead, the panel

applied the categorical and modified categorical analysis first

articulated in Taylor v. United States, 495 U.S. 575 (1990),2

and determined that “burglary of a dwelling under Utah law

categorically fits the Guidelines’ definition of burglary of a

dwelling.” Reina-Rodriguez, 468 F.3d at 1157. As part of its

analysis, the panel reasoned that structures adapted for sleep-

ing or lodging, which are “dwellings” under Utah law, cate-

gorically qualify as dwellings under the Guidelines. See id. at

1156-57. Thus, the panel concluded, the district court cor-

rectly applied the 16-level enhancement.

After the panel affirmed the district court in Reina-

Rodriguez, our Court issued an en banc opinion in United

States v. Grisel, 488 F.3d 844 (9th Cir. 2007) (en banc). In

Grisel, we overruled Reina-Rodriguez and other decisions “to

the extent that [they] suggest[ed] that state statutes satisfy

[Taylor’s] categorical inquiry when they define burglary to

include non-buildings adapted for overnight accommodation

. . . .” 488 F.3d at 851 n.5. After Grisel, courts must utilize

2

To determine whether a prior conviction qualifies as a “crime of vio-

lence” under U.S.S.G. § 2L1.2, we first apply the “categorical approach.”

United States v. Espinoza-Morales, 621 F.3d 1141, 1144 (9th Cir. 2010).

Under that approach, we first consider whether a prior offense is

categorically a crime of violence by assessing whether the full

range of conduct covered by the statute falls within the meaning

of that term. If the statute of conviction is overbroad—that is, if

it punishes some conduct that qualifies as a crime of violence and

some conduct that does not—it does not categorically constitute

a crime of violence. In that case, we must then apply the “modi-

fied categorical approach” to determine whether the record of

conviction shows that the defendant was convicted of the ele-

ments of the generically defined crime.

Id. (citations and internal quotation marks omitted).

REINA-RODRIGUEZ v. UNITED STATES 8469

the modified categorical approach to determine whether a

“dwelling” in Utah meets the Guidelines’ definition of

“dwelling.” See id. A non-building adapted for

accommodation—e.g., a vehicle or boat—may still qualify as

a “dwelling” under the Guidelines, but “it does not do so cate-

gorically.” Id.

In light of Grisel, Reina-Rodriguez filed a motion with the

district court under 28 U.S.C. § 2255, asking it to vacate, set

aside, and correct his sentence. He argued that Grisel should

be applied retroactively and that his conviction should be set

aside because “the Grisel court specifically overruled the pre-

vious Reina-Rodriguez panel’s opinion.” The district court

denied the motion because Reina-Rodriguez did not “establish

that the decision in Grisel should operate retroactively or that

Grisel provides him any relief.”

Reina-Rodriguez moved for reconsideration, but the district

court denied that motion, as well. The district court acknowl-

edged that Grisel overruled Reina-Rodriguez, at least in part:

“[A]fter Grisel, a modified categorical analysis must be uti-

lized in the Ninth Circuit to determine if there has been a

crime of violence that involved a dwelling as defined by Gri-

sel.” But, the court reasoned, both it and we had met the dic-

tates of the new rule by applying a modified categorical

approach.

Reina-Rodriguez requested a certificate of appealability,

but the district court denied the request. Among other reasons,

it concluded that “the issues raised in the COA have previ-

ously been addressed to, seriously considered by, and

resolved against this Court and the Ninth Circuit Court of

Appeals.” We, however, granted Reina-Rodriguez’s request

for a certificate of appealability with respect to the question

of “whether appellant’s sentence is unlawful based on his sen-

tencing enhancement for a prior crime of violence based on

a Utah burglary conviction.”

8470 REINA-RODRIGUEZ v. UNITED STATES

We have jurisdiction, under 28 U.S.C. § 2253, to review

the district court’s denial of Reina-Rodriguez’s § 2255 motion

and his motion for reconsideration. We review de novo: (1)

the district court’s denial of a 28 U.S.C. § 2255 motion,

United States v. Gamba, 541 F.3d 895, 898 (9th Cir. 2008);

(2) the district court’s interpretation of the Sentencing Guide-

lines, United States v. Salazar-Mojica, 634 F.3d 1070, 1072

(9th Cir. 2011); and (3) all other questions of law, United

States v. Millis, 621 F.3d 914, 916 (9th Cir. 2010).

II

[1] Generally speaking, new constitutional rules of crimi-

nal procedure do not operate retroactively for cases filed by

state prisoners3 seeking collateral federal habeas relief.

Teague v. Lane, 489 U.S. 288, 310 (1989). The primary ques-

tion in this case is whether Teague precludes retroactive

application of Grisel. We conclude that it does not.

The threshold questions for Teague application are whether

the articulated rule is (1) a new constitutional rule and (2) pro-

cedural or substantive. If the threshold qualifications for

Teague applicability are satisfied, there are two identified

additional exceptions to the doctrine. Beard v. Banks, 542

U.S. 406, 411 (2004) (citations and internal quotation marks

omitted). The first Teague exception that the Supreme Court

has described is for “rules forbidding punishment of certain

primary conduct [or to] rules prohibiting a certain category of

punishment for a class of defendants because of their status or

offense.” Id. at 416 (citations and internal quotation marks

omitted). However, as the Supreme Court has noted, rules

falling under this “exception” are “more accurately character-

ized as substantive rules not subject to the bar.” Schriro v.

Summerlin, 542 U.S. 348, 352 n.4 (2004). In other words,

what has been categorized traditionally as an exception is a

3

But see subsection C, infra, discussing our application of Teague to

federal prisoners’ § 2255 motions.

REINA-RODRIGUEZ v. UNITED STATES 8471

restatement of the threshold requirement that the new rule be

procedural rather than substantive. See Beard, 542 U.S. at 411

n.3 (citations and internal quotation marks omitted).

Under the second exception, Teague does not apply to “wa-

tershed rules of criminal procedure implicating the fundamen-

tal fairness and accuracy of the criminal proceeding.” Id. at

417 (citations and internal quotation marks omitted).

There are several reasons why Teague does not apply to

Grisel.

A

First, Teague applies only to “new constitutional rules of

criminal procedure.” Danforth v. Minnesota, 552 U.S. 264,

274 (2008) (quoting Teague, 489 U.S. at 310) (emphasis

added). If the new rule is not founded on constitutional con-

cerns, it does not implicate Teague. See, e.g., United States v.

Talk, 158 F.3d 1064, 1071 (10th Cir. 1998) (concluding that

retroactive application of a decision was not Teague barred

because the decision was “neither new nor constitutional. . . .

[The] prescriptions [of the decision] are not constitutional.”),

abrogated on other grounds as recognized in United States v.

Harms, 371 F.3d 1208, 1210 (10th Cir. 2004); Oliver v.

United States, 90 F.3d 177, 179 (6th Cir. 1996) (“Teague

stands for the proposition that new constitutional rules of

criminal procedure will not be announced or applied on col-

lateral review” (quotation marks and citation omitted)).

[2] Here, Reina-Rodriguez seeks to avail himself of a rule

from Grisel that limits the definition of burglary under the

Armed Career Criminal Act. Grisel is a new rule. See Whor-

ton v. Bockting, 549 U.S. 406, 416 (2007) (“The explicit over-

ruling of an earlier holding no doubt creates a new rule.”

(quoting Saffle v. Parks, 494 U.S. 484, 488 (1990))). But it is

not a new constitutional rule, since it does not implicate con-

stitutional rights. The rule simply delimits the conduct that

8472 REINA-RODRIGUEZ v. UNITED STATES

qualifies as burglary under Taylor’s categorical-approach

analysis. As a result, Teague’s retroactivity bar does not

apply.

B

Second, as we have previously explained, a “threshold

question in a Teague analysis is whether the rule that the peti-

tioner seeks to apply is a substantive rule or a procedural rule,

because ‘Teague by its terms applies only to procedural

rules.’ Bousley v. United States, 523 U.S. 614, 620 (1998).”

Hayes v. Brown, 399 F.3d 972, 982 (9th Cir. 2005). “New

substantive rules generally apply retroactively.” Summerlin,

542 U.S. at 351.

“For Teague purposes, a new rule is one of ‘procedure’ if

it affects the operation of the criminal trial process, and a new

rule is one of ‘substance’ if it alters the scope or modifies the

applicability of a substantive criminal statute.” Hayes, 399

F.3d at 982 (citing Bousley, 523 U.S. at 620). Substantive

rules “include[ ] decisions that narrow the scope of a criminal

statute by interpreting its terms . . . .” Summerlin, 542 at 351.

In Grisel, we considered the scope of a state criminal stat-

ute, Or. Rev. Stat. § 164.215(1), in the context of ascertaining

the scope of a federal criminal statute, 18 U.S.C. § 922(e). See

488 F.3d at 845. In doing so, we carefully examined the statu-

tory history, congressional intent, and Supreme Court con-

struction of the federal statute. Id. at 847-49. We concluded

that “second-degree burglary under Oregon law is not a cate-

gorical burglary for purposes of the [Armed Career Criminal

Act] . . . .” Id. at 851. One could hardly have a clearer exam-

ple of a “decision[ ] that narrow[s] the scope of a criminal

statute by interpreting its terms . . . .” Summerlin, 542 U.S. at

351; see also United States v. Shipp, 589 F.3d 1084, 1091

(10th Cir. 2009) (holding that the Supreme Court’s construc-

tion of the scope of the Armed Career Criminal Act was a

REINA-RODRIGUEZ v. UNITED STATES 8473

decision of substance, entitled to retroactive effect in federal

habeas proceedings).

[3] Grisel was grounded in substantive law, not criminal

procedure. In short, as the Supreme Court has instructed,

Teague’s anti-retroactivity principle “is inapplicable to the sit-

uation in which this Court decides the meaning of a criminal

statute enacted by Congress.” Bousley, 523 U.S. at 620. As

such, Teague does not apply here.

The Government’s arguments to the contrary are not per-

suasive. The Government first remarks that Grisel “did not

alter the range of conduct or the class of persons that Utah law

may punish for second degree burglary.” Of course it did not,

but that is quite beside the point. Grisel altered the punish-

ment that can be imposed on federal defendants under the

Armed Career Criminal Act. Under Grisel, federal courts can

no longer categorically enhance a sentence for such defen-

dants if the underlying state statute defines “burglary to

include non-buildings adapted for overnight accommodation.”

488 F.3d at 851 n.5.

Second, the Government argues, “[T]he new rule [only]

altered the permissible methods for determining” whether a

sentencing enhancement can be imposed on account of a state

burglary conviction. Not so. Grisel did not alter the proce-

dural dimensions of Taylor’s categorical approach. Rather, it

altered the conduct that substantively qualifies as burglary

under the categorical approach.

Because Grisel announced a substantive rule, rather than a

procedural one, Teague does not bar retroactive application of

Grisel.

C

Although we need not, and do not, reach this question, we

must note before leaving our discussion of Teague that there

8474 REINA-RODRIGUEZ v. UNITED STATES

is some doubt under current Supreme Court jurisprudence

whether Teague applies to federal prisoners, such as Reina-

Rodriguez, who seek federal habeas relief. As Chief Justice

Rehnquist noted, the Teague rule was “motivated by a respect

for the States’ strong interest in the finality of criminal con-

victions, and the recognition that a State should not be penal-

ized for relying on ‘the constitutional standards that prevailed

at the time the original proceedings took place.’ ” Lockhart v.

Fretwell, 506 U.S. 364, 372 (1993) (quoting Teague, 489 U.S.

at 306).

Recently, in Danforth, Justice Stevens discussed Teague at

length and further amplified that “the text and reasoning of

Justice O’Connor’s opinion also illustrate that the rule was

meant to apply only to federal courts considering habeas cor-

pus petitions challenging state-court criminal convictions.”

552 U.S. at 279. To be sure, Danforth did not directly con-

sider whether Teague applied to federal prisoners seeking fed-

eral habeas relief; it concerned a different question. However,

as the Sixth Circuit has noted, there is now some doubt as to

whether Teague applies to federal-prisoner petitioners. See

Duncan v. United States, 552 F.3d 442, 444 n.2 (6th Cir.

2009) (“It is not entirely clear that Teague’s framework is

appropriate for federal habeas petitions under 18 U.S.C.

§ 2255 because many of the comity and federalism concerns

animating Teague are lacking. . . . But it has been this Court’s

practice to apply Teague to § 2255 petitions, and we adhere

to it today.”).

After Lockhart, but prior to Danforth, we squarely held that

Teague applied to federal prisoner petitioners. United States

Sanchez-Cervantes, 282 F.3d 664, 667-68 (9th Cir. 2002); see

also United States v. Montalvo, 331 F.3d 1052, 1058 (9th Cir.

2003) (“We have already held that Teague applies equally to

sections 2254 and 2255 habeas cases.” (citing Sanchez-

Cervantes)). We need not consider in this case whether that

holding requires re-examination in light of Danforth’s con-

REINA-RODRIGUEZ v. UNITED STATES 8475

struction of Teague—a question that we highlight, but leave

for another day.

D

For the reasons we have discussed, Grisel applies to this

case, and the district court erred in concluding otherwise. Gri-

sel was a non-constitutional, substantive decision concerning

the reach of a federal statute. Grisel overruled the prior hold-

ing in this case that the Utah conviction categorically quali-

fied as a predicate offense under the Armed Career Criminal

Act. That conclusion applies to this habeas proceeding, and

the district court erred in concluding that it did not.

III

[4] Having decided that the Utah burglary does not cate-

gorically qualify as a predicate offense, we must now decide

whether the district court erred in concluding that it qualified

under a modified categorical analysis. Under that familiar

examination, if the statute criminalizes conduct that would not

constitute an aggravated felony under federal sentencing law,

as is the case here, then the conviction may not be used for

sentence enhancement unless the record includes “ ‘documen-

tation or judicially noticeable facts that clearly establish that

the conviction is a predicate conviction for enhancement pur-

poses.’ ” United States v. Rivera-Sanchez, 247 F.3d 905, 908

(9th Cir. 2001) (en banc) (quoting United States v. Casarez-

Bravo, 181 F.3d 1074, 1077 (9th Cir. 1999)), superseded on

other grounds by U.S.S.G. § 2L1.2 cmt. n.4 (2002), as recog-

nized in United States v. Narvaez-Gomez, 489 F.3d 970, 977

(9th Cir. 2007). “ ‘[I]f the statute and the judicially noticeable

facts would allow the defendant to be convicted of an offense

other than that defined as a qualifying offense by the guide-

lines, then the conviction does not qualify as a predicate

offense.’ ” Rivera-Sanchez, 247 F.3d at 908 (quoting

Casarez-Bravo, 181 F.3d at 1077).

8476 REINA-RODRIGUEZ v. UNITED STATES

[5] Thus, the relevant inquiry is whether the judicially

noticeable documents establish that the conviction necessarily

includes all of the elements of the qualifying offense. Rosas-

Castaneda v. Holder, 630 F.3d 881, 886 (9th Cir. 2011). Judi-

cially noticeable documents under the modified categorical

approach include the “charging document, written plea agree-

ment, transcript of plea colloquy, and any explicit factual

finding by the trial judge to which the defendant assented,” as

well as other documents with sufficient indicia of reliability.

Shepard v. United States, 544 U.S. 13, 16 (2005); see also

United States v. Snellenberger, 548 U.S. 699, 701-02 (9th Cir.

2008) (en banc) (per curiam).

A

With these considerations in mind, we must examine the

judicially noticeable documents in this case and determine

whether they establish that the defendant committed the

“crime of burglary of a dwelling,” as that crime has been

generically defined. The generic definition of “burglary of a

dwelling” under the Guidelines is the “ ‘unlawful or unprivi-

leged entry into, or remaining in, a building or other structure

[that is a dwelling], with intent to commit a crime.’ ” United

States v. Rodriguez-Rodriguez, 393 F.3d 849, 852 (9th Cir.

2005) (quoting Taylor, 495 U.S. at 598).

The salient question for us is whether the judicially notice-

able documents in this case establish that the burglary was of

a “dwelling.” After Grisel, the modified categorical analysis

requires courts to analyze the nature of the structure to deter-

mine whether it is a “dwelling” under the Guidelines. We

have held that a person’s residential house qualifies. See

Reina-Rodriguez, 468 F.3d at 1154-58; United States v.

Guerrero-Velasquez, 434 F.3d 1193, 1196-97 (9th Cir. 2006);

United States v. Matthews, 374 F.3d 872, 877-80 (9th Cir.

2004); United States v. Wenner, 351 F.3d 969, 972-74 (9th

Cir. 2003).

REINA-RODRIGUEZ v. UNITED STATES 8477

However, after Grisel—and contrary to our reasoning in

this case on direct appeal—“a non-building adapted for over-

night accommodation” no longer qualifies automatically as a

“dwelling” under the Guidelines. Grisel, 488 F.3d at 851 n.5.

A non-building might qualify in some circumstances, but “it

does not do so categorically.” Id.

B

In this case there are five documents urged for our consid-

eration: (1) the information; (2) the judgment; (3) the pre-

sentence report; (4) the district court’s report of its sua sponte

property investigation; and (5) a transcript of the state court

plea colloquy.

1

The information and the judgment of conviction are docu-

ments that we may properly consider under the modified cate-

gorical approach. Shepard, 544 U.S. at 16. However, they do

not establish that the Utah conviction qualifies as a “burglary

of a dwelling.” The information charges only that Reina-

Rodriguez “entered or remained unlawfully in a building or

any portion of a building located at 2521 Gramercy . . . .” The

judgment merely states that Reina-Rodriguez was convicted

of “BURGLARY a 2nd Degree Felony . . . .”

[6] Thus, neither the charging document nor the judgment

establish that the burglary was of a dwelling. At most, they

show that the defendant was convicted under Utah Code Ann.

§ 76-6-202(2), which we have held does not establish that the

defendant was convicted of the crime of “burglary of a dwell-

ing.” But they do not resolve the question of whether the

dwelling was a “a non-building adapted for overnight accom-

modation,” which could be a “dwelling” under Utah law but

not necessarily a “dwelling” under the Guidelines after Grisel.

See Grisel, 488 F.3d at 851 n.5; Reina-Rodriguez, 468 F.3d

at 1156-57. And whether the structure was located at a street

8478 REINA-RODRIGUEZ v. UNITED STATES

address is of little import, since structures or buildings that are

not dwellings under the Guidelines could also have been

located at the street address.

2

A district court may rely on an uncontroverted presentence

report for purposes of a categorical analysis when “the issue

is only whether the documents provided by the probation offi-

cer supported the fact of the . . . conviction.” United States v.

Felix, 561 F.3d 1036, 1045 (9th Cir. 2009) (emphasis added).

But it is inappropriate to use a presentence report “to deter-

mine the type or character of the conviction.” Id. (emphasis

in original). Accordingly, a district court cannot rely on a pre-

sentence report when employing a modified categorical analy-

sis. As we noted in United States v. Corona-Sanchez, 291

F.3d 1201, 1212 (9th Cir. 2002) (en banc), “[A] presentence

report reciting the facts of the crime is insufficient evidence

to establish that the defendant pled guilty to the elements of

the generic definition of a crime when the statute of convic-

tion is broader than the generic definition.” See also United

States v. Franklin, 895 F.2d 1231, 1237-38 (9th Cir. 1990).

Ascertaining whether Reina-Rodriguez’s conviction under

Utah Code Ann. § 76-6-202(2) qualifies as a “crime of vio-

lence” requires resort to the modified categorical approach;

the contents of the presentence report, therefore, may not be

consulted.4

4

Moreover, even if it could be consulted, the presentence report does

nothing to narrow Reina-Rodriguez’s crime of conviction to generic bur-

glary. The only thing it states is the probation officer’s view that because

the building Reina-Rodriguez entered was “identified by [a] street

address,” it could not have been “a ‘watercraft, aircraft,’ etc.” As we have

already explained, a street address alone does not rule out the possibility

that Reina-Rodriguez was convicted of burglarizing a non-dwelling build-

ing—such as an unattached garage or shed—at that address.

REINA-RODRIGUEZ v. UNITED STATES 8479

3

The district court also relied on its own independent exami-

nation of Utah property records in concluding that the defen-

dant had committed the offense of burglary of a dwelling. At

sentencing, the judge stated:

Furthermore, my office did a check of the public

property records in Utah, which I think this court can

take judicial notice of—I can take judicial notice

of—in fact I think the documents can be considered

judicially noticeable for purposes of enhancement,

and those property transfer records for Weaver

County Utah show that the address as listed in the

indictment at 2521 Jamerci Avenue (ph) is, in fact,

a single resident building. So Mr. Reina-Rodriguez

appears to have been charged with the burglary of a

residence. And by statute and by public records that

is a dwelling, and therefore I think he committed a

burglary, a crime of violence and should be

enhanced by 16 levels.

The district court did not place the document in the record,

so we have no means of reviewing it. It was not part of the

presentence report, and the parties had no notice before sen-

tencing that the court would consider it.

In any event, the court erred in considering the docu-

ment—as the government concedes on appeal—and it cannot

form part of a modified categorical analysis.5 A central thesis

of Taylor is the avoidance of “subsequent evidentiary

enquiries into the factual basis for the earlier conviction.”

Shepard, 544 U.S. at 20. Such inquiries are the “evil Taylor

5

Here again, the fact that “a single resident building” is located at the

street address in question does not mean that it is the only building at that

address that Reina-Rodriguez could have been convicted of burglarizing.

See note 4, supra.

8480 REINA-RODRIGUEZ v. UNITED STATES

sought to prevent—inquiries into the underlying facts that

would essentially turn the sentencing hearings into mini-trials

on the issue of whether the prior crimes were committed.”

Franklin, 235 F.3d at 1170 (quoting United States v. Bonat,

106 F.3d 1472, 1476 (9th Cir. 1997)). Under Taylor, “respect

for congressional intent and avoidance of collateral trials

require that evidence of generic conviction be confined to

records of the convicting court approaching the certainty of

the record of conviction in a generic crime State.” Shepard,

544 U.S. at 23.

[7] Thus, the “judicially noticeable documents” that are

appropriate for consideration are materials such as the “charg-

ing document, written plea agreement, transcript of plea collo-

quy, and any explicit factual finding by the trial judge to

which the defendant assented.” Id. at 16. We have held on

numerous occasions that, under the modified categorical

approach, courts are to conduct only a limited examination of

“the record of conviction” to determine whether the defendant

was convicted of the elements of the generically defined

crime. See Espinoza-Morales, 621 F.3d at 1144; see also

Young v. Holder, 634 F.3d 1014, 1019 (9th Cir. 2011); United

States v. Moriel-Luna, 585 F.3d 1191, 1200 n.7 (9th Cir.

2009); Malta-Espinoza v. Gonzales, 478 F.3d 1080, 1082 (9th

Cir. 2007); Chang v. INS, 307 F.3d 1185, 1189 (9th Cir.

2002), abrogated on other grounds, Nijhawan v. Holder, 129

S. Ct. 2294 (2009).

[8] Neither the parties nor the court is permitted in a Tay-

lor analysis of a past crime to develop new evidence outside

the record of conviction to prove the underlying elements of

the crime. Here, the public property records were clearly out-

side the record of conviction, and the district court erred by

relying on them at sentencing.

4

On appeal, the government urges us to consider the tran-

script of the state court plea colloquy. However, it did not

REINA-RODRIGUEZ v. UNITED STATES 8481

present this document to the district court, and it is not part

of the district court record. We decline to supplement the

record on appeal. First, we rarely take judicial notice of facts

presented for the first time on appeal. United States v. Torres-

Flores, 502 F.3d 885, 894 (9th Cir. 2007) (citations omitted).

Second, we take judicial notice of a fact only if it is “not sub-

ject to reasonable dispute.” Id. (citing Fed. R. Evid. 201(b)).

Here, the language of the colloquy is subject to varying inter-

pretations, and there is a reasonable dispute as to what the

plea colloquy establishes. Finally, and most importantly, it is

not within our province to sentence the defendant based on

considerations outside the sentencing decision. Appellate

courts are not sentencing courts. These questions are best left

to the sentencing court for consideration in the first instance.

Thus, we decline the government’s invitation to consider

material outside the district court record and deny its motion

to supplement the record.

5

Because none of the documents urged for our consideration

establish that the defendant committed the generic crime of

“burglary of a dwelling,” we cannot affirm the district court

on the basis of the modified categorical approach.

IV

[9] Because our decision in Grisel was a non-constitutional

decision of substantive law, it applies retroactively. Under

Grisel, the defendant’s burglary conviction does not qualify

categorically as a predicate offense. The documents in the

record are not sufficient to sustain the sentence under a modi-

fied categorical analysis. We reverse the district court and

remand for resentencing on an open record. United States v.

Matthews, 278 F.3d 880, 885 (9th Cir. 2002) (en banc).

VACATED and REMANDED.