United States v. Smith

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,  No. 03-30533

Plaintiff-Appellee, D.C. No.

v. CR-02-60101-1-

TIMOTHY DEAN SMITH,  ALA

Defendant-Appellant. ORDER AND

AMENDED

 OPINION

Appeal from the United States District Court

for the District of Oregon

Ann L. Aiken, District Judge, Presiding

Argued and Submitted

September 13, 2004—Portland, Oregon

Filed December 3, 2004

Amended April 27, 2005

Before: J. Clifford Wallace, Ronald M. Gould and

Carlos T. Bea, Circuit Judges.

Opinion by Judge Wallace

4671

UNITED STATES v. SMITH 4675

COUNSEL

Craig E. Weinerman, Assistant Federal Public Defender,

Eugene, Oregon, for the defendant-appellant.

Frank R. Papagni, Jr., Assistant United States Attorney,

Eugene, Oregon, for the plaintiff-appellee.

ORDER

The court’s opinion filed December 3, 2004, slip op.

16459, and appearing at 390 F.3d 661 (9th Cir. 2004), is

hereby amended as follows:

1. Line seven on slip op. 16467, after citation to Bonat, 106

F.3d at 1477, insert: “The Supreme Court has recently

approved the use of a plea colloquy transcript. See Shep-

ard v. United States, No. 03-9168, 544 U.S. ___, 2005

U.S. LEXIS 2205, at *7-8 (Mar. 7, 2005).”

2. Line five of slip op. 16471, after “of this mandate,”

insert: “The Supreme Court has suggested that a court’s

reliance on a defendant’s own admissions, as evidenced

by a plea transcript, does not implicate the concerns

underlying Apprendi. See Shepard, 2005 U.S. LEXIS

2205, at *23-26.”

With these amendments, the panel has voted to deny the

petition for panel rehearing. Judge Gould and Judge Bea have

voted to deny the petition for rehearing en banc, and Judge

Wallace so recommended. The full court has been advised of

the petition for rehearing en banc, and no judge has requested

4676 UNITED STATES v. SMITH

a vote on whether to rehear the matter en banc. Fed. R. App.

P. 35.

The petition for rehearing and the petition for rehearing en

banc are DENIED. No subsequent petitions for rehearing or

rehearing en banc may be filed.

OPINION

WALLACE, Senior Circuit Judge:

Smith appeals from his sentence because of the enhance-

ment imposed by the district court pursuant to the Armed

Career Criminal Act (ACCA), 18 U.S.C. § 924(e). He con-

tends the district court improperly relied on statements made

at a no contest plea hearing in concluding that an earlier state

burglary conviction qualifies as a “violent felony” for pur-

poses of the ACCA. In addition, Smith asserts that the district

court engaged in fact-finding which violated the constitutional

principle established in Apprendi v. New Jersey, 530 U.S. 466

(2000). The district court had jurisdiction pursuant to 18

U.S.C. § 3231. We have jurisdiction over this timely appeal

pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742, and we

affirm.

I.

A federal indictment charged Smith with being a felon in

possession of a firearm, in violation of 18 U.S.C. § 922(g)(1),

and alleged that he qualified for a sentence enhancement as an

Armed Career Criminal due to at least three prior burglary

convictions in California. Smith pleaded guilty and admitted

he had been convicted of the alleged prior offenses, but he

reserved the right to challenge the constitutional, statutory, or

factual validity of his prior convictions at sentencing.

UNITED STATES v. SMITH 4677

The government submitted documentation regarding

Smith’s prior convictions for two burglaries in Placer County

in 1984, two burglaries in Orange County in 1985, and a bur-

glary in Sacramento County in 1993. The district court con-

cluded that Smith’s convictions in Sacramento County and

Placer County qualified as “violent felonies” under 18 U.S.C.

§ 924(e)(2)(B)(ii). As provided by section 924(e)(1), the court

imposed the mandatory minimum sentence of fifteen years.

Smith does not dispute the applicability of section 924(e)(2)

to the two Placer County convictions. Therefore, the main

issue addressed in this appeal is whether the Sacramento con-

viction qualifies as a violent felony.

For the Sacramento conviction, the government submitted

the transcript of the plea hearing and the abstract of judgment.

The judgment indicates that Smith was convicted of burglary

in the first degree, in violation of California Penal Code

§ 459. The state court transcript establishes that at the change

of plea hearing, the prosecutor stated the factual basis for the

burglary charge:

With regard to 92F07246, on the date set forth in the

Complaint, in the County of Sacramento, the defen-

dant willfully and unlawfully entered an inhabited

dwelling occupied by Jennifer Smith located at 3624

Ronk, R-O-N-K, Way. Once inside he did take per-

sonal property belonging to her.

After the magistrate asked Smith’s counsel if she “wish[ed] to

comment on [the] factual basis,” his counsel replied:

No. The only comment is that he entered his former

occupant [sic]. He entered his former home which he

considered to be his current home. He had only been

away for two days. The codes were changed. He

went in and retrieved some of his personal items, all

of which were still at his home, all personal items

and toiletry of four years duration in that home. He

4678 UNITED STATES v. SMITH

did, however, take some things he should not have

that did not belong to him.

The magistrate then questioned Smith to ascertain whether he

understood the consequences of his plea. After finding there

was a factual basis for the plea, the magistrate found Smith

guilty of first degree burglary.

We review de novo whether a conviction is a predicate fel-

ony for purposes of the ACCA. United States v. Bonat, 106

F.3d 1472, 1474 (9th Cir. 1997). We also review de novo

whether the district court violated the constitutional rule artic-

ulated in Apprendi. United States v. Pina-Jaime, 332 F.3d

609, 611 (9th Cir. 2003).

II.

[1] The ACCA requires a fifteen year minimum sentence

for any person who violates the felon-in-possession prohibi-

tion of 18 U.S.C. § 922(g) and has three prior convictions for

a “violent felony.” 18 U.S.C. § 924(e)(1). The term “violent

felony” is defined to include burglary offenses which are pun-

ishable by more than one-year imprisonment. Id.

§ 924(e)(2)(B).

[2] In Taylor v. United States, 495 U.S. 575, 599 (1990),

the Supreme Court established a generic definition of burglary

for purposes of section 924(e)(2)(B): “[1] unlawful or unprivi-

leged entry into, or remaining in, [2] a building or structure,

[3] with intent to commit a crime.” A court generally must

apply a categorical approach at sentencing to determine

whether a defendant was convicted of conduct which included

these three elements of generic burglary. That is, it may “look

only to the fact of conviction and the statutory definition of

the prior offense.” Id. at 602.

[3] In this case, we first apply the Taylor categorical analy-

sis to Smith’s no contest plea. See Bonat, 106 F.3d at 1476

UNITED STATES v. SMITH 4679

(“It is well accepted that the Taylor analysis applies not only

to convictions resulting from a jury finding of guilt, it also

applies when the defendant has pled guilty”). California Penal

Code § 459 provides in part that “[e]very person who enters

any . . . building . . . with intent to commit grand or petit lar-

ceny or any felony is guilty of burglary.” This definition

expressly requires that a defendant have entered with the

intent to commit a crime. See United States v. Alvarez, 972

F.2d 1000, 1005 (9th Cir. 1992) (per curiam) (stating that a

conviction pursuant to section 459 requires that “the defen-

dant had, at the time of entry, the intent to commit a crime”).

Therefore, the fact of Smith’s conviction pursuant to section

459 establishes the intent element of generic burglary.

[4] Section 459 does not, however, require that the entry be

unlawful, nor does it require that the entry be into a building.

See Taylor, 495 U.S. at 591 (stating that “California defines

‘burglary’ so broadly as to include shoplifting and theft of

goods from a ‘locked’ but unoccupied automobile” and citing

California Penal Code § 459); United States v. Franklin, 235

F.3d 1165, 1169 (9th Cir. 2000) (“We have previously and

unequivocally held that California Penal Code section 459 is

far too sweeping to satisfy the Taylor definition of generic

burglary”). Thus, applying a categorical analysis, these ele-

ments of generic burglary are not satisfied.

[5] Yet, “in a narrow range of cases” where a factfinder

“was actually required to find all the elements of generic bur-

glary,” a court may apply a modified categorical approach and

look “beyond the mere fact of conviction.” Taylor, 495 U.S.

at 602. Although the court may not inquire into the underlying

facts of the conviction, Bonat, 106 F.3d at 1475, it may exam-

ine “documentation or judicially noticeable facts that clearly

establish that the conviction is a predicate conviction for

enhancement purposes.” 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)). The record must “unequivocally” establish that the

4680 UNITED STATES v. SMITH

defendant was convicted of the generic crime. United States

v. Corona-Sanchez, 291 F.3d 1201, 1211 (9th Cir. 2002) (en

banc).

[6] The record here consists of the transcript of the plea

hearing and the abstract of judgment. In Bonat, we held that

“examining the plea transcript was not an impermissible fac-

tual inquiry” by the district court. 106 F.3d at 1474. We rea-

soned that considering an oral admission that was later

transcribed entailed no more of a factual inquiry than examin-

ing a signed plea statement, which was permitted in United

States v. Sweeten, 933 F.2d 765, 769 (9th Cir. 1991) (per

curiam). Bonat, 106 F.3d at 1477. The Supreme Court has

recently approved the use of a plea colloquy transcript. See

Shepard v. United States, No. 03-9168, 544 U.S. ___, 2005

U.S. LEXIS 2205, at *7-8 (Mar. 7, 2005). We have also

allowed a court to consider a judgment of conviction. E.g.,

United States v. Hernandez-Valdovinos, 352 F.3d 1243, 1248

(9th Cir. 2003). Therefore, although courts are “limited to

consulting a narrow and carefully specified set of documents”

when applying the modified categorical approach, United

States v. Pallares-Galan, 359 F.3d 1088, 1099 (9th Cir.

2004), the documents in the record here are clearly appropri-

ate for review. See Franklin, 235 F.3d at 1170 n.5 (listing

documents which a sentencing court may consider).

[7] In determining that this record clearly established the

elements of generic burglary, the district court reasoned that

the factual basis for the charge, as set forth by the prosecutor

at the change of plea hearing, expressly stated that Smith “un-

lawfully entered an inhabited dwelling.” Furthermore, when

specifically asked to comment, defense counsel did not object

to this statement; rather, she explained that Smith had entered

his “former home” where the “codes were changed.” We con-

clude that these statements unequivocally establish that Smith

was convicted of unlawfully entering a building.

[8] Smith argues that the lack of a charging document in

the record prevents consideration of the change of plea tran-

UNITED STATES v. SMITH 4681

script. Although the various combinations of documents iden-

tified as permissible in Corona-Sanchez, 291 F.3d at 1211, all

included a charging document, we do not read our opinion as

establishing a per se requirement. We have “interpreted Tay-

lor’s edict to include examination of ‘documentation or judi-

cially noticeable facts that clearly establish that the conviction

is a predicate conviction for enhancement purposes[,] such as

the indictment, the judgment of conviction, jury instructions,

a signed guilty plea, or the transcript from the plea proceed-

ings.’ ” Rivera-Sanchez, 247 F.3d at 908 (alteration in origi-

nal) (emphasis added) (quoting Casarez-Bravo, 181 F.3d at

1077). Indeed, we have held that a court errs if it fails to con-

sider such documentation. See Franklin, 235 F.3d at 1170.

Moreover, although the district court in Bonat considered

the Information and the Sentence of Imprisonment from the

defendant’s prior burglary convictions in Arizona, it “primar-

ily relied on [the defendant]’s statements from the . . . change

of plea proceedings.” Bonat, 106 F.3d at 1476. Without the

change of plea transcript, the record was insufficient because

neither of the other documents established the requisite “in-

tent” element. Id. Here, the district court reviewed both the

abstract of judgment and the plea transcript, and it properly

relied primarily on the latter to establish the elements of (1)

unlawful entry (2) into a building. See also United States v.

Hernandez-Hernandez, 387 F.3d 799, 805 (9th Cir. 2004)

(“[The district court] did no more than we previously have

allowed by looking at the plea colloquy transcript . . . ; it

relied on readily available facts to which both sides expressly

stipulated that clearly fit within the statutory definition of a

crime of violence”). A charging instrument in this particular

case is simply unnecessary.

[9] Alternatively, Smith argues that the district court erred

in relying on the stated factual basis because he entered a “no

contest” plea rather than a guilty plea. However, in United

States v. Williams, 47 F.3d 993, 995 (9th Cir. 1995), the

defendant pleaded nolo contendere — or “no contest” — to

4682 UNITED STATES v. SMITH

charges that he “ ‘did willfully and unlawfully enter [a] resi-

dence,’ ” and we held that “[w]hen a defendant pleads guilty

(or as here, pleads nolo contendere) to facts stated in the con-

junctive, each factual allegation is taken as true.” See also

United States v. Stephens, 237 F.3d 1031, 1033-34 (9th Cir.

2001) (two burglary convictions entered pursuant to the

defendant’s nolo contendere pleas qualified as “violent felo-

nies” pursuant to the ACCA, even though the state’s defini-

tion of “burglary” did not require entry into a building,

because the “indictments clearly refer[red] to burglaries of

‘buildings’ within the scope of the definition of ‘burglary’

provided by Taylor”); CAL. PENAL CODE § 1016 (“The legal

effect of [a nolo contendere] plea, to a crime punishable as a

felony, shall be the same as that of a plea of guilty for all pur-

poses”).

[10] Although in Williams the defendant pleaded nolo con-

tendere to a charging instrument and the record here does not

include such an instrument, the district court may rely on the

undisputed factual basis as stated at the plea hearing to sup-

port the ACCA enhancement. In United States v. Palmer, 68

F.3d 52, 53 (2d Cir. 1995), the Second Circuit considered

whether a conviction entered pursuant to a nolo contendere

plea constituted a “crime of violence” within the meaning of

U.S.S.G. § 4B1.2(1). The Information merely stated, “without

elaboration,” that the defendant had committed “the crime of

intimidation based on bigotry and bias . . . in violation of

General Statute No. 53a-181b.” Id. at 56. However, the court

held that “the plea proceeding includes a lucid description of

the conduct for which Palmer was convicted, that conduct

manifestly constitutes a ‘crime of violence’ . . . , and Palmer’s

on-the-record agreement to the description of his conduct

proffered by the prosecuting attorney results in the functional

equivalent of a plea agreement with respect to that conduct.”

Id. at 59; see also United States v. Etimani, 328 F.3d 493,

503-04 (9th Cir. 2003) (holding that the record did not estab-

lish that a prior conviction was for a “sexual act” for purposes

of the 18 U.S.C. § 2241(c) sentence enhancement, but

UNITED STATES v. SMITH 4683

remarking that “a transcript of Etimani’s plea of no-contest

might have clarified the exact nature of his prior conviction,

but none was provided”).

[11] The reasoning in Palmer is persuasive. As applied to

this case, the factual basis stated by the prosecutor clearly

establishes that Smith “unlawfully entered an inhabited dwell-

ing,” and Smith conceded this fact through his counsel, who

did not object when asked to comment. On the contrary,

Smith’s counsel confirmed this fact when she stated that

Smith had entered his “former home” even though the “codes

were changed.” Smith is bound by his counsel’s statement.

See Hernandez-Hernandez, 387 F.3d at 806 (“There is no

authority to support the proposition that when Hernandez-

Hernandez’s attorney stipulated to the factual basis supporting

the plea agreement the defendant was not bound by the facts

contained in that stipulation. In fact, we have repeatedly held

that criminal defendants are bound by the admissions of fact

made by their counsel in their presence and with their authori-

ty.”).

[12] Thus, we hold that this record unequivocally estab-

lishes that Smith’s conviction by plea encompassed the three

elements of the Taylor definition of generic burglary.

III.

[13] Smith argues the district court’s examination of his

prior convictions violated the rule established in Apprendi:

“Other than the fact of a prior conviction, any fact that

increases the penalty for a crime beyond the prescribed statu-

tory maximum must be submitted to a jury, and proved

beyond a reasonable doubt.” 530 U.S. at 490.

[14] However, we have repeatedly rejected Apprendi chal-

lenges to the ACCA. See United States v. Keesee, 358 F.3d

1217, 1220 (9th Cir. 2004) (citing Summers and summarily

rejecting claim that Apprendi entitled Keesee to a jury trial to

4684 UNITED STATES v. SMITH

determine whether prior convictions qualified as predicate

offenses under the ACCA); United States v. Summers, 268

F.3d 683, 689 (9th Cir. 2001) (rejecting facial challenge to

ACCA based on Apprendi); see also United States v. Tighe,

266 F.3d 1187, 1191 (9th Cir. 2001) (rejecting facial chal-

lenge to ACCA based on Apprendi).

[15] Smith, however, contends that the district court deter-

mined more than the “fact of a prior conviction” in his case

because it employed the modified categorical approach. But,

Taylor prohibits “inquiry into the underlying facts of the con-

viction,” even when applying the modified categorical

approach, Bonat, 106 F.3d at 1475, and the district court did

not run afoul of this mandate. The Supreme Court has sug-

gested that a court’s reliance on a defendant’s own admis-

sions, as evidenced by a plea transcript, does not implicate the

concerns underlying Apprendi. See Shepard, 2005 U.S.

LEXIS 2205, at *23-26. We therefore reject this argument.

[16] Finally, the Supreme Court’s recent decision in

Blakely v. Washington, 124 S. Ct. 2531 (2004), does not

undermine the Apprendi exception for sentence enhancements

triggered by “the fact of a prior conviction.” As we recently

explained in United States v. Quintana-Quintana, 383 F.3d

1052, 1053 (9th Cir. 2004), “Blakely does nothing to upset

this well-settled rule.”

IV.

For the reasons stated above, we conclude that the district

court did not err in determining that Smith’s conviction for

the burglary in Sacramento qualifies as a “violent felony” for

purposes of the ACCA enhancement. We also conclude that

the district court did not find facts in violation of the Apprendi

rule. We therefore affirm the sentence imposed by the district

court.

AFFIRMED.