United States v. Von Brown

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,  No. 04-30219

Plaintiff-Appellee,

D.C. No.

v.

 CR-03-00016-SEH

JASY VON BROWN, aka Jasy Drags

OPINION AND

Wolf,

ORDER

Defendant-Appellant.



Appeal from the United States District Court

for the District of Montana

Sam E. Haddon, District Judge, Presiding

Argued and Submitted

January 11, 2005—Seattle, Washington

Filed August 8, 2005

Before: Mary M. Schroeder, Chief Judge, and

Susan P. Graber and Raymond C. Fisher, Circuit Judges.

Per Curiam Opinion

10185

UNITED STATES v. BROWN 10187

COUNSEL

David F. Ness, Assistant Federal Defender, Federal Defenders

of Montana, Great Falls, Montana, for the defendant-

appellant.

Klaus P. Richter, Assistant United States Attorney, Billings,

Montana, for the plaintiff-appellee.

OPINION

PER CURIAM:

Defendant Jasy Von Brown pleaded guilty to one count of

burglary, in violation of 18 U.S.C. § 1153(a) and Montana

Code Annotated § 45-6-204. He appeals his sentence as a

career offender under the United States Sentencing Guidelines

(U.S.S.G.) § 4B1.1. In keeping with our decisions in United

States v. Quintana-Quintana, 383 F.3d 1052, 1053 (9th Cir.

2004), cert. denied, 125 S. Ct. 1100 (2005), and United States

v. Smith, 390 F.3d 661, 666-67 (9th Cir. 2004), we hold that

enhancing Defendant’s sentence on account of his prior con-

victions did not violate the Sixth Amendment, as interpreted

by the Supreme Court in Blakely v. Washington, 542 U.S. 296

(2004), and United States v. Booker, 125 S. Ct. 738, 755-56

(2005).

PROCEDURAL HISTORY

The base offense level for Defendant’s crime of conviction

was 17. U.S.S.G. § 2B2.1(a)(1). But, because the conviction

qualified as a “crime of violence”1 and Defendant had at least

1

The indictment charged, and Defendant admitted in his plea agreement,

that he burglarized a residence. This act satisfies the definition of “crime

of violence” found in U.S.S.G. § 4B1.2: “The term ‘crime of violence’

means any offense under federal or state law, punishable by imprisonment

for a term exceeding one year, that . . . is burglary of a dwelling[.]”

(emphasis added).

10188 UNITED STATES v. BROWN

two prior felony convictions for crimes of violence,2 he was

sentenced as a career offender under U.S.S.G. § 4B1.1, and

his offense level was increased to 29. After a three-point

reduction for acceptance of responsibility, his total offense

level was 26. Defendant’s criminal history category was VI

because of his five prior felony convictions and his sentencing

as a career offender. U.S.S.G. § 4B1.1(a). With an offense

level of 29 and a criminal history category of VI, the resultant

sentencing range was 120 to 150 months; the court imposed

a sentence of 148 months.

DISCUSSION

[1] On appeal, Defendant raises two related issues pertain-

ing to the career-offender enhancement.3 First, he argues that

the fact of his prior convictions had to be proved to a jury

beyond a reasonable doubt. That argument is foreclosed by

Quintana-Quintana, 383 F.3d at 1053, which held that

Blakely, 542 U.S. 296, does not upset the rule that Apprendi

v. New Jersey, 530 U.S. 466 (2000), carves out an exception

for proving the fact of a prior conviction. Booker, 125 S. Ct.

at 755-56, which applied Blakely to the federal Sentencing

Guidelines, does not change the Sixth Amendment analysis.

See Booker, 125 S. Ct. at 756 (“Any fact (other than a prior

conviction) which is necessary to support a sentence exceed-

ing the maximum authorized by the facts established by a plea

of guilty or a jury verdict must be admitted by the defendant

or proved to the jury beyond a reasonable doubt.”) (emphasis

added); see also United States v. Cortez-Arias, 403 F.3d 1111,

1114 n.8 (9th Cir. 2005) (“Because the sentencing enhance-

2

Two of Defendant’s prior convictions were for second-degree assault,

a Class B felony that “has as an element the use, attempted use, or threat-

ened use of physical force against the person of another,” U.S.S.G.

§ 4B1.2(a)(1), and is punishable by up to 10 years’ imprisonment. See

Wash. Rev. Code §§ 9A.20.021(1)(b), 9A.36.021.

3

We review for plain error, because Defendant did not raise these argu-

ments before the district court. United States v. Ameline, 409 F.3d 1073,

1078 (9th Cir. 2005) (en banc).

UNITED STATES v. BROWN 10189

ment we address is based only on the fact of a prior convic-

tion, our decision is unaffected by the Supreme Court’s recent

holding in [Booker].”); United States v. Moreno-Hernandez,

397 F.3d 1248, 1255 n.8 (9th Cir. 2005) (same).

[2] Defendant’s second argument is that, even if the fact of

a prior conviction need not be proved to a jury beyond a rea-

sonable doubt, a jury must decide whether a prior conviction

should be classified as a “crime of violence” for the purpose

of determining career-offender status under U.S.S.G. § 4B1.1.

We rejected a nearly identical argument in Smith, 390 F.3d at

666-67. There, we held that the district court determined no

more than the “fact of a prior conviction” when it character-

ized the defendant’s prior convictions as “violent felonies” for

purposes of the Armed Career Criminal Act, 18 U.S.C.

§ 924(c). We reasoned that the categorical and modified cate-

gorical analyses conducted pursuant to Taylor v. United

States, 495 U.S. 575 (1990), and employed in Smith, prohibit

inquiry into the facts underlying a prior conviction. Smith,

390 F.3d at 664-66. We see no principled basis for a different

rule under the career-offender provisions of the Sentencing

Guidelines. See United States v. Riley, 183 F.3d 1155, 1158

(9th Cir. 1999) (applying the Taylor categorical approach to

a “crime of violence” determination under the career-offender

provisions of the Sentencing Guidelines).

[3] When the Taylor approach is followed, the categoriza-

tion of a prior conviction as a “violent felony” or a “crime of

violence” is a legal question, not a factual question coming

within the purview of Apprendi, Blakely, and Booker.4 See,

4

The Supreme Court recently signaled that Sixth Amendment concerns

are implicated when courts stray from the Taylor approach and make find-

ings of fact about the prior conviction by referring to sources outside the

formal record of conviction. See Shepard v. United States, 125 S. Ct.

1254, 1262-63 (2005) (plurality) (holding that such findings would raise

“serious risks of unconstitutionality”); id. at 1264 (Thomas, J., concurring

in part and concurring in the judgment) (arguing that “broadening the evi-

10190 UNITED STATES v. BROWN

e.g., United States v. Lewis, 405 F.3d 511, 514 (7th Cir. 2005)

(“That legal criteria (‘what kind of crime is this?’) rather than

factual inquiries (‘what did this person do when violating that

statute?’) identify a ‘crime of violence’ is the principal reason

why the [prior convictions] proviso to Booker exists[.]”);

United States v. McGuire, 389 F.3d 225, 231 (1st Cir. 2004)

(noting that “whether a prior conviction qualifies as a predi-

cate offense under [U.S.S.G.] section 4B1.1 is a question of

law” and holding that the defendant’s sentencing as a career

offender did not violate Blakely) (internal quotation marks

and alterations omitted); United States v. Trala, 386 F.3d 536,

547 n.15 (3d Cir. 2004) (holding, under U.S.S.G. § 4B1.1,

that “whether an offense is a ‘crime of violence or a con-

trolled substance offense’ is a legal determination, which does

not raise an issue of fact under Blakely or Apprendi”).

Accordingly, Defendant’s sentence was not based on an

impermissible finding of fact, but only on the fact of his prior

convictions. Therefore, there is no Sixth Amendment viola-

tion.

We have held that “where the district court did not treat the

sentencing guidelines as advisory but the defendant’s sen-

dence judges may consider when finding facts under Taylor . . . would not

give rise to constitutional doubt, as the plurality believes,” but to “consti-

tutional error”); see also United States v. Ngo, 406 F.3d 839, 843 (7th Cir.

2005) (holding that the court’s finding that the defendant’s prior convic-

tions were not part of a common scheme or plan violated the Sixth

Amendment principles articulated in Shepard); United States v. Washing-

ton, 404 F.3d 834, 841 (4th Cir. 2005) (holding that the Sixth Amendment

was violated because “the sentencing court relied on facts outside the

indictment,” and that its analysis therefore “involved more than the ‘fact

of a prior conviction’ ”).

Those concerns are absent here because Defendant has not argued (nor

could he, see notes 1 and 2, supra) that the district court strayed from the

categorical approach. Cf. United States v. Childs, 403 F.3d 970, 972 (8th

Cir. 2005) (“In this case, the district court considered only the charging

documents and Childs’ admissions to convictions to find that Childs’ four

prior convictions were violent felonies. For that reason Shepard . . .

affords Childs no relief.”).

UNITED STATES v. BROWN 10191

tence was not enhanced by extra-verdict findings,” a noncon-

stitutional sentencing error has occurred. See United States v.

Ameline, 409 F.3d 1073, 1084 n.8 (9th Cir. 2005) (en banc).

Both parties should notify the court within 10 days of the pub-

lished date of this opinion if they want to pursue an Ameline

remand. See id. at 1084 (“When faced with an unpreserved

Booker/Fanfan error, the reviewing panel must first determine

if an eligible party wants to pursue the subject.”).

BRIEFING ORDERED.