“Under Taylor . . . the actual statute of prior conviction must be supplied to the dis- trict court by the government whether or not anyone objects to its absence.”
How later courts described this case
- “Under Taylor . . . the actual statute of prior conviction must be supplied to the dis- trict court by the government whether or not anyone objects to its absence.”
Written by the judges who cited it.
The opinion
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 06-30200
Plaintiff-Appellee,
D.C. No.
v.
CR-05-00087-2-a-
GREGORY ANTHONY RENDON- RRB
DUARTE,
OPINION
Defendant-Appellant.
Appeal from the United States District Court
for the District of Alaska
Ralph R. Beistline, District Judge, Presiding
Argued and Submitted
December 5, 2006—Seattle, Washington
Filed March 21, 2007
Before: Betty B. Fletcher and M. Margaret McKeown,
Circuit Judges, and William W Schwarzer* District Judge.
Opinion by Judge Schwarzer
*The Honorable William W Schwarzer, Senior United States District
Judge for the Northern District of California, sitting by designation.
3341
3344 UNITED STATES v. RENDON-DUARTE
COUNSEL
Allison Mendel, Mendel & Associates, Anchorage, Alaska,
for the defendant-appellant.
Jo Ann Farrington, Assistant U.S. Attorney and Deborah M.
Smith, Acting U.S. Attorney, Anchorage, Alaska, for the
plaintiff-appellee.
OPINION
SCHWARZER, District Judge:
Gregory Anthony Rendon-Duarte (Rendon-Duarte) was
sentenced to 70 months’ imprisonment and 36 months’ super-
vised release after a jury convicted him of one count of being
a felon in possession of two firearms, in violation of
18 U.S.C. §§ 922(g)(1) & 924(a)(2). On appeal, he challenges
the district court’s admission of evidence under Federal Rule
of Evidence 404(b) of two prior incidents of gun possession
to prove intent, knowledge and lack of mistake. He also chal-
lenges the district court’s finding that his prior Alaska state
court conviction of Assault in the Third Degree qualifies as a
UNITED STATES v. RENDON-DUARTE 3345
“crime of violence” under the Sentencing Guidelines. We
affirm.
FACTUAL AND PROCEDURAL HISTORY
On September 1, 2005, Anchorage police officers observed
Rendon-Duarte purchase what they thought was a handgun
from Dwayne Dollison, Jr. (Dollison). The officers then
observed Rendon-Duarte return to the passenger seat of his
vehicle, lean over in the area of the passenger seat, and appear
to move something on the floor. A few minutes later police
stopped the vehicle, which was being driven by Jonel Ferger-
son, Rendon-Duarte’s girlfriend. Police arrested Rendon-
Duarte and, pursuant to a search warrant, recovered two
loaded handguns from under the vehicle’s floor carpet in front
of the front passenger seat. The vehicle was registered to
Rendon-Duarte’s father, who testified that he had bought it
for his son a few months earlier. Fergerson, at Rendon-
Duarte’s request, claimed ownership of the weapons, but at
trial she acknowledged that the weapons did not belong to her
and that she had not placed them in the vehicle.
Prior to trial, the district court denied Rendon-Duarte’s
motion in limine to bar evidence of two prior occasions on
which weapons were found within vehicles driven or occu-
pied by Rendon-Duarte, finding these incidents relevant to
Rendon-Duarte’s knowledge, intent, or absence of mistake.
After a three-day trial, the jury found Rendon-Duarte guilty
of being a felon in possession of two firearms. The Presen-
tence Report (PSR) calculated an offense level of 20, taking
into account that the offense was committed subsequent to
sustaining a felony conviction of a “crime of violence,” i.e.,
a prior Alaska conviction of Assault in the Third Degree. See
U.S. Sentencing Guidelines Manual § 2K2.1(a)(4)(A) (felon
in possession of a firearm). Rendon-Duarte did not object to
the PSR. In the absence of objection, the district court
accepted the facts stated in the PSR as established by a pre-
ponderance of the evidence. Concluding Rendon-Duarte fell
3346 UNITED STATES v. RENDON-DUARTE
within the Guidelines’ range of 63-78 months’ imprisonment,
the court imposed a sentence of 70 months.
DISCUSSION
I.
[1] Federal Rule of Evidence 404(b) limits the admissibility
of evidence of prior acts to those which serve as proof of
“motive, opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident.” We use a four-
part test to determine the admissibility of evidence under Rule
404(b). United States v. Arambula-Ruiz, 987 F.2d 599, 602
(9th Cir. 1993).
(1) it must prove a material element of the offense
for which the defendant is now charged; (2) in cer-
tain cases, the prior conduct must be similar to the
charged conduct; (3) proof of the prior conduct must
be based upon sufficient evidence; and (4) the prior
conduct must not be too remote in time.
Id. We need address only the first part of the test.
The government offered “bad act” testimony from two
police officers. Sergeant Kass testified that in June 2003, in
connection with a traffic stop of a vehicle in which Rendon-
Duarte was riding, two weapons were found stashed in the
cover of the sunroof of the car. Lieutenant Gilliam testified
that in March 2001, when a car driven by Rendon-Duarte was
checked following an accident, a weapon and shell casings
were found on the floorboard of the driver’s seat below where
Rendon-Duarte had been sitting. The jury was instructed that
it could consider this evidence “only as it bears on defen-
dant’s intent, knowledge, absence of mistake or accident, and
for no other purpose.”
The district court held the evidence admissible, finding a
sufficient nexus between these incidents and the conduct with
UNITED STATES v. RENDON-DUARTE 3347
which Rendon-Duarte was charged. It noted that the presence
of the guns in the vehicles within easy reach of Rendon-
Duarte was probative of absence of mistake as well as plan.
We review the district court’s evidentiary rulings for abuse of
discretion, considering whether the lower court based its deci-
sion on relevant factors and whether there was a clear error
of judgment. United States v. Alvarez, 358 F.3d 1194, 1205
(9th Cir. 2004).
[2] Rendon-Duarte argues that the prior-act testimony was
improperly admitted because “there is no ‘logical connection’
between the crime to be proved and the prior bad acts other
then [sic] propensity to possess guns, an impermissible pur-
pose.” We have held that “the government . . . bears the bur-
den of proving a logical connection between appellant’s
purported involvement in the previous [act] and a material
fact at issue in the crime with which he was charged.” United
States v. Mayans, 17 F.3d 1174, 1183 (9th Cir. 1994). The
material fact at issue here was whether Rendon-Duarte had
knowledge of and intent to possess the weapons found in his
vehicle. The evidence of the prior acts established only that
weapons were found in the cars he drove or rode in. The gov-
ernment’s reliance on United States v. Jernigan, 341 F.3d
1273 (11th Cir. 2003), is misplaced. There, the court stated:
[T]he caselaw in this and other circuits establishes
clearly the logical connection between a convicted
felon’s knowing possession of a firearm at one time
and his knowledge that a firearm is present at a sub-
sequent time (or, put differently, that his possession
at the subsequent time is not mistaken or accidental.)
341 F.3d at 1281 (emphasis added). Because there
was no evidence that Rendon-Duarte had knowing
possession of the weapons at issue here, the admis-
sion of the prior-act testimony was an abuse of dis-
cretion.
[3] The error was harmless, however, in light of the over-
whelming evidence of Rendon-Duarte’s guilt. The officers’
3348 UNITED STATES v. RENDON-DUARTE
testimony established that Rendon-Duarte purchased a firearm
from Dollison, placed the firearm in his waistband, returned
to his vehicle, and sat down in the front passenger seat. When
police stopped the car a few minutes later, they found two
firearms under the floorboards in front of the passenger-side
seat. Rendon-Duarte gave the officers a false name and birth
date, and he sought to persuade his girlfriend to falsely claim
that the guns were hers. In light of this uncontradicted evi-
dence, it is more probable than not that any error did not
materially affect the verdict. See United States v. Morales,
108 F.3d 1031, 1040 (9th Cir. 1997).
II.
At sentencing, the district judge accepted the PSR and its
recommendation of a base offense level of 20 without objec-
tion. The PSR arrived at this level by classifying Rendon-
Duarte’s prior Alaska conviction for Assault in the Third
Degree as a “crime of violence” under section 4B1.2(a) of the
Sentencing Guidelines. The PSR included a factual descrip-
tion of the conduct underlying the prior conviction, but it did
not cite the Alaska statute. Rendon-Duarte argues Assault in
the Third Degree under Alaska law does not qualify as a
“crime of violence” under the Guidelines and that the district
judge committed plain error when he relied solely on the facts
recited in the PSR to determine Rendon-Duarte’s prior con-
viction was a “crime of violence.”
[4] Rendon-Duarte did not challenge the PSR at sentencing,
and thus review of the district judge’s application of the
Guidelines is for plain error. Fed. R. Crim. P. 52(b); United
States v. Ortiz, 362 F.3d 1274, 1278 (9th Cir. 2004). “There
must be an ‘error’ that is ‘plain’ and that ‘affect[s] substantial
rights.’ ” United States v. Olano, 507 U.S. 725, 732 (1993).
Rendon-Duarte bears the burden of demonstrating that the
error prejudiced his rights. Id. at 734. Further, “the court
should not exercise [its discretion to correct the error] unless
the error seriously affect[s] the fairness, integrity or public
UNITED STATES v. RENDON-DUARTE 3349
reputation of judicial proceedings.” Id. at 732 (internal quota-
tion marks and citation omitted).
The Guidelines define a “crime of violence” as
any offense under federal or state law, punishable by
imprisonment for a term exceeding one year, that (1)
has as an element the use, attempted use, or threat-
ened use of physical force against the person of
another, or (2) . . . involves conduct that presents a
serious potential risk of physical injury to another.
U.S. Sentencing Guidelines Manual § 4B1.2(a)(1) & (2)
(2005). In determining whether the Alaska statute qualifies,
we use the categorical approach announced in Taylor v.
United States, 495 U.S. 575, 602 (1990). Under the categori-
cal approach a court must “look only to the fact of conviction
and the statutory definition of the prior offense” when deter-
mining whether the offense qualifies under a definition in the
Guidelines. Taylor, 495 U.S. at 602.
[5] The Government failed to provide the statute of convic-
tion, and the judge relied solely on the facts recited in the
PSR. This was error. See United States v. Pimentel-Flores,
339 F.3d 959, 967 (9th Cir. 2003) (“Under Taylor . . . the
actual statute of prior conviction must be supplied to the dis-
trict court by the government whether or not anyone objects
to its absence.”). In Pimentel-Flores, we held it was plain
error for the district court to rely solely on the factual descrip-
tion in the PSR. Id. at 968. The district judge committed the
same error in this case, and under Pimentel-Flores this error
was plain. See id.
[6] While we conclude that the district court committed
plain error, we find that the error did not affect Rendon-
Duarte’s substantial rights. Rendon-Duarte admits that his
conviction was for violation of Alaska Statute section
11.41.220(a)(1)(A), which provides:
3350 UNITED STATES v. RENDON-DUARTE
(a) A person commits the crime of assault in the
third degree if that person (1) recklessly (A) places
another person in fear of imminent serious physical
injury by means of a dangerous instrument.
Rendon-Duarte does not argue that the full range of con-
duct criminalized by the state statute exceeds the scope of the
Guidelines. Cf. United States v. Baza-Martinez, 464 F.3d
1010, 1014 (9th Cir. 2006). On the contrary, his argument is
that a violation of the state statute does not satisfy the defini-
tion of crime of violence under section 4B1.2(a)(1). Under
that subsection of the Guidelines, a crime of violence must
have an element of the use of physical force against another
person. The state statute, he argues, requires only reckless-
ness, not actual use or threat of force.
[7] The argument overlooks subsection (2) of section
4B1.2(a), which defines crime of violence in the alternative as
“any offense . . . that . . . involves conduct that presents a seri-
ous potential risk of physical injury to another.” This closely
tracks the Alaska statute’s description of conduct “plac[ing]
another person in fear of imminent serious physical injury by
means of a dangerous instrument.”1 See United States v. Bai-
ley, 139 F.3d 667, 668 (9th Cir. 1998). Whether the conduct
was reckless or not has no bearing on the applicability of sub-
section (2) of the Guidelines.
[8] Because a conviction under the Alaska statute qualifies
clearly as a crime of violence under section 4B1.2(a)(2), the
district court’s error did not substantially affect Rendon-
Duarte’s rights.
AFFIRMED.
1
Dangerous instrument is defined as “any deadly weapon or anything
that, under the circumstances in which it is used, attempted to be used, or
threatened to be used, is capable of causing death or serious physical inju-
ry.” Alaska Stat. § 11.81.900(b)(15)(A).