United States v. Narvaez-Gomez

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, No. 05-50501

v.

 D.C. No.

CR-04-02781-BTM

LUIS NARVAEZ-GOMEZ, aka Manuel

Gomez-Feliz, OPINION

Defendant-Appellant.



Appeal from the United States District Court

for the Southern District of California

Barry T. Moskowitz, District Judge, Presiding

Argued and Submitted

December 8, 2006—Pasadena, California

Filed June 6, 2007

Before: Robert R. Beezer, Kim McLane Wardlaw, and

Richard A. Paez, Circuit Judges.

Opinion by Judge Beezer

6845

UNITED STATES v. NARVAEZ-GOMEZ 6849

COUNSEL

James Fife, Federal Defenders of San Diego, Inc., San Diego,

California, for the defendant-appellant.

Roger W. Haines, Jr., and Michael J. Crowley, Assistant

United States Attorneys, for the plaintiff-appellee.

OPINION

BEEZER, Circuit Judge:

Defendant Luis Narvaez-Gomez (“Gomez”), also known as

Manuel Gomez-Felis, appeals his conviction and sentence for

illegal re-entry after removal in violation of 8 U.S.C. § 1326.

Gomez contends that the district court improperly (1) denied

his motion to suppress post-Miranda statements, (2) excluded

his cross-examination of government witnesses regarding

official record-keeping, (3) imposed a 16-level enhancement

for committing a prior crime of violence and (4) imposed a

sentence greater than two years in violation of Apprendi v.

New Jersey, 530 U.S. 466 (2000).

We have jurisdiction pursuant to 18 U.S.C. § 3742 and 28

U.S.C. § 1291. We affirm the conviction, vacate the sentence

and remand for re-sentencing.

I

Gomez was born in Mexico and was deported from the

United States to Mexico numerous times between 1990 and

2004. Early on September 24, 2005, city police detained

Gomez in a public park in California for violating a city ordi-

nance that prohibits smoking in the park. Based on Gomez’s

responses to their questions and his lack of identifying infor-

mation, the police called the United States Border Patrol for

assistance in ascertaining Gomez’s identity.

6850 UNITED STATES v. NARVAEZ-GOMEZ

Agent Jill Badousek responded to the call and arrived in the

park at approximately 9:45 a.m. She asked Gomez his name,

place of birth and whether he had any documents to show his

legal presence in the United States. Gomez responded that his

name was Pedro Gomez, that he was born in Mexico and that

he had a legal permanent resident card at his house. Badousek

conducted a records check. The check showed no immigration

documents for a “Pedro Gomez.” Badousek told Gomez of the

negative results and asked if he wanted to be taken to his

house to retrieve immigration documents. Gomez admitted

that he did not have any such documents.

Badousek arrested Gomez, handcuffed him and put him in

the back seat of her vehicle. Without giving Gomez a

Miranda warning, Badousek asked whether he had ever been

arrested by Border Patrol and whether he had ever been

deported. Gomez answered both questions in the affirmative.

Badousek brought Gomez to the Border Patrol station, where

he was placed in a holding cell.

At approximately 2:00 p.m., Border Patrol agent Mark

Hopkins interviewed Gomez with Badousek present. Hopkins

first informed Gomez that he would be processed criminally

rather than administratively and that he faced potential crimi-

nal charges. Hopkins then administered a Miranda warning

and confirmed that Gomez understood his rights. Gomez

waived his rights and indicated that he wanted to make a

statement without an attorney present.

Hopkins questioned Gomez regarding (1) name, citizenship

and birthplace, (2) whether Gomez had previously been

deported, (3) where Gomez had entered the United States

before that deportation, (4) whether Gomez left the United

States after being ordered deported, (5) whether Gomez ever

applied for permission to enter the United States, (6) whether

Gomez had any documentation allowing him to enter or

remain in the United States and (7) when Gomez most

recently entered the United States. Gomez stated that he was

UNITED STATES v. NARVAEZ-GOMEZ 6851

a citizen of Mexico and had been previously deported. He

admitted having no permission to enter the United States and

no documentation allowing him to be in the United States.

Gomez was charged with violating 8 U.S.C. § 1326, which

prohibits an alien from re-entering the United States after

being deported or removed. He moved to suppress all of his

statements to the Border Patrol agents. After an evidentiary

hearing, the district court determined that only Gomez’s state-

ments to Badousek in her vehicle were inadmissible.

The government brought several motions in limine includ-

ing a motion to prohibit references to document destruction

and poor record-keeping by immigration officials. The district

court granted the motion in part, allowing Gomez to question

the completeness of his own immigration files. The court

excluded cross-examination by Gomez suggesting that he had

undocumented permission to enter the United States, unless

he laid a foundation or made a proffer that he in fact applied

for or received permission.

Gomez was convicted in March 2005 and sentenced on

June 7, 2005. The district court applied a 16-level enhance-

ment under the Sentencing Guidelines based on the finding

that Gomez’s prior conviction for shooting at an inhabited

dwelling constituted a crime of violence under the guidelines.

Gomez received a sentence of 96 months imprisonment. He

timely appealed the judgment and sentence on June 15, 2005.

II

Gomez argues that the district court erred in denying his

motion to suppress the statements he made after receiving

Miranda warnings. We review de novo a district court’s deci-

sion to admit statements that may have been obtained in viola-

tion of Miranda. United States v. Rodriguez-Rodriguez, 393

F.3d 849, 855 (9th Cir. 2005). Underlying factual findings are

reviewed for clear error. Id.

6852 UNITED STATES v. NARVAEZ-GOMEZ

[1] A defendant’s post-Miranda statements may be inad-

missible if law enforcement officers use a two-step interroga-

tion process. See Missouri v. Seibert, 542 U.S. 600, 617

(2004). A two-step interrogation involves eliciting an

unwarned confession, administering the Miranda warnings

and obtaining a waiver of Miranda rights, and then eliciting

a repeated confession. See id. at 609-10. If the interrogators

deliberately employ the two-step strategy, the district court

must suppress postwarning statements unless the interrogators

take curative measures to apprise the defendant of his rights;

if the two-step method is not deliberate, the postwarning state-

ments are admissible if voluntarily made. Id. at 622 (Ken-

nedy, J., concurring); see also United States v. Williams, 435

F.3d 1148, 1157-58 (9th Cir. 2006) (Justice Kennedy’s con-

currence in Seibert is the Court’s holding because it is narro-

west grounds with which majority of the Court would agree).

[2] Which appellate standard we use to review a district

court’s deliberateness finding is a matter of first impression.

We determine that a deliberateness finding is appropriately

reviewed as a factual finding for clear error. Cf. United States

v. Mashburn, 406 F.3d 303, 306 (4th Cir. 2005) (in case

involving pre- and postwarning statements, only voluntariness

determination was reviewed de novo). Employing the clear

error standard is consistent with our review of similar district

court determinations as to credibility and deliberateness. See

United States v. Celestine, 324 F.3d 1095, 1101 (9th Cir.

2003) (credibility determinations are reviewed for clear

error); Collazo v. Estelle, 940 F.2d 411, 416 (9th Cir. 1991)

(reviewing “whether the defendant’s mind was overborne—

i.e., was his waiver knowing and intelligent—for clear error”

(internal quotations omitted)); United States v. Kimball, 884

F.2d 1274, 1278 & n.3 (9th Cir. 1989) (whether government

deliberately induced defendant to make incriminating state-

ments is reviewed for clear error). Even if a deliberateness

finding is not clearly erroneous, we review de novo the ulti-

mate determination that a defendant’s statements were volun-

tary. Williams, 435 F.3d at 1151, 1158.

UNITED STATES v. NARVAEZ-GOMEZ 6853

[3] Deliberateness may be found if “objective evidence and

any available subjective evidence, such as an officer’s testi-

mony, support an inference that the two-step interrogation

procedure was used to undermine the Miranda warning.” Id.

at 1158. Objective evidence includes “the timing, setting and

completeness of the prewarning interrogation, the continuity

of police personnel and the overlapping content of the pre-

and postwarning statements.” Id. at 1159 (citing Seibert, 542

U.S. at 615).

[4] The district court concluded that agents Hopkins and

Badousek did not deliberately employ the two-step method

when interrogating Gomez.1 The court properly considered

the objective and subjective evidence of deliberateness

including the informal setting and brief nature of Badousek’s

prewarning interrogation, Hopkins’ involvement only during

the postwarning interrogation, and the lack of any reference

to the prewarning statements during the more comprehensive

postwarning interrogation. The change in setting and time

span of approximately four hours between statements also

indicate a lack of deliberateness. Cf. United States v.

Carrizales-Toledo, 454 F.3d 1142, 1152 (10th Cir. 2006)

(moving defendant to different vehicle and waiting for other

agents to arrive provided sufficient time delay and change in

setting). We conclude that the district court correctly deter-

mined that Badousek and Hopkins did not deliberately

employ a two-step interrogation.

1

Gomez asserts that the district court did not make a factual finding as

to deliberateness. He argues that the district court would have been “amaz-

ingly prescient” to make such a finding because our Williams decision did

not issue until the following year. Contrary to Gomez’s assertion, the dis-

trict court explicitly found that “unlike the Seibert case, there is nothing

here where the officers try to get statements from him without Miranda

warnings and then somehow use it to obtain statements with Miranda

warnings.” The district court was also aware of the need to address delib-

erateness because the government referred to the Supreme Court’s deliber-

ateness rule from Seibert, 542 U.S. at 622 (Kennedy, J., concurring),

during the motions hearing.

6854 UNITED STATES v. NARVAEZ-GOMEZ

Gomez does not dispute that he voluntarily made his post-

warning statements. The district court properly denied

Gomez’s motion to suppress the statements.

III

Gomez argues that the district court committed constitu-

tional error by prohibiting him from cross-examining govern-

ment witnesses regarding official record-keeping. We review

de novo the question “[w]hether limitations on cross-

examination are so severe as to violate the Confrontation

Clause.” United States v. Shryock, 342 F.3d 948, 979 (9th Cir.

2003) (citing United States v. Adamson, 291 F.3d 606, 612

(9th Cir. 2002)).

[5] When a defendant is charged under 8 U.S.C. § 1326, a

district court may exclude irrelevant evidence of INS record-

keeping procedures. Rodriguez-Rodriguez, 393 F.3d at 856. A

defendant who does not assert that he applied for admission

to the United States may not elicit testimony about record-

keeping that suggests his application materials may have been

lost. See id.

[6] Gomez argues that he did not have to claim he applied

for admission in order to cross-examine government wit-

nesses on record-keeping procedures because the prosecution

“opened the door” on the issue. Gomez relies on Badousek’s

testimony that Gomez stated before his arrest that he had doc-

umentation of legal status at home. This argument ignores

Badousek’s further testimony that Gomez recanted the state-

ment after the records check indicated no legal status. The

district court provided ample opportunity for Gomez to make

a proffer that he applied for admission or received permission

to enter the United States. Gomez declined to make any prof-

fer or otherwise put his legal status in dispute.

[7] We conclude that the district court properly excluded

evidence of official record-keeping procedures as irrelevant.

UNITED STATES v. NARVAEZ-GOMEZ 6855

IV

Gomez argues that the district court improperly applied a

16-level enhancement under the United States Sentencing

Guidelines (“U.S.S.G.”) based on the determination that his

prior conviction for violating California Penal Code section

246 was a crime of violence under U.S.S.G. § 2L1.2. We

agree. We review de novo a district court’s determination that

a prior conviction is a “crime of violence” under the sentenc-

ing guidelines. Rodriguez-Rodriguez, 393 F.3d at 856.

A

[8] The relevant Sentencing Guidelines definition of a

“crime of violence” is a “federal, state, or local law that has

as an element the use, attempted use, or threatened use of

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

§ 2L1.2, application note 1(B)(iii).

We first apply the categorical approach set forth in Taylor

v. United States, 495 U.S. 575 (1990), to determine whether

a prior conviction qualifies as a crime of violence under

U.S.S.G. § 2L1.2(b)(1)(A)(ii). United States v. Gonzalez-

Perez, 472 F.3d 1158, 1160 (2007). In doing so, we “look

only to the fact of conviction and the statutory definition of

the prior offense.” Taylor, 495 U.S. at 602.

[9] California Penal Code section 246 provides that a “per-

son who shall maliciously and willfully discharge a firearm at

an inhabited dwelling house, occupied building, occupied

motor vehicle, occupied aircraft, inhabited housecar, . . . or

inhabited camper . . . is guilty of a felony.” We determined

in United States v. Lopez-Torres that a violation of section

246 always involves a threatened use of physical force against

the person of another and thus categorically qualifies as a

crime of violence. See 443 F.3d 1182, 1184-85 (9th Cir.

2006). We must now decide whether our recent en banc opin-

ion in Fernandez-Ruiz v. Gonzales, 466 F.3d 1121 (9th Cir.

6856 UNITED STATES v. NARVAEZ-GOMEZ

2006) (en banc), abrogates Lopez-Torres such that section 246

is no longer a categorical crime of violence. We conclude that

Fernandez-Ruiz does abrogate Lopez-Torres.

[10] Fernandez-Ruiz limits categorical crimes of violence

to offenses committed through intentional use of force against

the person of another rather than reckless or grossly negligent

conduct. See 466 F.3d at 1132. Although Fernandez-Ruiz

addressed a “crime of violence” under 18 U.S.C. § 16(a), the

relevant definitions under § 16(a) and U.S.S.G. § 2L1.2 are

identical.2 Compare 18 U.S.C. § 16(a) (crime of violence

includes “an offense that has as an element the use, attempted

use, or threatened use of physical force against the person . . .

of another”) with U.S.S.G. § 2L1.2, application note 1(B)(iii)

(crime of violence includes “any offense . . . that has as an

element the use, attempted use, or threatened use of physical

force against the person of another”). We conclude that the

holding in Fernandez-Ruiz applies to the relevant “crime of

violence” definition under § 2L1.2 of the sentencing guidelines.3

We next address whether California Penal Code section

246 is a categorical crime of violence in light of Fernandez-

Ruiz. The language of section 246 does not expressly include

2

The government argues that the definitions are different, but the cases

it cites involved enumerated crimes in the “crime of violence” definition

under § 2L1.2 that are not relevant here. See, e.g., United States v. Diaz-

Argueta, 447 F.3d 1167, 1170 (9th Cir. 2006) (rejecting argument that

only aggravated felonies qualify as crimes of violence); Valencia v. Gon-

zales, 439 F.3d 1046, 1053 (9th Cir. 2006) (noting reference to statutory

rape in § 2L1.2 commentary).

3

The government argues for the opposite conclusion, relying on our

decisions in Lopez-Torres and United States v. Cortez-Arias, 403 F.3d

1111 (9th Cir. 2005). We reject this argument. Those cases preceded the

controlling en banc decision in Fernandez-Ruiz and did not address the

intent element of section 246. See Miller v. Gammie, 335 F.3d 889, 899-

900 (9th Cir. 2003) (en banc) (panel may depart from circuit precedent

when intervening higher authority has “undercut the theory or reasoning

underlying the prior circuit precedent in such a way that the cases are

clearly irreconcilable”).

UNITED STATES v. NARVAEZ-GOMEZ 6857

reckless conduct, but we also consider the interpretation of

statutory language in judicial opinions to determine categori-

cal reach. See Ortega-Mendez v. Gonzales, 450 F.3d 1010,

1016 (9th Cir. 2006).

[11] California courts characterize section 246 as a general

intent crime. See People v. Overman, 24 Cal. Rptr. 3d 798,

806 (Cal. Ct. App. 2005). A violation includes discharging a

firearm “in such close proximity to the target that [a defen-

dant] shows a conscious indifference to the probable conse-

quence that one or more [projectiles] will strike the target.”

Id. at 805. The “conscious indifference” intent element is

equivalent to recklessness. See Fernandez-Ruiz, 466 F.3d at

1130 (recklessness is awareness and conscious disregard of

risk of possible injury); People v. Chavira, 83 Cal. Rptr. 851,

855 (Cal. Ct. App. 1970) (“reckless disregard of probable

consequences” is sufficient intent to constitute violation of

section 246). The reckless act needs only be directed toward

the dwelling or building; “it is not strictly necessary . . . that

defendant’s acts demonstrate a conscious disregard for the life

and safety of others.” In re Daniel R., 24 Cal. Rptr. 2d 414,

418 (Cal. Ct. App. 1993). These state precedents demonstrate

that a violation of section 246 may result from purely reckless

conduct and does not categorically constitute a crime of vio-

lence.

B

[12] When an offense is not a categorical crime of violence,

the sentencing court applies the “modified categorical

approach” and “examine[s] the record for ‘documentation or

judicially noticeable facts that clearly establish that the con-

viction is a predicate conviction for enhancement purposes.’ ”

United States v. Corona-Sanchez, 291 F.3d 1201, 1211 (9th

Cir. 2002) (en banc) (quoting United States v. Rivera-

Sanchez, 247 F.3d 905, 908 (9th Cir. 2001)), superseded on

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

the prior conviction was based on a guilty plea, the sentencing

6858 UNITED STATES v. NARVAEZ-GOMEZ

court’s review is limited “to those documents ‘made or used

in adjudicating guilt’ such as ‘the terms of the charging docu-

ment, the terms of a plea agreement or [the] transcript of [the]

colloquy between the judge and defendant in which the fac-

tual basis for the plea was confirmed by the defendant, or to

some comparable judicial record of this information.’ ”

United States v. Martinez-Martinez, 468 F.3d 604, 606-07

(9th Cir. 2006) (quoting Shepard v. United States, 544 U.S.

13, 20, 26 (2005)).

[13] Gomez argues that the district court erred in relying

only on the abstract of judgment in determining that his prior

offense was a crime of violence under the modified categori-

cal approach. Although Gomez is correct, see United States v.

Navidad-Marcos, 367 F.3d 903, 908-09 (9th Cir. 2004), the

district court did not have the benefit of our Fernandez-Ruiz

decision and did not conduct a complete modified categorical

analysis. We remand for resentencing, particularly for the dis-

trict court to determine under the modified categorical

approach—consistent with Shepard, 544 U.S. at 20, 26—

whether Gomez had the requisite intent when he committed

his prior offense.

V

Gomez contends that the sentence imposed by the district

court violated the Supreme Court’s decision in Apprendi

because the sentence was based on a factual finding that

Gomez was removed subsequent to a conviction for an aggra-

vated felony. This finding subjected Gomez to an increased

maximum sentence of 20 years. See 8 U.S.C. § 1326(b)(2).

Gomez argues that the date of his removal must be admitted

by him or proved to a jury. See Apprendi v. New Jersey, 530

U.S. 466, 490 (2000).

[14] A district court may enhance a sentence under

§ 1326(b) based on a prior conviction even if the fact of con-

viction was not charged in the indictment, submitted to a jury

UNITED STATES v. NARVAEZ-GOMEZ 6859

or proved beyond a reasonable doubt. See Almendarez-Torres

v. United States, 523 U.S. 224, 247 (1998). Our precedent

precludes Gomez’s argument that recent Supreme Court deci-

sions have overruled Almendarez-Torres. See United States v.

Covian-Sandoval, 462 F.3d 1090, 1096-97 (9th Cir. 2006)

(citing Ninth Circuit cases that rejected same argument).

Gomez does not dispute that the fact of his removal in 1996

was proved to a jury. The district court permissibly found the

fact of a prior conviction to that removal. See United States

v. Martinez-Rodriguez, 472 F.3d 1087, 1094 (9th Cir. 2007)

(“The district court did not need to determine the date of Mar-

tinez’s deportation because the jury necessarily found that

Martinez was deported after his prior convictions.”); cf.

Covian-Sandoval, 462 F.3d at 1097-98 (district court imper-

missibly found fact of second, subsequent removal because

defendant admitted only first, earlier removal).

REVERSED in part, AFFIRMED in part, and

REMANDED for resentencing.