United States v. Snellenberger

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,  No. 06-50169

Plaintiff-Appellee, D.C. No.

v. CR-05-00064-AHS

MICHAEL LEE SNELLENBERGER, aka  ORDER

Michael Lee Cutter, Michael Lee AMENDING

Davidson, Robert Eugene Frehly, OPINION AND

Cutter Snellenberger, “Cutter”, AMENDED

Defendant-Appellant.

 OPINION

Appeal from the United States District Court

for the Central District of California

Alicemarie H. Stotler, District Judge, Presiding

Argued and Submission Deferred February 6, 2007

Submitted February 13, 2007

Pasadena, California

Filed April 3, 2007

Amended July 10, 2007

Before: Warren J. Ferguson, Eugene E. Siler, Jr.,* and

Michael Daly Hawkins, Circuit Judges.

Opinion by Judge Ferguson

*The Honorable Eugene E. Siler, Jr., Senior United States Circuit Judge

for the Sixth Circuit, sitting by designation.

8257

UNITED STATES v. SNELLENBERGER 8259

COUNSEL

Gail Ivens, Deputy Federal Public Defender, Los Angeles,

California, for the defendant-appellant.

8260 UNITED STATES v. SNELLENBERGER

Anne C. Gannon, Assistant United States Attorney, Santa

Ana, California, for the plaintiff-appellee.

ORDER

The Opinion filed on April 3, 2007, slip op. page 3839, and

appearing at 480 F.3d 1187 (9th Cir. 2007), is amended, and

the Concurrence by Judge Hawkins, filed together with the

Opinion, is withdrawn.

The amendments to the Opinion are as follows:

At slip op. page 3842, in the first paragraph, the second and

third sentences are deleted and the following is substituted in

their place:

Having previously noted that a minute order is “not

a judicial record that can be relied upon” to establish

the nature of a prior conviction, United States v.

Diaz-Argueta, 447 F.3d 1167, 1169 (9th Cir. 2006),

we now explicitly so hold.

At slip op. page 3847, line 9: footnote “5” is deleted.

At slip op. page 3848, in the first indented paragraph, line

1: “In sum, any inquiry beyond” is substituted for “Any

inquiry beyond”.

At slip op. page 3848, in the first indented paragraph, line

4: “Shepard, 544 U.S. at 23 n.4” is substituted for “Id. at 23

n.4”.

At slip op. page 3848, between the first incomplete para-

graph (ending “For this same reason, a minute order cannot

establish the factual elements underlying a plea to a prior

offense.”) and the first indented paragraph (beginning “In

UNITED STATES v. SNELLENBERGER 8261

sum, any inquiry beyond the language of the convicting stat-

ute . . . .”), the following is inserted:

The government argues that our holding means

this court will treat minute orders differently from

abstracts of judgments, despite the documents’ simi-

larities. The government relies on a line of pre-

Shepard cases, such as United States v. Velasco-

Medina, 305 F.3d 839, 852 (9th Cir. 2002); United

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

Cir. 2002) (en banc); and United States v. Rodriguez-

Rodriguez, 393 F.3d 849, 857 (9th Cir. 2005). Our

post-Shepard cases, however, have rejected the use

of abstracts of judgments in conducting the modified

categorical approach. See United States v. Narvaez-

Gomez, ___ F.3d ___, 2007 WL 1614778, *5 (9th

Cir. 2007) (citing United States v. Navidad-Marcos,

367 F.3d 903, 908-09 (9th Cir. 2004)); see also Ruiz-

Vidal v. Gonzales, 473 F.3d 1072, 1078-79 (9th Cir.

2007); Martinez-Perez v. Gonzales, 417 F.3d 1022,

1029 (9th Cir. 2005).5

With these amendments, the petition for panel rehearing is

DENIED. No further petitions for panel rehearing may be

filed.

5

Nothing in our holding implies that either minute orders or abstracts of

judgments are “categorically unreliable.” United States v. Sandoval-

Sandoval, ___ F.3d ___, 2007 WL 1490353, *1 (9th Cir. 2007). We recog-

nize, for example, that an abstract of judgment may be used to prove the

“fact of conviction” under Taylor. 495 U.S. at 601; see United States v.

Valle-Montalbo, 474 F.3d 1197, 1201-02 (9th Cir. 2007). Nonetheless,

neither abstracts of judgments nor minute orders may be considered under

the modified categorical approach defined in Shepard. 544 U.S. at 26.

8262 UNITED STATES v. SNELLENBERGER

OPINION

FERGUSON, Circuit Judge:

This case presents the question of whether a minute order,

coupled with a charging document, may be sufficient under

Shepard v. United States, 544 U.S. 13 (2005), to establish a

prior crime of violence for purposes of sentence enhancement.

Having previously noted that a minute order is “not a judicial

record that can be relied upon” to establish the nature of a

prior conviction, United States v. Diaz-Argueta, 447 F.3d

1167, 1169 (9th Cir. 2006), we now explicitly so hold.

FACTUAL AND PROCEDURAL BACKGROUND

In March 2005, Michael Lee Snellenberger

(“Snellenberger”) was indicted for unarmed bank robbery

pursuant to 18 U.S.C. § 2113(a). He pled guilty to the charge

in October of that year. At sentencing, the government

requested a sentence enhancement under the United States

Sentencing Guidelines Manual (“Guidelines” or “U.S.S.G.”),

based on Snellenberger’s status as a “career offender.”

U.S.S.G. §§ 4B1.1, 4B1.2 (2002). In 1991, Snellenberger had

pled nolo contendere to burglary under section 459 of the Cal-

ifornia Penal Code (“Cal. Penal Code § 459” or “§ 459”). The

government asserted that this prior crime qualified as one of

violence under the Guidelines.

The District Court agreed and determined that, in combina-

tion with another prior offense,1 the § 459 conviction qualified

Snellenberger as a career offender. This finding raised his

guidelines offense level from 19 to 29 and increased the advi-

sory guideline range for his sentence from 63-78 months to

1

Snellenberger does not contest that he has a history of one prior offense

that falls under U.S.S.G. §§ 4B1.1, 4B1.2. He challenges only the District

Court’s finding that his 1991 conviction should count as a second prior

felony.

UNITED STATES v. SNELLENBERGER 8263

151-188 months. The court imposed a sentence of 151 months

imprisonment, a special assessment of $100, and a three year

term of supervised release with various conditions. Snellen-

berger has appealed the sentencing court’s reliance on the

career offender provisions of U.S.S.G. § 4B1.2.

STANDARD OF REVIEW

We review de novo the lower court’s “interpretation and

application” of the Sentencing Guidelines. United States v.

Franklin, 235 F.3d 1165, 1168 (9th Cir. 2000); see United

States v. Cantrell, 433 F.3d 1269, 1279 (9th Cir. 2006) (no

change after United States v. Booker, 543 U.S. 220 (2005)).

We also review de novo the determination of the defendant’s

career offender status. United States v. Kelly, 422 F.3d 889,

891-92 (9th Cir. 2005).

DISCUSSION

[1] A court may deem a defendant a career offender eligible

for a sentence enhancement under the Guidelines if the defen-

dant has “at least two prior felony convictions of either a

crime of violence or a controlled substance offense,” and was

at least eighteen years old at the time he or she committed a

third felony that was also a “crime of violence or a controlled

substance offense.” U.S.S.G. § 4B1.1(a), (b). 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 [ ] has as an element the use, attempted use, or

threatened use of physical force against the person of another,

or [ ] is burglary of a dwelling . . .” or another offense enu-

merated or described in this provision. U.S.S.G. § 4B1.2(a)

(emphasis added). The dispute in this case focuses on whether

Snellenberger’s 1991 burglary conviction qualifies as bur-

glary of a dwelling.2

2

On appeal, Snellenberger does not contest the categorization of the

instant offense as a crime of violence.

8264 UNITED STATES v. SNELLENBERGER

[2] Burglary under Cal. Penal Code § 459 is defined more

broadly than burglary of a dwelling. The California statute

includes, inter alia, burglary of a shop, warehouse, barn, sta-

ble, train car, aircraft, mine, or underground portion of a

mine. Cal. Penal Code § 459.3 Therefore, Snellenberger’s

§ 459 conviction does not necessarily imply that he pled to

burglary of a dwelling, and it cannot provide the basis for

concluding that he is a career offender qualified for a sentence

enhancement. See, e.g., Franklin, 235 F.3d at 1170 (“We have

previously and unequivocally held that California Penal Code

section 459 is far too sweeping to satisfy the Taylor definition

of generic burglary.”) (referring to definition even broader

than “crime of violence” under U.S.S.G. § 4B1.2(a)).

In Taylor v. United States, 495 U.S. 575, 600 (1990) (inter-

preting 18 U.S.C. § 924(e) but relying on broader rationale),

the Supreme Court held that sentencing courts must generally

assess prior convictions using a “formal categorical approach,

looking only to the statutory definitions of the prior offenses,

and not to the particular facts underlying those convictions.”

See also United States v. Becker, 919 F.2d 568, 570 (9th Cir.

1990) (applying Taylor rule concerning Armed Career Crimi-

nal Act to section 4B1.1 of the Sentencing Guidelines). The

Court explained that a fact-based approach would contravene

Congressional intent and create “practical difficulties and

potential unfairness,” as it could lead to mini-trials concerning

the factual bases for prior convictions. Taylor, 495 U.S. at

3

The complete statutory definition of burglary is as follows:

Every person who enters any house, room, apartment, tenement,

shop, warehouse, store, mill, barn, stable, outhouse or other

building, tent, vessel, . . . floating home . . . railroad car, locked

or sealed cargo container . . . trailer coach . . . any house car . . .

inhabited camper . . . vehicle as defined by the Vehicle Code,

when the doors are locked, aircraft . . . or mine or any under-

ground portion thereof, with intent to commit grand or petit lar-

ceny or any felony is guilty of burglary. . . .

Cal. Penal Code § 459.

UNITED STATES v. SNELLENBERGER 8265

601. Taylor did provide an exception to the categorical rule

for “a narrow range of cases where . . . the charging paper and

jury instructions actually required the jury to find all the ele-

ments of [the narrower, qualifying offense] in order to con-

vict.” Id. at 602; see Shepard, 544 U.S. at 17 (describing

Taylor exception). Where the jury instructions in combination

with the charging document demonstrated that the jury neces-

sarily had to find all the factual elements of the qualifying

offense, the sentencing court could “go beyond the mere fact

of conviction” to reach the logical conclusion that the defen-

dant had committed the qualifying offense. Taylor, 495 U.S.

at 602.

[3] In Shepard, 544 U.S. at 19, the Supreme Court applied

the rationale of Taylor to a prior conviction resulting from a

plea. Shepard held that in pleaded cases, the “closest analog”

to jury instructions is “the statement of the factual basis for

the charge, shown by a transcript of plea colloquy or by writ-

ten plea agreement presented to the court, or by a record of

comparable findings of fact adopted by the defendant upon

entering the plea.” Id. at 20 (internal citation omitted). The

Court ruled that a sentencing court’s inquiry into the facts of

a prior crime cannot include consideration of complaint appli-

cations or police reports, and instead “is generally limited to

examining the statutory definition, charging document, writ-

ten plea agreement, transcript of plea colloquy, and any

explicit factual finding by the trial judge to which the defen-

dant assented.” Id. at 16.

In this case, Snellenberger maintains that the government

has provided insufficient evidence to establish that his 1991

burglary plea under Cal. Penal Code § 459 involved a crime

of violence. The government submitted at sentencing copies

of two documents from the convicting court: an information

and a minute order. The information lists factual allegations

and specifically charges Snellenberger with, inter alia, first

degree residential burglary in violation of Cal. Penal Code

§ 459. Under California law, burglary in the first degree nec-

8266 UNITED STATES v. SNELLENBERGER

essarily encompasses all factual elements of “burglary of a

dwelling,” so if Snellenberger had pled guilty to this charge,

he would necessarily have admitted to burglary of a dwelling.

See Cal. Penal Code §§ 450, 460(a), (b). However, like any

charging document, the information is insufficient alone to

prove the facts to which Snellenberger admitted. See Ruiz-

Vidal v. Gonzales, 473 F.3d 1072, 1078 (9th Cir. 2007);

United States v. Parker, 5 F.3d 1322, 1327 (9th Cir. 1993).

The government therefore relies heavily on the minute order,

which states that Snellenberger entered a nolo contendere plea

to “459 Penal Code (first degree).”

[4] Snellenberger maintains that the sentencing court

should not have considered the minute order. We agree. To

establish that a defendant committed a prior crime of vio-

lence, the government must provide the sentencing court with

“the terms of a plea agreement or transcript of [a] colloquy

between [the] judge and defendant in which the factual basis

for the plea was confirmed by the defendant, or [ ] some com-

parable judicial record of this information.” Shepard, 544

U.S. at 26. As we previously recognized in Diaz-Argueta, 447

F.3d at 1169, a minute order is not a comparable judicial

record under Shepard.4

[5] A minute order is not sufficient because it does not con-

tain “the factual basis for the plea [as] confirmed by the

defendant.” Shepard, 544 U.S. at 26. On the contrary, it con-

tains no facts and no indication that it has even been shown

to the defendant. The one-page form simply provides a tiny

space in which to list the statute under which the defendant

has been convicted. Such a document cannot be considered

4

We decided in Diaz-Argueta, 447 F.3d at 1169, that, under Shepard,

a minute order of the state court was “not a judicial record that c[ould] be

relied upon to prove” the felony status of a prior conviction under

U.S.S.G. § 2L1.2(b)(1)(A)(ii), but that Diaz-Argueta’s particular prior

offense was a felony as a matter of statutory interpretation. Ultimately, we

remanded the case because the sentencing court had failed to consider any

of the factors of 18 U.S.C. § 3553(a). Id. at 1170, 1171.

UNITED STATES v. SNELLENBERGER 8267

“comparable” to “a plea agreement or transcript of [a] collo-

quy between the judge and the defendant.” Id.

[6] The government asserts that California evidentiary law

treats minute orders as accurate in the absence of substantial

evidence to the contrary, but this argument misses the point.

See Shepard, 544 U.S. at 22-23 (rejecting argument that docu-

ments could be considered reliable if uncontradicted). The

question is not whether the documents are admissible under

general rules of evidence, but whether they are adequate to

meet the government’s evidentiary burden of clearly and

unequivocally establishing the facts underlying a prior con-

viction so as to justify the enhancement of a criminal sen-

tence. As the Supreme Court noted when ruling that

complaints and police reports could not be considered, the

defendant was never asked if the information contained in the

reports was true or accurately reflected his plea. Id. at 18. For

this same reason, a minute order cannot establish the factual

elements underlying a plea to a prior offense.

The government argues that our holding means this court

will treat minute orders differently from abstracts of judg-

ments, despite the documents’ similarities. The government

relies on a line of pre-Shepard cases, such as United States v.

Velasco-Medina, 305 F.3d 839, 852 (9th Cir. 2002); United

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

2002) (en banc); and United States v. Rodriguez-Rodriguez,

393 F.3d 849, 857 (9th Cir. 2005). Our post-Shepard cases,

however, have rejected the use of abstracts of judgments in

conducting the modified categorical approach. See United

States v. Narvaez-Gomez, ___ F.3d ___, 2007 WL 1614778,

*5 (9th Cir. 2007) (citing United States v. Navidad-Marcos,

367 F.3d 903, 908-09 (9th Cir. 2004)); see also Ruiz-Vidal v.

Gonzales, 473 F.3d 1072, 1078-79 (9th Cir. 2007); Martinez-

Perez v. Gonzales, 417 F.3d 1022, 1029 (9th Cir. 2005).5

5

Nothing in our holding implies that either minute orders or abstracts of

judgments are “categorically unreliable.” United States v. Sandoval-

8268 UNITED STATES v. SNELLENBERGER

[7] In sum, any inquiry beyond the language of the convict-

ing statute “must be narrowly construed” to implement Con-

gressional intent and avoid endless evidentiary hearings

concerning prior offenses. Shepard, 544 U.S. at 23 n.4. A sen-

tence enhancement based on facts underlying a prior convic-

tion must rely on a judicial record of those facts. Id. at 26. The

government has submitted no such record regarding Snellen-

berger’s § 459 conviction, and the enhancement of his sen-

tence was in error.

CONCLUSION

The District Court should not have considered a minute

order in ruling on whether Snellenberger’s conviction under

Cal. Penal Code § 459 involved burglary of a dwelling and

therefore a crime of violence. The government has failed to

meet its burden of demonstrating that Snellenberger qualified

as a career offender, eligible for a sentence enhancement

under the Guidelines. For the foregoing reasons, we

VACATE the decision below and REMAND for a new sen-

tencing hearing.

Sandoval, ___ F.3d ___, 2007 WL 1490353, *1 (9th Cir. 2007). We recog-

nize, for example, that an abstract of judgment may be used to prove the

“fact of conviction” under Taylor. 495 U.S. at 601; see United States v.

Valle-Montalbo, 474 F.3d 1197, 1201-02 (9th Cir. 2007). Nonetheless,

neither abstracts of judgments nor minute orders may be considered under

the modified categorical approach defined in Shepard. 544 U.S. at 26.