United States v. Crawford

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, No. 06-30205

v.

 D.C. No.

CR-02-00272-WFN

ANTONIO FELICIANO CRAWFORD, aka

Tone; aka T; aka Tom, OPINION

Defendant-Appellant.



Appeal from the United States District Court

for the Eastern District of Washington

Wm. Fremming Nielsen, Senior Judge, Presiding

Submitted March 14, 2008*

Seattle, Washington

Filed March 28, 2008

Before: Betty B. Fletcher, Susan P. Graber, and

M. Margaret McKeown, Circuit Judges.

Opinion by Judge McKeown

*The panel unanimously finds this case suitable for decision without

oral argument. See Fed. R. App. P. 34(a)(2).

3199

3202 UNITED STATES v. CRAWFORD

COUNSEL

Kathleen Moran, Federal Defenders of Eastern Washington

and Idaho, Spokane, Washington, for the defendant-appellant.

George J.C. Jacobs, III, Assistant United States Attorney,

Spokane, Washington, for the plaintiff-appellee.

OPINION

McKEOWN, Circuit Judge:

Antonio Feliciano Crawford raises a number of sentencing

issues that have now been answered by the spate of recent

UNITED STATES v. CRAWFORD 3203

sentencing decisions by the Supreme Court and this court. We

affirm his 210-month sentence for distribution of heroin and

crack cocaine.

FACTUAL AND PROCEDURAL BACKGROUND

Crawford was convicted by a jury of two counts of distribu-

tion of heroin and distribution of crack cocaine, in violation

of 21 U.S.C. § 841(a)(1). He was sentenced to 210 months’

imprisonment, six years of supervised release, a $1,000 fine

and a $100 special penalty assessment. The district court

found that he was a “career offender” under United States

Sentencing Guidelines § 4B1.1. The court calculated Craw-

ford’s original offense level as 34 and applied a two-level

reduction for acceptance of responsibility. The sentence was

at the bottom of the applicable Guidelines range of 210 to 262

months.

Crawford’s conviction was affirmed on direct appeal in

June 2004. See United States v. Crawford, 102 Fed. Appx. 91

(9th Cir. June 22, 2004) (unpublished). Several weeks later,

and before our mandate issued, the Supreme Court decided

Blakely v. Washington, 542 U.S. 296 (2004), which held that

in the context of mandatory state sentencing guidelines, the

Sixth Amendment right to a jury trial prohibited judges from

enhancing criminal sentences based on facts other than those

decided by the jury or admitted by the defendant. After

Blakely, Crawford asked us to recall our previous mandate.

While this motion was pending, the Supreme Court issued its

opinion in United States v. Booker, 543 U.S. 220 (2005),

where it held, among other things, that the Sentencing Guide-

lines were merely advisory, not mandatory, and that appellate

courts should review sentences for “reasonableness.” In

August 2005, we vacated Crawford’s sentence and remanded

his case for re-sentencing in light of Booker and pursuant to

United States v. Ameline, 409 F.3d 1073 (9th Cir. 2005) (en

banc). See United States v. Crawford, 422 F.3d 1145 (9th Cir.

2005) (order).

3204 UNITED STATES v. CRAWFORD

New counsel was appointed for Crawford and the parties

re-briefed the sentencing issues. The district court held

another sentencing hearing and imposed the same sentence as

before. Crawford appealed his re-sentencing, but his case and

others were deferred pending resolution of United States v.

Carty, 462 F.3d 1066 (9th Cir. 2006) (order),1 which itself

was deferred until after the Supreme Court decided several

sentencing cases, among them Rita v. United States, 551 U.S.

___, 127 S. Ct. 2456, 2465 (2007) (holding that appellate

courts may presume the reasonableness of within-Guidelines

sentences), and Gall v. United States, ___ U.S. ___, 128 S. Ct.

586, 591 (2007) (holding that appellate courts must review all

sentences, within and without the Guidelines range, under a

deferential abuse-of-discretion standard). On the same day it

decided Gall, the Court held in Kimbrough v. United States

that the Guidelines for crack cocaine, like all others under

Booker, are advisory only, and “it would not be an abuse of

discretion for a district court to conclude when sentencing a

particular defendant that the crack/powder [cocaine] disparity

yields a sentence ‘greater than necessary’ to achieve [18

U.S.C.] § 3553(a)’s purposes, even in a mine-run case.” Kim-

brough v. United States, ___ U.S. ___, 128 S. Ct. 558, 575

(2007). Crawford’s sentence was within the Guidelines, and

so we can now decide his appeal based on Rita and United

States v. Carty, ___ F.3d ___ , Nos. 05-10200, 05-30120 (9th

Cir. filed March 24, 2008) (en banc) (declining to adopt a

“presumption” of reasonableness for within-Guidelines sen-

tences, but recognizing that a correctly calculated Guidelines

sentence “will usually be reasonable”).

Analysis

Crawford raises three issues on appeal: (1) whether the

Sentencing Commission’s policy statements should be given

1

United States v. Carty, 453 F.3d 1214 (9th Cir. 2006), and United

States v. Zavala, 443 F.3d 1165 (9th Cir. 2006) (per curiam), were consol-

idated for purposes of rehearing en banc.

UNITED STATES v. CRAWFORD 3205

more weight than the Guidelines for crack cocaine sentences

because the Commission’s reports are supported by empirical

evidence, while the Guidelines were based on unproven

assumptions; (2) whether the district court procedurally erred

in offering comments concerning the view that the Guidelines

are presumptively reasonable and whether it failed to consider

the sentencing factors set forth in 18 U.S.C. § 3553(a); and (3)

whether the district court erred in finding that Crawford was

a career offender. We deal with each issue in turn.

A. SENTENCING DISPARITY BETWEEN CRACK AND POWDER

COCAINE

[1] Crawford argues that the reports by the Sentencing

Commission are supported by empirical research, while the

Guidelines are based on speculations that “ha[ve] never held

up to objective scrutiny,” and consequently, a district court

should give more weight to the Commission’s reports and less

weight to the Guidelines. Although the Supreme Court has

since validated Crawford’s view, see Kimbrough, ___ U.S.

___, 128 S. Ct. at 575 (“In formulating Guidelines ranges for

crack cocaine offenses, . . . the Commission . . . did not take

account of ‘empirical data and national experience.’ Indeed,

the Commission itself has reported that the crack/powder dis-

parity produces disproportionately harsh sanctions . . . for

crack cocaine offenses . . . .” (citations omitted)), Kimbrough

does not help Crawford’s case because he conceded during

his re-sentencing hearing that the disparity does not actually

affect his sentencing level. The judge asked during the hear-

ing, “[a]ssuming the court is correct that [Crawford] qualifies

as a career offender, if the conviction had been for powder

instead of crack, wouldn’t we be in the same place?,” to

which Crawford’s counsel responded by acknowledging that

the base offense level calculation would be the same regard-

less of the powder cocaine versus crack cocaine distinction.

Thus Kimbrough is unavailing to Crawford’s cause.

3206 UNITED STATES v. CRAWFORD

B. REASONABLENESS OF SENTENCE AND APPLICATION OF

§ 3553(a) FACTORS

1. Post-Rita and Carty reasonableness analysis

[2] Crawford argues that the district court erred in imposing

a sentence within the Guidelines after declaring its view that

such sentences are presumptively reasonable. Though the

Supreme Court in Rita held that appellate courts may presume

that a sentence is reasonable when a district court judge’s dis-

cretionary decision accords with the sentence the Sentencing

Commission deems appropriate in most cases, the Court

emphasized that such a presumption was limited to the stan-

dard on appeal. See Rita, 551 U.S. at ___, 127 S. Ct. at 2465

(“We repeat that the presumption before us is an appellate

court presumption. Given our explanation in Booker that

appellate ‘reasonableness’ review merely asks whether the

trial court abused its discretion, the presumption applies only

on appellate review.” (emphasis in original) (citing Booker,

543 U.S. at 259-60)); Gall, ___ U.S. at ___, 128 S. Ct. at 596-

97; Carty, ___ F.3d at ___ (the district court may not presume

that the Guidelines range is reasonable).

[3] The district court here did not presume the reasonable-

ness of a Guidelines sentence with respect to Crawford’s case

but, rather, presciently forecasted Rita’s holding, while citing

to Booker and acknowledging other circuits that had already

adopted the rule Rita would eventually espouse:

[W]e all recognize that now, the sentencing guide-

lines are advisory. They’re not mandated. We are

required to consult them, calculate—the career

offender provision under Chapter 4 of the guidelines

is advisory. . . . But as I’ve said before and I’ll say

now, in view of the Booker/Fan Fan cases, which

require us to look at the guidelines, consult them,

calculate the appropriate guideline sentence, that the

standard of review on appeal is reasonable if the

UNITED STATES v. CRAWFORD 3207

court feels that—and some of the circuits have said

—specifically held that a guideline sentence, unless

there’s some real reason to vary from it, is presump-

tively reasonable; and I think that that makes sense.

This statement must be viewed in the context of the entire

sentencing hearing. We must distinguish the district court’s

comment on some circuits’ adoption of the presumption for

appellate review, a statement made in passing, from the thor-

ough process the court went through in determining the

appropriateness of Crawford’s sentence, which was done

within the framework established by Booker and reinforced

by Rita, Gall, and Kimbrough. See Kimbrough, ___ U.S. at

___, 128 S. Ct. at 574 (the Guidelines are “the ‘starting point

and the initial benchmark’ ” (quoting Gall, ___ U.S. at ___,

128 S. Ct. at 596)); Gall, ___ U.S. at ___, 128 S. Ct. at 596-

97 n.6 (the Guidelines are to be kept in mind throughout the

process); Carty, ___ F.3d at ___ (all sentencing proceedings

are to begin by determining the applicable Guidelines range,

which must be calculated correctly, and the Guidelines should

be kept in mind throughout the process). The district court

neither misapprehended the sentencing framework nor

adopted a presumption of reasonableness.

2. Application of § 3553(a) factors

[4] To comply with the requirements of Booker, a district

court must sufficiently consider the Guidelines, as well as the

other factors listed in § 3553(a). The district court here more

than met Booker’s requirements. The sentencing colloquy and

explanation were detailed and thoughtful. The district court

then properly applied the § 3553(a) factors alongside the

Guidelines, noting that it must look “not only [at] the recom-

mendations contained in the advisory guidelines, but . . . at

the whole picture. And the criteria that we do look at are set

forth in 18 USC 3553(a).”

[5] The judge first analyzed § 3553(a)(3) (“kinds of sen-

tences available”) and § 3553(a)(4)(A) (“kinds of sentence

3208 UNITED STATES v. CRAWFORD

and the sentencing range established for—the applicable cate-

gory of offense committed by the applicable category of

defendant as set forth in the guidelines”) and discussed how,

in previously considering Crawford’s sentence, he had felt

that a potential maximum life sentence was too high and had

adjusted it accordingly, taking into account Crawford’s accep-

tance of responsibility. The judge then considered

§ 3553(a)(1) (“the nature and circumstances of the offense

and the history and characteristics of the defendant”) and

found drug trafficking to be “probably one of the most serious

crimes that confronts society at this time,” commenting that

there was “good reason to believe” that Crawford had been

affiliated with gangs and may even have been a participant in

a drive-by shooting. Considering § 3553(a)(2)(A) and

§ 3553(a)(2)(C) (“the need for the sentence imposed—to

reflect the seriousness of the offense, to promote respect for

the law, and to provide just punishment for the offense” and

“to protect the public from further crimes of the defendant”),

the judge also reflected on the need for the sentence imposed

as promoting “[r]espect for the law,” and protecting the pub-

lic, observing the necessary reliance of the distribution

schemes of “high-level dealers” on “street dealers,” such as

Crawford.

[6] With regard to § 3553(a)(2)(B) (the need for the sen-

tence “to afford adequate deterrence to criminal conduct”),

the court observed that Congress has created harsh penalties

in order to deter such activity because of its ruinous effects on

individuals and communities. Finally, with respect to

§ 3553(a)(2)(D) (“to provide the defendant with needed edu-

cational or vocational training, medical care, or other correc-

tional treatment in the most effective manner”), the court then

took into account the need for rehabilitation, remarking to

Crawford that he was “encouraged” that Crawford felt he was

changing his life, and that he hoped Crawford would continue

“to act appropriately while . . . incarcerated, earn maximum

good time, and participate in the 500-hour drug treatment pro-

gram” once eligible to do so.

UNITED STATES v. CRAWFORD 3209

After reviewing these factors, the judge concluded,

in view of all the factors taken into account—your

criminal history background, your long use and sell-

ing of drugs—and I emphasize long period of time

selling drugs here in this community—your associa-

tions and your other activities—they all indicate that

a reasonable sentence, taking into account not only

the advisory guidelines of 3553, is the sentence that

was imposed; and that’s the 210 months. And I’m

not going to change anything.

In light of the advisory Guidelines and the relevant sentencing

factors in § 3553, the district court committed no error in its

thorough and sympathetic consideration of Crawford’s case.

C. CALCULATION OF CAREER OFFENDER STATUS

The final issue Crawford raises is whether the district court

correctly found that he qualifies as a career offender based on

his two prior drug offense convictions in California and

Washington. With respect to the California conviction, Craw-

ford challenges the sufficiency of the documentation. With

respect to the Washington conviction, he challenges the cate-

gorization of the offense. We review de novo the district

court’s interpretation of the Sentencing Guidelines and its

determination that a defendant qualifies as a career offender.

United States v. Shumate, 329 F.3d 1026, 1028 (9th Cir.

2003). The district court was correct in its determination that

Crawford qualifies as a career offender under U.S.S.G.

§ 4B1.1.

1. California Conviction

[7] In 1990, Crawford pled guilty to violating California

Health and Safety Code § 11352(a), which provides: “[E]very

person who transports, imports into this state, sells, furnishes,

administers, or give[s] away . . . any controlled substance

3210 UNITED STATES v. CRAWFORD

specified in [the statute] . . . shall be punished by imprison-

ment in the state prison for three, four, or five years.” To doc-

ument the conviction, the government provided the felony

complaint charging the § 11352(a) violation, the information,

the plea form, the abstract of judgment, and the state court’s

minute orders entering a judgment of conviction. On the plea

form, Crawford provided a hand-written factual basis for his

plea, which stated: “On 6/21/90 in Orange County I sold a

useable quantity of cocaine, knowing it was cocaine. On 7/

13/90 in Orange County, I transported cocaine knowing it was

cocaine. The quantity on 6/21/90 was 14.45 gms. The quantity

on 7/13/90 was 180 grams.” He signed and dated the form.

[8] In analyzing whether a prior conviction qualifies as a

prior predicate controlled substance offense for purposes of

U.S.S.G. § 4B1.1, the sentencing court must first use the cate-

gorical approach. United States v. Kovac, 367 F.3d 1116,

1119 (9th Cir. 2004) (citing Taylor v. United States, 495 U.S.

575 (1990)). Under this approach, the sentencing court must

look only to the statute of conviction. Id. If the statute is

facially over-inclusive, the court employs the modified cate-

gorical approach. Id. The government concedes that the Cali-

fornia statute is too broad to qualify under the categorical

approach because the Health and Safety Code covers such a

wide range of possible behavior. See id. at 1119-20 (applying

modified categorical approach to question of whether Cal.

Health and Safety Code § 11352 violation qualifies as a

career-offender predicate offense).

Under the modified categorical approach, the prior offense

may qualify as a career offender predicate offense if “ ‘docu-

mentation or judicially noticeable facts . . . clearly establish

that the conviction 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) (en banc),

superseded by statute on other grounds as noted in United

States v. Vidal, 426 F.3d 1011, 1014-15 (9th Cir. 2005). “The

UNITED STATES v. CRAWFORD 3211

government has the burden to establish clearly and unequivo-

cally that the conviction was based on all of the elements of

a qualifying predicate offense.” Kovac, 367 F.3d at 1119.

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

sentencing court’s review is limited “to those documents

‘made or used in adjudicating guilt’ such as ‘the terms of the

charging document, the terms of a plea agreement or [the]

transcript of [the] colloquy between judge and defendant in

which the factual basis for the plea was confirmed by the

defendant, or to some comparable judicial record of this infor-

mation.’ ” United States v. Martinez-Martinez, 468 F.3d 604,

606-07 (9th Cir. 2006) (alterations in original) (quoting Shep-

ard v. United States, 544 U.S. 13, 20, 26, (2005)); see also

United States v. Narvaez-Gomez, 489 F.3d 970, 977 (9th Cir.

2007).

The district court concluded that the 1990 California con-

viction meets the requirements for the career offender

enhancement under the modified categorical approach. Craw-

ford argues that the documentation was insufficient to estab-

lish the elements of the California offense because certain

parts of the plea documents were illegible, because the gov-

ernment relied on the abstract of judgment, and because the

plea agreement itself was not signed by a judge. The district

court considered and rejected each of these arguments. None

of the arguments is persuasive on appeal.

[9] The 1990 California conviction meets the requirements

for the modified categorical approach. In his plea, Crawford

clearly admitted that he knowingly sold and transported

cocaine. Selling cocaine falls within the definition of a con-

trolled substance offense, even though the statutory definition

of the California offense is broader. U.S.S.G. § 4B1.2(b).

Crawford does not contest either the accuracy of the plea form

or his statement contained on the form. The district court

found that the plea form was signed by Crawford, his attor-

ney, and the prosecuting attorney, and that nothing more was

required. The district court therefore relied in part on the facts

3212 UNITED STATES v. CRAWFORD

admitted to in the plea in finding that the underlying elements

of the § 11352 offense were established. Although Crawford

disputes whether the abstract of judgment and the minute

order are acceptable documentation, we need not comment on

that argument. The plea, in conjunction with the charging

documents, is sufficient to show that the California conviction

was for a qualifying predicate drug offense and that the ele-

ments of the offense were satisfied. Corona-Sanchez, 291

F.3d at 1211.

2. Washington Conviction

[10] In 2001, Crawford pled guilty to conspiracy to deliver

a controlled substance (crack cocaine) in violation of the

Washington Revised Code § 69.50.407, which provides: “Any

person who attempts or conspires to commit any offense

defined in this chapter is punishable by imprisonment or fine

or both which may not exceed the maximum punishment pre-

scribed for the offense, the commission of which was the

object of the attempt or conspiracy.”

The government provided the district court with the

amended information, Crawford’s plea agreement, several law

enforcement affidavits supporting the plea agreement, and the

state court’s judgment of conviction and sentence. The

amended information charged Crawford with:

Conspiracy to deliver a controlled substance, com-

mitted as follows, that the defendant, Antonio Feli-

ciano Crawford, in the State of Washington, on or

about May 27, 1997, did knowingly and unlawfully

conspire with at least one person other than the

intended recipient to deliver a controlled substance,

to-wit: crack cocaine, proscribed by RCW 69.50.407

[conspiracy] and 69.50.401(a) [controlled substance

statute].

Crawford’s plea agreement, in a hand-written note, reflects

that the elements of the crime are adopted “as in amended

UNITED STATES v. CRAWFORD 3213

info.” The plea agreement was signed by Crawford, defense

counsel, the prosecuting attorney, and the state court judge.

The state court entered a judgment of conviction and sen-

tenced Crawford to 26 days’ imprisonment.

[11] Under the Sentencing Guidelines, a predicate offense

can qualify a defendant for career offender status if it is a “fel-

ony conviction[ ]” of “either a crime of violence or a con-

trolled substance offense,” U.S.S.G. § 4B1.1(a), where a

“controlled substance offense” is “an offense under federal or

state law, punishable by imprisonment for a term exceeding

one year, that prohibits the manufacture, import, export, dis-

tribution, or dispensing of a controlled substance . . . or the

possession of a controlled substance . . . with intent to manu-

facture, import, export, distribute, or dispense,” id.

§ 4B1.2(b). The underlying controlled substance statute pro-

vides that “it is unlawful for any person to manufacture,

deliver, or possess with intent to manufacture or deliver a

controlled substance.” Wash. Rev. Code § 69.50.401(1)

(2005). The statute also provides that “[a]ny person who vio-

lates this section with respect to (a) A controlled substance

classified in Schedule I or II which is a narcotic drug . . . is

guilty of a class B felony and upon conviction may be impris-

oned for not more than ten years . . .” Id. § 69.50.401(2)(a)

(2005).

[12] The district court concluded that the 2001 Washington

conviction qualifies as a predicate offense because the maxi-

mum term for the crime was imprisonment for ten years based

on the controlled substances statute. Crawford concedes that

“[t]he conspiracy statute states that the maximum punishment

may not exceed the maximum for the object of the conspir-

acy, in this case a Class B felony with a 10 year maximum.”

To avoid the application of that ten-year maximum, Crawford

cites Wash. Rev. Code § 9.94A.120(6) (re-codified in 2001 as

Wash. Rev. Code § 9.94A.505(2)(b)), and argues that under

Washington’s Sentencing Reform Act, conspiracy is an “un-

3214 UNITED STATES v. CRAWFORD

ranked” offense and, thus, the maximum sentence available is

twelve months.

[13] We rejected an almost identical argument in United

States v. Murillo, 422 F.3d 1152 (9th Cir. 2005). In Murillo,

we considered whether, for purposes of determining “whether

a Washington state criminal conviction is of a crime punish-

able by a term exceeding one year for purposes of prosecution

under 18 U.S.C. § 922(g)(1) (felon in possession of a fire-

arm),” the “maximum sentence for [a] prior conviction is

defined by the state criminal statute, [or] the maximum sen-

tence in the particular case set by Washington’s sentencing

guidelines.” Id. at 1153. We held that

the maximum sentence that makes a prior conviction

under state law a predicate offense under 18 U.S.C.

§ 922(g)(1) remains, after Blakely, the potential

maximum sentence defined by the applicable state

criminal statute, not the maximum sentence which

could have been imposed against the particular

defendant for his commission of that crime accord-

ing to the state’s sentencing guidelines.

Id. at 1155 (emphases added). We explicitly rejected the idea

that Apprendi v. New Jersey, 530 U.S. 466, 471 (2000), or

Blakely affected this definition of a predicate conviction:

Blakely did not change the definition of what consti-

tutes a maximum sentence under state law for pur-

poses of prosecution under 18 U.S.C. § 922(g)(1).

...

....

. . . Murillo’s argument has nothing to do with

Apprendi or Blakely. While Apprendi, and corre-

spondingly Blakely, involved the “maximum sen-

tence” a judge may impose based on the jury’s

UNITED STATES v. CRAWFORD 3215

verdict or the defendant’s admissions, Murillo

attempts to extend Apprendi and Blakely to modify

a crime’s potential punishment . . . .

Murillo, 422 F.3d at 1154-55. Thus, Crawford’s argument is

foreclosed by Murillo. The 2001 Washington conviction qual-

ifies as a predicate drug offense, and the district court did not

err in relying on that offense in determining that Crawford

was a career criminal.

AFFIRMED.