United States v. Snellenberger

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v. No. 06-50169

MICHAEL LEE SNELLENBERGER, aka  D.C. No.

CR-05-00064-AHS

Michael Lee Cutter, Michael Lee

Davidson, Robert Eugene Frehly, OPINION

Cutter Snellenberger, “Cutter,”

Defendant-Appellant.



Appeal from the United States District Court

for the Central District of California

Alicemarie H. Stotler, District Judge, Presiding

Argued and Submitted

June 25, 2008—Pasadena, California

Filed October 28, 2008

Before: Alex Kozinski, Chief Judge, Stephen Reinhardt,

Pamela Ann Rymer, Andrew J. Kleinfeld,

Michael Daly Hawkins, Sidney R. Thomas, Susan P. Graber,

William A. Fletcher, Ronald M. Gould, Richard C. Tallman,

and Milan D. Smith, Jr., Circuit Judges.

Per Curiam Opinion;

Concurrence by Judge Graber;

Dissent by Judge Milan D. Smith, Jr.

14997

15000 UNITED STATES v. SNELLENBERGER

COUNSEL

Gail Ivens, Deputy Public Defender, Los Angeles, California,

for the defendant-appellant.

Anne C. Gannon, Assistant United States Attorney, Santa

Ana, California, and Michael J. Raphael, Assistant United

States Attorney, Los Angeles, California, for the plaintiff-

appellee.

Steven F. Hubachek, Federal Defenders of San Diego, Inc.,

San Diego, California, for the amicus curiae.

OPINION

PER CURIAM:

We must decide whether a court may consider a clerk’s

minute order when applying the modified categorical

approach of Taylor v. United States, 495 U.S. 575 (1990).

Facts

Michael Snellenberger walked into a bank with a threaten-

ing note and walked out with a small sum of money. He was

quickly arrested and eventually pleaded guilty to unarmed

bank robbery. The district court calculated a Sentencing

Guidelines range of 151 to 188 months and sentenced Snel-

lenberger to 151 months. On appeal, he challenges the calcu-

lation of the sentencing range.

UNITED STATES v. SNELLENBERGER 15001

Analysis

[1] 1. Snellenberger’s sentencing range was greatly ele-

vated when the district court determined that he was a career

offender. To qualify as a career offender, a defendant must be

convicted of a crime of violence or a drug offense after hav-

ing previously committed two such crimes. U.S.S.G.

§ 4B1.1(a). Snellenberger’s crime of conviction, bank rob-

bery, is a crime of violence; one of his prior convictions, sale

of methamphetamine, is a drug offense. Under dispute is his

other prior: burglary in violation of California Penal Code

§ 459.

[2] A “crime of violence,” as defined in U.S.S.G.

§ 4B1.2(a), includes (among other things) “burglary of a

dwelling.” If Snellenberger’s prior conviction qualifies as bur-

glary of a dwelling, it’s a crime of violence. There are two

possible reasons why it might not qualify: First, California’s

burglary statute is broader than the generic definition of bur-

glary adopted by the Supreme Court as the benchmark in Tay-

lor. Generic burglary is limited to entry into a “building or

other structure,” 495 U.S. at 598, whereas California burglary

covers entry into all manner of other places—tents, railroad

cars, automobiles, aircraft, mines, even outhouses. Second,

the Sentencing Guidelines are even narrower than the generic

definition of burglary; whereas generic burglary may be com-

mitted in a commercial building, only burglaries of dwellings

qualify as crimes of violence.

[3] When the statute of conviction is broader than the

generic definition, we can’t tell categorically whether the

prior conviction qualifies as a strike. Rather, we must use the

so called modified categorical approach, which requires us to

determine—if we can—whether the conduct for which the

defendant was convicted fits within the federal definition of

the offense. Id. at 602. As applied to Snellenberger, we must

figure out whether the conduct to which he pleaded guilty was

burglary of a building or other structure (as Taylor requires)

15002 UNITED STATES v. SNELLENBERGER

and further whether the burglary was of a dwelling (as the

Sentencing Guidelines require). If we can tell both of these

things with reasonable certainty, the prior conviction counts

and Snellenberger is a career criminal.

[4] The Supreme Court in Shepard v. United States, 544

U.S. 13 (2005), listed the types of documents we may con-

sider in applying the modified categorical approach: “the stat-

utory definition, charging document, written plea agreement,

transcript of plea colloquy, and any explicit factual finding by

the trial judge to which the defendant assented.” Id. at 16. We

have the charging document—here an information—but it

charges two burglaries. Count 1 charges burglary of a “dwell-

ing house,” but count 2 charges burglary of a vehicle. Other

than the statutory definition, the record contains none of the

documents to which the Supreme Court refers in Shepard.

How can we tell, then, whether Snellenberger pleaded guilty

to count 1 (which would count as a strike against him) or

count 2 (which wouldn’t)?

The district court relied on the state court clerk’s minute

order. California Penal Code § 1207 provides that “[w]hen

judgment upon a conviction is rendered, the clerk must enter

the judgment in the minutes, stating briefly the offense for

which the conviction was had . . . . A copy of the judgment

of conviction shall be filed with the papers in the case.”

The minute order is a printed form bearing the name of the

court at the top, followed by the case caption. The body con-

sists of numbered lines, each calling for some information to

be inserted by checking a box or writing in a blank. Line 56

starts with a box through which an “X” has been drawn; it

reads “Defendant personally withdraws plea of not guilty to

count(s) _ _ _ _ _ _,” and “1” is written in the blank. Line 57

also starts with a box through which an “X” has been drawn,

and indicates a plea of nolo contendere to count 1.

Together, these lines establish that Snellenberger pleaded

nolo contendere to count 1, which charged him with “enter-

UNITED STATES v. SNELLENBERGER 15003

[ing] an inhabited dwelling house and trailer coach and inhab-

ited portion of a building occupied by Peter MacPherson, with

the intent to commit larceny and any felony.” Because the

three noun phrases are connected by “and” rather than “or,”

the charging document and minute order, if consulted, estab-

lish that Snellenberger committed burglary of a dwelling.

[5] Snellenberger challenges the district court’s reliance on

the minute order, arguing that it isn’t among the documents

listed by the Court in Shepard. But that list was illustrative;

documents of equal reliability may also be considered. See

Shepard, 544 U.S. at 26 (permitting use of “comparable” judi-

cial records). The clerk’s minute order easily falls within the

category of documents described: It’s prepared by a court

official at the time the guilty plea is taken (or shortly after-

ward), and that official is charged by law with recording the

proceedings accurately. The clerk presumably exercises that

duty as faithfully and diligently as, for example, court report-

ers, upon whose transcripts we regularly depend. Indeed, the

Shepard list expressly references the transcript of the plea col-

loquy as a document we may properly rely on, even though

the transcript itself (as opposed to the reporter’s notes on

which it is based) is generally prepared days or weeks—and

sometimes years—after the in-court proceedings.

[6] Snellenberger also complains that the minute order is

not something that is approved, or even seen, by the parties,

so he shouldn’t be held responsible for its contents. It’s not

clear from the record whether parties to a criminal case in

California are given copies of the clerk’s minute order at the

time it is placed in the case file, but there is certainly no sug-

gestion that it’s a secret document. A defendant can always

check the case file and ensure that any materials placed there

accurately reflect the proceedings; presumably, doing so is

part of every criminal defense lawyer’s professional obliga-

tion. In any event, by analogy to transcripts, it’s enough that

the minute order was prepared by a neutral officer of the

court, and that the defendant had the right to examine and

15004 UNITED STATES v. SNELLENBERGER

challenge its content, whether or not he actually did. Having

failed to challenge or correct the minute order in state court—

perhaps because there wasn’t a basis for doing so—

Snellenberger is now bound by what it says: He pleaded nolo

contendere to the burglary of a dwelling, satisfying this aspect

of the generic definition of the crime for purposes of U.S.S.G.

§ 4B1.1(a).

[7] We therefore hold that district courts may rely on clerk

minute orders that conform to the essential procedures

described above in applying the modified categorical

approach. United States v. Diaz-Argueta, 447 F.3d 1167,

1169 (9th Cir. 2006), which suggested the contrary, is to that

extent overruled.

2. In the district court, Snellenberger unsuccessfully argued

that, even if the minute order were considered, his conviction

wasn’t a generic burglary within the meaning of Taylor. On

appeal, he didn’t make that argument in his opening brief. See

Def.’s Supp. Br. to Rh’g En Banc 4 & n.4 (Snellenberger “has

not previously challenged the application of the career

offender guideline to his case on the . . . basis” "that Califor-

nia burglary is missing the element of unprivileged entry”).

We therefore decline to reach the issue. See, e.g., United

States v. Ankeny, 502 F.3d 829, 835 n.3 (9th Cir. 2007); Leon

v. IDX Sys. Corp., 464 F.3d 951, 957 n.3 (9th Cir. 2006).

[8] No special circumstances justify our raising the ques-

tion sua sponte. The fact that Snellenberger made this argu-

ment in the district court demonstrates that the absence of the

later-decided Navarro-Lopez v. Gonzales, 503 F.3d 1063 (9th

Cir. 2007) (en banc), didn’t deter him from making the argu-

ment in the first place. Nothing prevented him from appealing

the district court’s adverse ruling on that issue. We therefore

express no opinion on the application of Navarro-Lopez to the

facts of this case.

AFFIRMED.

UNITED STATES v. SNELLENBERGER 15005

15006 UNITED STATES v. SNELLENBERGER

GRABER, Circuit Judge, with whom RYMER, KLEINFELD,

HAWKINS, GOULD, and TALLMAN, join, concurring:

I join fully in the court’s opinion but write briefly to

respond to the dissent, which asserts that we should reach the

question whether Navarro-Lopez v. Gonzales, 503 F.3d 1063

(9th Cir. 2007) (en banc), would counsel reversal.

Even if we were to consider this unraised issue, we would

have to do so using a “plain error” analysis. See United States

v. Beng-Salazar, 452 F.3d 1088, 1092 (9th Cir. 2006) (“We

review unpreserved errors for plain error.” (citing Fed. R.

Crim. P. 52(b)); see also United States v. Olano, 507 U.S.

725, 732 (1993) (“[T]he authority created by Rule 52(b) is

circumscribed. There must be an error that is plain and that

affect[s] substantial rights.” (internal quotation marks omit-

ted) (second alteration in original)). There is no plain error

here.

As the opinion properly notes, Defendant Snellenberger

pleaded nolo contendere to “enter[ing] an inhabited dwelling

house and trailer coach and inhabited portion of a building

occupied by Peter MacPherson, with the intent to commit lar-

ceny and any felony.” Majority op. at 15002-03 (internal quo-

tation marks omitted) (alteration in original). Whether or not

that conduct counts as “generic burglary” under the peculiari-

ties of California law, the act described “involves conduct that

presents a serious potential risk of physical injury to another,”

U.S.S.G. § 4B1.2(a)(2), to wit, MacPherson. For that reason,

we would still have to affirm Snellenberger’s conviction.

M. SMITH, Circuit Judge, with whom Chief Judge Kozinski

and Judges Reinhardt and Thomas join, dissenting:

Though we rarely review arguments not raised in the open-

ing brief, we acknowledge an exception to the waiver rule

UNITED STATES v. SNELLENBERGER 15007

when there has been an intervening change in the law. See,

e.g., Ball v. Rodgers, 492 F.3d 1094, 1102 (9th Cir. 2007).

Navarro-Lopez v. Gonzales, 503 F.3d 1063, 1073 (9th Cir.

2007) (en banc), constitutes such a change.

We recently observed in Kawashima v. Mukasey that prior

to Navarro-Lopez, we

applied the modified categorical approach in cases

where the statute of conviction prohibits a broader

range of conduct than the generic offense, regardless

of whether the former lacks a particular element of

the latter. See, e.g., United States v. Parker, 5 F.3d

1322 (9th Cir. 1993) (applying the modified categor-

ical approach to determine whether a jury found the

defendant guilty of generic burglary even though the

statute under which the defendant was convicted did

not require unlawful entry, a necessary element of

the generic definition); United States v. Alvarez, 972

F.2d 1000 (9th Cir. 1992) (per curiam) (same). In

Navarro-Lopez, we did not explicitly overrule these

precedents . . . Nevertheless, Navarro-Lopez’s state-

ment that the modified categorical approach never

applies when “the crime of conviction is missing an

element of the generic crime altogether,” 503 F.3d at

1073, is plain and clear. And, because such state-

ment is irreconcilable with our precedents that have

held otherwise, we must conclude that they have

been impliedly overruled.

530 F.3d 1111, 1116 (9th Cir. 2008). Accordingly, I do not

believe that we are free in this case to ignore the new law set

forth in Navarro-Lopez, which addresses the threshold issue

of whether we may use the modified categorical approach at

all. If the modified categorical approach never applies under

a particular statute, we should not reach the issue of whether

a minute order could satisfy the modified categorical

15008 UNITED STATES v. SNELLENBERGER

approach, and I respectfully suggest that we are remiss in

doing so.

Nevertheless, since the panel has decided to reach the issue,

I believe it important to clarify that the facts one may consider

reliably established by a California minute order are limited

by the minute order’s function, i.e., to record the statute of

conviction and the count in the information or indictment to

which the defendant pleaded guilty or nolo contendere. By its

nature, a minute order cannot be used to establish the underly-

ing facts of the crime committed. Cf. United States v.

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

Because I would address Navarro-Lopez’s impact on this

case, I would overrule United States v. Aguila-Montes De

Oca, 523 F.3d 1071 (9th Cir. 2008), to the extent it concludes

that Navarro-Lopez permits use of the modified categorical

approach in applying a conviction under California Penal

Code § 459. I would also explicitly overrule pre-Navarro-

Lopez cases such as United States v. Rodriguez-Rodriguez,

393 F.3d 849, 857-58 (9th Cir. 2005), that apply the modified

categorical approach to convictions under California Penal

Code § 459. Navarro-Lopez clearly states our new rule that

“[t]he modified categorical approach . . . only

applies when the particular elements in the crime of

conviction are broader than the generic crime. When

the crime of conviction is missing an element of the

generic crime altogether, we can never find that ‘a

jury was actually required to find all the elements of’

the generic crime.”

Navarro-Lopez, 503 F.3d at 1073 (quoting Li v. Ashcroft, 389

F.3d 892, 899-901 (9th Cir. 2004) (Kozinski, J. concurring)).

Because California burglary is missing a generic element, the

UNITED STATES v. SNELLENBERGER 15009

district court’s application of the modified categorical

approach is plain error.1

The generic definition for federal burglary requires an “un-

lawful or unprivileged entry.” Taylor v. United States, 495

U.S. 575, 598 (1990). The Court in Taylor noted that its defi-

nition of burglary approximated that adopted by the drafters

of the Model Penal Code wherein a person commits burglary

“if he enters a building . . . with purpose to commit a crime

therein, unless the premises are at the time open to the public

or the actor is licensed or privileged to enter,” implying that

“unlawful” means unconsented. Id. at 598 n.8 (quoting Model

Penal Code § 221.1 (1980)) (emphasis added).2 The Court

observed that some states have eliminated the requirement

that the entry be unlawful. Id. at 599.

California is one of the states where only “entry” is

required. Under California law, one can commit residential

burglary even if the entry into the home is consensual and not

a trespass. People v. Frye, 959 P.2d 183, 212-13 (Cal. 1998).

Specifically, under CALJIC 14.50, the only elements that

must be proven to convict under California Penal Code § 459

are that:

1

Snellenberger did not argue at the district court level that the modified

categorical approach never applies under the California Penal Code § 459;

therefore, the correct standard of review is plain error. “[W]here the law

at the time of trial was settled and clearly contrary to the law at the time

of appeal — it is enough that an error be ‘plain’ at the time of appellate

consideration.” Johnson v. United States, 520 U.S. 461, 468 (1997). Erro-

neous application of a sentencing enhancement affects the defendant’s

substantial rights and “affect[s] both the fairness and integrity of our judi-

cial system.” United States v. Portillo-Mendoza, 273 F. 3d 1224, 1228 (9th

Cir. 2001).

2

I acknowledge that one could consider entry into a structure for the

purpose of committing a crime to be “unlawful” in a general sense, but

that type of unlawfulness is explicitly distinguished from the “unlawful or

unprivileged entry” included by the Supreme Court in Taylor as an ele-

ment of generic burglary.

15010 UNITED STATES v. SNELLENBERGER

1. A person entered a [building] [________]; and

2. At the time of the entry, that person had the spe-

cific intent to steal and take away someone

else’s property, and intended to deprive the

owner permanently of that property;

Id. at 212. In contrast, the Supreme Court indicated that

the generic, contemporary meaning of burglary con-

tains at least the following elements: an unlawful or

unprivileged entry into, or remaining in, a building

or other structure, with intent to commit a crime.

Taylor, 495 U.S. at 598 (emphasis added). The Supreme

Court has clarified that

an offense constitutes ‘burglary’ for purposes of . . .

sentence enhancement if either its statutory defini-

tion substantially corresponds to ‘generic’ burglary,

or the charging paper and jury instructions actually

required the jury to find all the elements of generic

burglary in order to convict the defendant.

Taylor, 495 U.S. at 602 (emphasis added). Taylor does not

permit the conflation of the element of unlawful or unprivi-

leged entry with the element of entry with the intent to com-

mit a crime. Rather, the jury is required to find both elements

independently in order to convict the defendant.

Under the standard set out in Taylor, we cannot establish

that a conviction for California burglary meets the require-

ments for a federal enhancement for “burglary of a dwelling.”

Even where the information or indictment alleges that the

defendant did “unlawfully enter,” as occurred in this case, no

jury would ever be “actually required to find all the elements

of generic burglary” in order to convict the defendant because

UNITED STATES v. SNELLENBERGER 15011

the type of entry need not be proven and is simply unneces-

sary to the conviction. See Taylor, 495 U.S. at 602; Frye, 959

P.2d at 212.

Furthermore, given the peculiarities of California law, Cali-

fornia’s burglary statute does not satisfy the residual clause as

an offense that “otherwise involves conduct that presents a

serious potential risk of physical injury to another.” U.S.S.G.

§ 4B1.2(a)(2). We continue to employ the categorical

approach when analyzing the applicability of the residual

clause. Because California burglary is similar to “burglary of

a dwelling,” the relevant inquiry is whether the risk posed by

California residential burglary is similar to that posed by fed-

eral burglary of a dwelling. See James v. United States, 127

S. Ct. 1586, 1594 (2007) (analyzing attempted burglary).

In conducting this inquiry, we are not required to find that

every conceivable California burglary would pose a serious

potential risk of physical injury to another, but rather that, in

the ordinary case, California burglary would satisfy the resid-

ual clause. Id. at 1597. “ ‘It requires a realistic probability, not

a theoretical possibility, that the State would apply its statute

to conduct that falls outside the generic definition of a

crime.’ ” Id. (quoting Gonzales v. Duenas-Alvarez, 127 S. Ct.

815, 822 (2007)).

California has created an entire class of burglaries that no

longer fits the description of a “prototypically violent” crime.

For example, a review of California burglary prosecutions

reveals that California courts have upheld burglary convic-

tions for defendants who entered a home with consent and

with the intent to sell fraudulent securities. See, e.g., People

v. Cole, 67 Cal. Rptr. 3d 526, 540 (Ct. App. 2007); People v.

Salemme, 3 Cal. Rptr. 2d 398, 402-03 (Ct. App. 1992).

Admittedly, a slim possibility exists in such a case that a vic-

tim who discovers the fraudulent scheme would confront the

defendant, but the residual clause requires “serious potential

risk,” not merely a faint possibility.

15012 UNITED STATES v. SNELLENBERGER

Due to the broad interpretation of burglary adopted by the

California courts, it appears that the risk of injury to another

comes not from the perpetrator’s unconsented entry, but from

the victims’ reaction to the felony intended to be committed

therein. The Supreme Court has identified the main risk of

burglary as arising “from the possibility of a face-to-face con-

frontation between the burglar and a third party.” James, 127

S. Ct. at 1594. Logically, such a risk arises in a situation of

unconsented entry, not one in which the burglar has been per-

mitted to enter. In light of the breadth of California prosecu-

tions, I cannot conclude that an “ordinary case” of California

burglary is a crime of violence merely because a felony

occurred, or was intended to occur, in a residence. To so con-

clude, one would have to assume that a victim will react dif-

ferently to a felony that occurs in his home than to one that

occurs in a commercial building or on the street, associating

the probability of violence with the location of the crime, not

the nature of the crime or the means by which it is committed.

In applying the residual clause to the specific conduct to

which the defendant pleaded rather than the statutory ele-

ments of the state burglary offense, Judge Graber’s concur-

rence improperly employs the modified categorical approach.

Concurrence at 15006. Our Circuit has repeatedly “expressed

doubt as to whether the modified categorical approach applies

to the catchall clause” at all. United States v. Jennings, 515

F.3d 980, 990 (9th Cir. 2008) (citing United States v. Kelly,

422 F.3d 889, 895 (9th Cir. 2005); United States v. Fish, 368

F.3d 1200, 1204 & n. 4 (9th Cir. 2004); United States v. Par-

ker, 5 F.3d 1322, 1325-26 (9th Cir. 1993)). Notably, the

Supreme Court in James applied only the categorical

approach in its analysis of the residual clause. 127 S. Ct. at

1593-94.

The Ninth Circuit panel in Jennings concluded that “gener-

ally the modified categorical approach may be applied in

determining whether a conviction qualifies as a violent felony

under § 924(e)(2)(B)(ii)’s ‘otherwise’ clause (sometimes

UNITED STATES v. SNELLENBERGER 15013

termed the catchall clause).” 515 F.3d at 990. However, Jen-

nings clarified that Navarro-Lopez precludes application of

the modified categorical approach to the residual clause when

the statute of conviction “does not require proof of any actual

or potential risk of harm to others for a conviction.” Id. at

992. In the case before us, the California burglary statute, like

the Washington statute at issue in Jennings, “ ‘is missing an

element of the generic crime’ — here, the actual or potential

risk of harm to another — ‘altogether.’ A jury would not have

to find that such a risk was posed for any conviction . . . it

simply is not an element of the crime.” Id. at 993 (internal

citations omitted).

Under Navarro-Lopez, we may not apply the modified cat-

egorical approach to determine whether a state statute falls

under the residual clause unless the state offense includes the

element of potential risk of harm. California’s burglary statute

contains no such element, and therefore the modified categor-

ical approach is unavailable.

I sympathize with my colleagues who would like to find a

way to fit convictions under California Penal Code § 459 into

“burglary of a dwelling” or the residual clause. The peculiari-

ties of California law, however, have left federal courts

unable to use it as a predicate offense under USSG § 4B1.1.

The goal of nationwide uniformity driving the Sentencing

Guidelines is not well-served when we apply an enhancement

for all burglaries in one state but none in California, our most

populous state. But neither is it served when we apply an

enhancement for conduct in California that would not trigger

the enhancement in others. Navarro-Lopez and the Supreme

Court’s insistence on a categorical analysis mandates that we

reach the under-inclusive result.

For the foregoing reasons, I would apply our en banc rule

in Navarro-Lopez and reverse the district court.