United States v. Jose Valencia-Mendoza

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 17-30158

Plaintiff-Appellee,

D.C. No.

v. 2:16-cr-00113-RMP-1

JOSE MANUEL VALENCIA-

MENDOZA, aka Jose OPINION

Valencia-Vargas,

Defendant-Appellant.

Appeal from the United States District Court

for the Eastern District of Washington

Rosanna Malouf Peterson, District Judge, Presiding

Argued and Submitted December 6, 2018

Seattle, Washington

Filed January 10, 2019

Before: Susan P. Graber, M. Margaret McKeown, and

Morgan B. Christen, Circuit Judges.

Opinion by Judge Graber

2 UNITED STATES V. VALENCIA-MENDOZA

SUMMARY*

Criminal Law

The panel vacated a sentence for unlawfully reentering

the United States after having been removed, and remanded

for resentencing, in a case in which the district court applied

a four-level increase to the offense level under U.S.S.G.

§ 2L1.2 on the ground that, prior to his removal order, the

defendant had been convicted of a Washington state offense

punishable by imprisonment for a term exceeding one year.

In applying the four-level increase because the

defendant’s Washington conviction carried a general statutory

maximum term of imprisonment of five years, the district

court applied this court’s precedent which required the

district court to disregard the maximum term that the

defendant actually could have received under state law. The

panel held that this precedent is irreconcilable with later

Supreme Court decisions—Carachuri-Rosendo v. Holder,

560 U.S. 563 (2010), and Moncrieffe v. Holder, 569 U.S. 184

(2013), which held that when determining whether an offense

is “punishable” by a certain term of imprisonment, courts

must consider both a crime’s statutory elements and

sentencing factors—and must be overruled.

Because under the Washington statutes that prescribe a

binding sentencing range, the actual maximum term that the

defendant could have received was six months, the panel held

*

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

UNITED STATES V. VALENCIA-MENDOZA 3

that the district court erred by concluding that the defendant’s

offense was punishable by more than one year in prison.

COUNSEL

William Miles Pope (argued), Federal Defenders of Eastern

Washington & Idaho, Spokane, Washington, for

Defendant-Appellant.

Matthew F. Duggan (argued), Assistant United States

Attorney; Joseph H. Harrington, United States Attorney;

United States Attorney’s Office, Spokane, Washington; for

Plaintiff-Appellee.

OPINION

GRABER, Circuit Judge:

Defendant Jose Manuel Valencia-Mendoza pleaded guilty

to unlawfully reentering the United States after having been

removed, in violation of 8 U.S.C. § 1326(a). At sentencing,

the district court applied a four-level increase to the total

offense level, under United States Sentencing Guideline

§ 2L1.2, because the court concluded that Defendant had

been convicted of a “felony” under Washington law. The

commentary to § 2L1.2 defines “felony” as “any federal,

state, or local offense punishable by imprisonment for a term

exceeding one year.” U.S.S.G. § 2L1.2 cmt. n.2.

Defendant’s conviction under Washington law carried a

general statutory maximum term of imprisonment of five

years. The district court faithfully applied our precedent and

stopped its analysis there: Because the general statutory

4 UNITED STATES V. VALENCIA-MENDOZA

maximum exceeded one year, the enhancement under § 2L1.2

applied.

But the actual maximum term that Defendant could have

received was only six months, because Washington law

imposed a mandatory sentencing range. Our precedent

required the district court to disregard the maximum term that

Defendant actually could have received under state law, in

favor of the maximum term that Defendant theoretically

could have received if different factual circumstances were

present. Reviewing de novo the interpretation of the

Sentencing Guidelines, United States v. Martinez, 870 F.3d

1163, 1165 (9th Cir. 2017), we conclude that later Supreme

Court decisions are clearly irreconcilable with our precedent

on this point. Accordingly, we vacate the sentence and

remand for resentencing.

FACTUAL AND PROCEDURAL HISTORY

In 2007, Defendant was convicted in Washington state

court of possession of cocaine, in violation of Revised Code

of Washington (“RCW”) section 69.50.4013.1 Defendant’s

conviction was for a “class C felony punishable under chapter

9A.20 RCW.” RCW § 69.50.4013(2). Section 9A.20.021

provided, in turn:

Unless a different maximum sentence for

a classified felony is specifically established

by a statute, no person convicted of a

classified felony shall be punished by

confinement or fine exceeding the following:

1

All citations to the RCW are to the version in effect in late 2007,

when Defendant was indicted, convicted, and sentenced.

UNITED STATES V. VALENCIA-MENDOZA 5

....

(c) For a class C felony, by confinement in

a state correctional institution for five years,

or by a fine in an amount fixed by the court of

ten thousand dollars, or by both such

confinement and fine.

The general statutory maximum term of imprisonment for

Defendant’s crime was, therefore, five years.

But, in addition to providing statutory maximum terms,

Washington law specified mandatory limits on criminal

sentences. RCW section 9.94A.505 provided, at the relevant

time: “Unless another term of confinement applies, the court

shall impose a sentence within the standard sentence range

established in RCW 9.94A.510 or 9.94A.517.” (Emphasis

added.) Section 9.94A.517 applied to drug convictions and

provided a two-dimensional “[d]rug offense sentencing grid.”

The grid defined the “standard sentence range[]” for an

offense, depending on the “seriousness level” and the

“offender score.” RCW § 9.94A.517(1).

Defendant’s crime had a “seriousness level” of “I.” See

RCW § 9.94A.520 (“The offense seriousness level is

determined by the offense of conviction.”); RCW

§ 9.94A.518 (defining convictions under section 69.50.4013

as having a seriousness level of “I”). The state court

calculated Defendant’s “offender score” as 0. See RCW

§ 9.94A.525 (providing detailed calculation of “offender

score”). Turning back to the drug offense sentencing grid, the

“standard sentence range” for seriousness level I and offender

level 0 was “0 to 6 months.” RCW § 9.94A.517(1).

6 UNITED STATES V. VALENCIA-MENDOZA

If certain aggravating circumstances were present, the

statutes contained adjustments to that range. RCW

§ 9.94A.533. For example, the presence or use of a firearm

could have resulted in a standard range that exceeded the

sentencing range described in the two-dimensional chart.

RCW § 9.94A.533(3)–(5). But none of those circumstances

was found to be present, so Defendant’s final standard range

was zero to six months.2 Defendant’s state criminal judgment

summarized the available sentence in a tidy table reproduced

below.

COUNT NO. OFFENDER SERIOUSNESS LEVEL STANDARD Plus Enhancements Total STANDARD MAXIMUM TERM

SCORE RANGE (not for Firearm (F), RANGE (including

including other deadly enhancements)

enhancements) weapon finding (D),

VUCSA (V) in a

protected zone,

Veh. Hom. (VH).

See RCW 46.61.520

or Juvenile present

(JP); Sexual

Motivation (SM)

1 0 1 0 to 6 months N/A 0 to 6 months 5 years

$10,000.00

The calculation of the final standard range (sometimes

referred to as the “presumptive sentence”) does not end the

statutory analysis. Washington law allowed the sentencing

court to deviate from the standard range—but only if certain

statutorily permitted findings were made. Section 9.94A.535,

titled “[d]epartures from the guidelines,” provided that “[t]he

2

In most cases, the statutory maximum term of imprisonment acted

as an absolute cap on the adjustments that could apply to the standard

sentence range. That is, if the adjustments led to a standard sentence

range that exceeded the statutory maximum, then the standard sentence

range was the statutory maximum. Different rules applied, however, if the

defendant was a “persistent offender.” RCW § 9.94A.533(3)(g). In some

cases, then, the defendant could have been sentenced to a term of

imprisonment greater than the statutory maximum as defined in RCW

section 9.94A.505. That possibility in an exceptional case is not at issue

here and does not affect our analysis.

UNITED STATES V. VALENCIA-MENDOZA 7

court may impose a sentence outside the standard sentence

range for an offense if it finds, considering the purpose of this

chapter, that there are substantial and compelling reasons

justifying an exceptional sentence.” It further provided that

“[w]henever a sentence outside the standard sentence range

is imposed, the court shall set forth the reasons for its

decision in written findings of fact and conclusions of law.”

RCW § 9.94A.535. (By contrast, sentences within the

standard range could be imposed without special descriptions.

RCW § 9.94A.530(1).)

Critically, whether “substantial and compelling reasons”

exist was not an open-ended inquiry. The statute specified

two categories of aggravating circumstances that permitted

departure from the guidelines: findings by the sentencing

court and findings by a jury. See RCW § 9.94A.535(2)

(listing the four aggravating circumstances that could be

found by the sentencing court); RCW § 9.94A.535(3) (listing

the 26 aggravating circumstances that could be found by the

jury). If an aggravating circumstance was found, then the

sentencing court could impose a sentence up to the statutory

maximum term. RCW § 9.94A.537(6). But unless one of the

statutorily specified aggravated circumstances was found, the

sentencing court was required to impose a sentence within

the standard range. RCW § 9.94A.505.

In Defendant’s case, as reflected on the face of the

criminal judgment, neither the court nor the jury found an

aggravating circumstance. Accordingly, Washington law

required the sentencing court to impose a sentence within the

final standard sentence range of zero to six months. The state

court selected 30 days in jail.

8 UNITED STATES V. VALENCIA-MENDOZA

Following that conviction, Defendant was removed from

the United States. In 2016, the government indicted

Defendant for unlawfully reentering the United States after

having been removed, in violation of 8 U.S.C. § 1326(a).

Defendant pleaded guilty, without a plea agreement.

At sentencing, the district court applied a four-level

enhancement under U.S.S.G. § 2L1.2. The relevant

Guideline3 provided:

If, before the defendant was ordered

deported or ordered removed from the United

States for the first time, the defendant

sustained–

....

(D) a conviction for any other felony

offense (other than an illegal reentry offense),

increase by 4 levels.

U.S.S.G. § 2L1.2(b)(2) (2016); see also id. § 2L1.2(b)(1)(D)

(2015) (using similar text). As noted, the commentary to the

Guideline defined the term “felony”:

“Felony” means any federal, state, or local

offense punishable by imprisonment for a

term exceeding one year.

3

Defendant was sentenced on August 17, 2017, so the applicable

version of the Guidelines is the November 1, 2016 version. United States

v. Valdavinos-Torres, 704 F.3d 679, 692 (9th Cir. 2012) (citing 18 U.S.C.

§ 3553(a)(4)(A)(ii)); accord U.S.S.G. § 1B1.11(a).

UNITED STATES V. VALENCIA-MENDOZA 9

Id. § 2L1.2 cmt. n.2 (2016); see also id. § 2L1.2 cmt. n.2

(2015) (defining the term identically). The court concluded

that Defendant had sustained a felony conviction in

Washington because the statutory maximum term of

imprisonment for the drug conviction was five years. The

court sentenced Defendant to 24 months of imprisonment.

Defendant timely appeals, challenging only the four-level

enhancement.

DISCUSSION

We must decide whether Defendant’s state conviction

was a “felony” for purposes of the federal Sentencing

Guideline. According to the government, the statutory

maximum punishment for Defendant’s state offense was five

years, so he was convicted of an “offense punishable by

imprisonment for a term exceeding one year.” U.S.S.G.

§ 2L1.2 cmt. n.2. Defendant acknowledges the statutory

maximum but argues that, because the maximum sentence

that he actually could have received was only six months, he

was not convicted of an “offense punishable by imprisonment

for a term exceeding one year.” Id.

A number of years ago, we sided with the government’s

argument. In United States v. Rios-Beltran, 361 F.3d 1204,

1208 (9th Cir. 2004), the defendant asserted that, under

Oregon law, “the maximum term of imprisonment the trial

court could impose for his conviction was 90 days.” We

rejected the relevance of the mandatory sentencing range

under state law:

The actual sentence imposed on an

individual for a prior conviction, or the actual

sentence that potentially could have been

10 UNITED STATES V. VALENCIA-MENDOZA

imposed based upon the particular facts of

that person’s case, is not the relevant inquiry.

We look to the maximum penalty allowed by

law in determining whether a prior conviction

constitutes an aggravated felony under state

law for purposes of § 2L1.2.

Id. The defendant “was convicted under an Oregon statute

which carries a maximum term of imprisonment of five years.

The fact that the state’s ‘guideline’ sentence is less than that

does not alter the statutory maximum.” Id. at 1209 (citations

omitted).

We used the same reasoning with respect to Washington’s

sentencing scheme in United States v. Murillo, 422 F.3d 1152

(9th Cir. 2005). The federal inquiry was whether the

defendant previously had been convicted of “a crime

punishable by imprisonment for a term exceeding one year.”

Id. at 1153 (quoting 18 U.S.C. § 922(g)(1)). The defendant

argued that, under Washington law,

the maximum sentence a court may impose

for a crime is defined by the maximum term

that may be imposed based solely on the facts

established by a guilty verdict. If no

aggravating factors are pleaded and proved,

then the maximum sentence must be

considered the maximum of the range in the

state’s sentencing guideline grid, not the

maximum set by the state’s applicable

criminal statute.

Id. at 1154. We disagreed: “the maximum sentence is the

statutory maximum sentence for the offense, not the

UNITED STATES V. VALENCIA-MENDOZA 11

maximum sentence available in the particular case under the

sentencing guidelines.” Id.; see also id. at 1155 (concluding

that the relevant maximum sentence is “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 according to the state’s sentencing guidelines”);

see also United States v. Crawford, 520 F.3d 1072, 1079–80

(9th Cir. 2008) (applying Murillo’s holding to the

determination under federal Guideline § 4B1.2(b) whether a

Washington conviction was for “an offense under federal or

state law, punishable by imprisonment for a term exceeding

one year”).

Unless there is a higher intervening authority, those cases

control. We conclude that our earlier holdings are “clearly

irreconcilable,” Miller v. Gammie, 335 F.3d 889, 899–900

(9th Cir. 2003) (en banc), with two later Supreme Court

precedents: Carachuri-Rosendo v. Holder, 560 U.S. 563

(2010), and Moncrieffe v. Holder, 569 U.S. 184 (2013).

In Carachuri-Rosendo, the Board of Immigration Appeals

concluded that the petitioner had been convicted of an

“aggravated felony” under the immigration laws. 560 U.S. at

571–72. The petitioner’s earlier conviction was in Texas

state court for simple possession of a controlled substance.

Id. at 570–71. Before that, the petitioner had been convicted

of a separate drug crime under state law. Id. at 570.

Understanding the federal statutory term “aggravated felony”

required navigating a “maze of statutory cross-references,”

which asked in part whether the crime was a “drug

trafficking” crime. Id. at 567. The courts had to determine

whether the petitioner’s conduct was “punishable” as a felony

under federal criminal laws. Id. at 566–70. “A felony is a

12 UNITED STATES V. VALENCIA-MENDOZA

crime for which the ‘maximum term of imprisonment

authorized’ is ‘more than one year.’” Id. at 567 (quoting 18

U.S.C. § 3559(a)).

Title 21 U.S.C. § 844(a) governs simple possession under

federal law. It provided, in relevant part:

Any person who violates this subsection may

be sentenced to a term of imprisonment of not

more than 1 year, . . . except that if he

commits such offense after . . . a prior

conviction for any drug, narcotic, or chemical

offense chargeable under the law of any State,

has become final, he shall be sentenced to a

term of imprisonment for . . . not more than 2

years . . . .

21 U.S.C. § 844(a) (2010). The Supreme Court noted that,

although a prior conviction need not be found by a jury, the

Court would nevertheless describe the crime as two separate

crimes: “first-time simple possession” (a misdemeanor

because the maximum penalty is one year) and “recidivist

simple possession” (a felony because the maximum penalty

is more than one year). Carachuri-Rosendo, 560 U.S. at

567–68 & n.3. The Court also noted that, to prove recidivist

simple possession, the prosecutor must provide pretrial

notice. Id. at 568–69. The government argued that the

petitioner’s crime was punishable under federal law by more

than one year of imprisonment because, had the petitioner

been prosecuted federally, the federal prosecutor could have

alleged the petitioner’s prior conviction and, accordingly,

convicted him of recidivist simple possession, a felony. Id. at

570.

UNITED STATES V. VALENCIA-MENDOZA 13

The Court rejected the government’s position and the

more generic “hypothetical approach” for five reasons. Id. at

575–81. First, “and most fundamentally,” the government’s

argument ignored the fact that the petitioner had been

convicted in state court of only simple possession, not

recidivist simple possession. Id. at 576–77. Second, as

noted, in order to convict a defendant under federal law of

recidivist simple possession, the government must give notice

and an opportunity to defend against that charge. Id. at 578.

The petitioner had not received such notice, even though

Texas law allows for a similar procedural mechanism; to

permit an immigration judge to rule that the petitioner could

have been convicted of recidivism “would denigrate the

independent judgment of state prosecutors to execute the laws

of those sovereigns.” Id. at 580. Third, the government’s

position misapplied the Court’s precedent:

Not only does the Government wish us to

consider a fictional federal felony—whether

the crime for which Carachuri–Rosendo was

actually convicted would be a felony under

the Controlled Substances Act—but the

Government also wants us to consider facts

not at issue in the crime of conviction (i.e., the

existence of a prior conviction) to determine

whether Carachuri–Rosendo could have been

charged with a federal felony. This

methodology is far removed from the more

focused, categorical inquiry employed in [an

earlier case].

Id. Fourth, the government’s position is inconsistent with

federal prosecutorial practice: “The Government’s

‘hypothetical’ approach to this case is therefore misleading as

14 UNITED STATES V. VALENCIA-MENDOZA

well as speculative, in that Carachuri–Rosendo’s

federal-court counterpart would not, in actuality, have faced

any felony charge.” Id. at 581. Finally, ambiguities in

criminal laws should be construed in the non-citizen’s favor.

Id.

In Moncrieffe, 569 U.S. at 188, the Supreme Court

analyzed the same maze of federal statutory cross-references,

beginning with the immigration law’s term “aggravated

felony.”

The upshot is that a noncitizen’s conviction of

an offense that the [Federal] Controlled

Substances Act (CSA) makes punishable by

more than one year’s imprisonment will be

counted as an “aggravated felony” for

immigration purposes. A conviction under

either state or federal law may qualify, but a

state offense constitutes a “felony punishable

under the Controlled Substances Act” only if

it proscribes conduct punishable as a felony

under that federal law.

Id. (some internal quotation marks omitted). The petitioner

had pleaded guilty, in Georgia state court, to possession with

intent to distribute a small amount of marijuana. Id. at

188–89. The Board of Immigration Appeals held that the

conviction constituted an “aggravated felony” for

immigration purposes, and the Fifth Circuit denied the

petition for review. Id. at 189. The Supreme Court reversed.

Id. at 190.

Under the statutory scheme at issue, “to satisfy the

categorical approach, a state drug offense must meet two

UNITED STATES V. VALENCIA-MENDOZA 15

conditions: It must ‘necessarily’ proscribe conduct that is an

offense under the CSA, and the CSA must ‘necessarily’

prescribe felony punishment for that conduct.” Id. at 192.

Turning to the CSA, the Court noted that possession of

marijuana with intent to distribute is a federal crime under 21

U.S.C. § 841(a)(1). Id. The Court then held that “we must

look to what punishment the CSA imposes for this offense.”

Id. at 193.

Section 841(b)(1)(D) provides:

In the case of less than 50 kilograms of

marihuana, . . . such person shall, except as

provided in paragraphs (4) and (5) of this

subsection, be sentenced to a term of

imprisonment of not more than 5 years . . . .

Paragraph (4), in turn, provides:

Notwithstanding paragraph (1)(D) of this

subsection, any person who violates

subsection (a) of this section by distributing a

small amount of marihuana for no

remuneration shall be treated as [a simple

drug possessor, subject to no more than a year

in prison].

21 U.S.C. § 841(b)(4). “These dovetailing provisions create

two mutually exclusive categories of punishment for CSA

marijuana distribution offenses: one a felony, and one not.

The only way to know whether a marijuana distribution

offense is punishable as a felony under the CSA is to know

whether the conditions described in paragraph (4) are present

or absent.” Moncrieffe, 569 U.S. at 194 (internal quotation

16 UNITED STATES V. VALENCIA-MENDOZA

marks and citation omitted). Because Georgia law does not

require proof of remuneration, the record was ambiguous. Id.

“Ambiguity on this point means that the conviction did not

‘necessarily’ involve facts that correspond to an offense

punishable as a felony under the CSA.” Id. at 194–95.

The government had argued that paragraph (4) was

merely a mitigating “sentencing factor,” not an “element” of

the offense, so the “offense” was punishable by more than a

year. Id. at 195. The Court disagreed that the label mattered,

largely because of the reasoning of Carachuri-Rosendo:

[The government’s position] is inconsistent

with Carachuri–Rosendo, our only decision to

address both “elements” and “sentencing

factors.” There we recognized that when

Congress has chosen to define the generic

federal offense by reference to punishment, it

may be necessary to take account of federal

sentencing factors too. See 130 S. Ct., at

2581–2582. In that case the relevant CSA

offense was simple possession, which

“becomes a ‘felony punishable under the

[CSA]’ only because the sentencing factor of

recidivism authorizes additional punishment

beyond one year, the criterion for a felony.”

Id., 130 S. Ct., at 2590 (SCALIA, J.,

concurring in judgment). We therefore called

the generic federal offense “recidivist simple

possession,” even though such a crime is not

actually “a separate offense” under the CSA,

but rather an “‘amalgam’” of offense elements

and sentencing factors.

UNITED STATES V. VALENCIA-MENDOZA 17

In other words, not only must the state

offense of conviction meet the “elements” of

the generic federal offense defined by the

INA, but the CSA must punish that offense as

a felony. Here, the facts giving rise to the

CSA offense establish a crime that may be

either a felony or a misdemeanor, depending

upon the presence or absence of certain

factors that are not themselves elements of the

crime. And so to qualify as an aggravated

felony, a conviction for the predicate offense

must necessarily establish those factors as

well.

Moncrieffe, 569 U.S. at 195–96 (one citation omitted).

The outcome in a hypothetical prosecution is

not the relevant inquiry. Rather, our “more

focused, categorical inquiry” is whether the

record of conviction of the predicate offense

necessarily establishes conduct that the CSA,

on its own terms, makes punishable as a

felony. . . . [W]e made clear in

Carachuri–Rosendo that, for purposes of the

INA, a generic federal offense may be defined

by reference to both “‘elements’ in the

traditional sense” and sentencing factors.

Id. at 197–98 (citations omitted).

Although those Supreme Court cases arose under

different statutes, they are central to our analysis here. The

cases concerned the interpretation of immigration laws and

federal crimes under the Controlled Substances Act. Here, by

18 UNITED STATES V. VALENCIA-MENDOZA

contrast, we must interpret the meaning of Sentencing

Guideline § 2L1.2. We recognize that

“[t]he clearly irreconcilable requirement is a

high standard.” United States v. Robertson,

875 F.3d 1281, 1291 (9th Cir. 2017)

(quotation marks omitted). Accordingly, “[i]t

is not enough for there to be some tension

between the intervening higher authority and

prior circuit precedent, or for the intervening

higher authority to cast doubt on the prior

circuit precedent.” Id. “So long as the court

can apply our prior circuit precedent without

running afoul of the intervening authority it

must do so.” Id. (quotation marks omitted).

Close v. Sotheby’s, Inc., 894 F.3d 1061, 1073 (9th Cir. 2018)

(second alteration in original). But we are persuaded that our

earlier precedents cannot survive.

The Washington statute, like the federal CSA, defined

only one crime by elements. Moncrieffe, 569 U.S. at 195–96.

And the Washington statute, like the federal CSA, imposed

different statutory maximum sentences depending on an

amalgam of elements and sentencing factors. Id. We held in

Rios-Beltran, Murillo, and Crawford that, when considering

whether a crime is “punishable” by more than one year, we

would look solely to the statutory maximum term of

imprisonment that corresponds to the elements of the crime

charged; we declined to consider sentencing factors. But in

Carachuri-Rosendo and Moncrieffe, the Supreme Court held

that, when considering whether a crime is “punishable” by

more than one year, the court must examine both the elements

and the sentencing factors that correspond to the crime of

UNITED STATES V. VALENCIA-MENDOZA 19

conviction. Accordingly, we hold that our earlier precedents

are irreconcilable with Carachuri-Rosendo and Moncrieffe

and must be overruled.

The Supreme Court’s decision in United States v.

Rodriquez, 553 U.S. 377 (2008), is not to the contrary.

There, the Supreme Court assessed the meaning of the

statutory phrase “‘maximum term of imprisonment . . .

prescribed by law.’” Id. at 380 (quoting 18 U.S.C.

§ 924(e)(2)(A)(ii)). The Court held that Congress intended

for courts to consider recidivist sentencing enhancements in

determining the maximum term of imprisonment. Id. at 393.

In its analysis, the Court rejected the notion that the top

sentence of a mandatory guidelines range—Washington

state’s guidelines in particular—was a relevant consideration.

Id. at 390–93. First, the Court held that the top sentence is

not truly the maximum because Washington law at the

relevant time permitted a sentencing judge to deviate for any

substantial and compelling reason; that discretion was not

limited by statute. Id. at 390–91 & n.5. Second, the Court

held that the specific concept of the “maximum term of

imprisonment” was always understood to mean the statutory

maximum, without regard to sentencing factors. Id. at

391–92.

Two important distinctions make Rodriquez irrelevant to

our analysis. First, unlike the statutory question at issue

there—what is the “maximum term of imprisonment . . .

prescribed by law”—the question at issue here is whether

Defendant was convicted of an offense “punishable” by more

than one year. “Punishable” suggests a realistic look at what

a particular defendant actually could receive, whereas

“maximum term of imprisonment . . . prescribed by law”

20 UNITED STATES V. VALENCIA-MENDOZA

suggests a mechanistic examination of the highest possible

term in the statute.

Second, Washington law is now materially more

restrictive than it was at the time of the relevant events in

Rodriquez. Under Washington law when Defendant was

convicted, the sentencing court could not deviate from the

statutory sentencing range unless it found that one of four

specific factual circumstances was present. It is plain from

the state criminal judgment that the sentencing court did not

find any of those circumstances, so the sentencing court was

bound by the statutory sentencing range. In other words, the

top sentence of the guidelines range was the maximum

possible statutory punishment. See United States v.

Rockymore, 909 F.3d 167, 172 (6th Cir. 2018) (“Because the

state [of Tennessee] did not seek a higher range when

prosecuting Rockymore, he accordingly was never subject to

the enhancements. Therefore, the ‘maximum term of

imprisonment’ that he could have received was [the

maximum term defined by the statutory sentencing

guidelines].”). That distinction—between (as here)

statutorily defined factual circumstances and (as in

Rodriquez) an open-ended inquiry into any potential factual

circumstance—is important because it defines the maximum

possible punishment assigned by the legislature. See id. at

171 (holding that, to determine the maximum term of

imprisonment under Tennessee law and Rodriquez, the court

must look to the mandatory sentencing scheme, including the

“offender-based” attributes).

Our holding today accords with decisions by several sister

circuits. Both the Eighth and Tenth Circuits have held that,

when determining whether a Kansas offense is “punishable”

by more than one year in prison, the Supreme Court’s recent

UNITED STATES V. VALENCIA-MENDOZA 21

cases require an examination of the maximum sentence

possible under the state’s mandatory sentencing guidelines.

United States v. Brooks, 751 F.3d 1204, 1209–13 (10th Cir.

2014); United States v. Haltiwanger, 637 F.3d 881, 883–84

(8th Cir. 2011). Similarly, the Fourth Circuit has held that,

when determining whether a North Carolina offense is

“punishable” by a prison term of more than one year, the

Supreme Court’s recent cases require the court to consider the

maximum sentence possible under the state’s mandatory

sentencing guidelines. United States v. Simmons, 649 F.3d

237 (4th Cir. 2011) (en banc). We are aware of no relevant

circuit precedent to the contrary.4

4

Our holding today also finds a surprising ally: the government’s

position in several cases in the Fifth Circuit. For example, in a case

involving the mandatory sentencing regime in Oregon, the government

asserted, in a motion to remand for resentencing:

To be “punishable” as a felony—that is, by

imprisonment for a term exceeding one year—a prior

state conviction must establish all the elements and

sentencing factors necessary to authorize the

punishment beyond one year. See Moncrieffe, 133 S.

Ct. at 1685-87; Carachuri-Rosendo, 560 U.S. at

569-70. The presumptive sentences in each of

Martinez’s cases—the maximum sentence the state

court could impose without additional fact-finding—are

below one year, so that neither prior conviction counts

as a “felony.”

United States v. Martinez, No. 14-41020, United States’ Agreed Motion

for Summary Remand (5th Cir. Jan. 14, 2015) (one citation truncated);

accord United States v. Zacarias-Lopez, No. 13-41011, Government’s

Agreed Motion for Summary Remand (5th Cir. Oct. 22, 2014); United

States v. Garcia-Duarte, No. 14-40516, United States’ Agreed Motion for

Summary Remand (5th Cir. Oct. 30, 2014); see also Brooks, 751 F.3d at

1213 n.7 (reviewing briefs filed by the government in cases originating in

the Sixth Circuit and concluding that “the Government has seemingly

22 UNITED STATES V. VALENCIA-MENDOZA

In sum, the Supreme Court has held that courts must

consider both a crime’s statutory elements and sentencing

factors when determining whether an offense is “punishable”

by a certain term of imprisonment. Here, we are called on to

decide whether Defendant’s earlier offense was punishable

under Washington law by more than one year, and we can no

longer follow our earlier precedents that eschewed

consideration of mandatory sentencing factors. As noted,

Washington statutes prescribe a required sentencing range

that binds the sentencing court. The sentencing range can be

modified, or rendered inapplicable altogether, if but only if

the judge or the jury makes certain factual findings. In this

case, no such finding was made, so the court was bound to

adhere to the statutory sentencing range. Defendant’s

offense—as actually prosecuted and adjudicated—was

punishable under Washington law by no more than six

months in prison. The district court therefore erred by

concluding that his offense was punishable by more than one

year in prison.

Sentence VACATED; REMANDED for resentencing.

taken contradictory positions on this issue in different federal courts”).

The government has failed to explain, either in briefing or at oral

argument, why its position has changed. Although the government’s

about-face does not affect our analysis, we note that some Justices have

concluded that “serious questions are raised when the sovereign itself

takes inconsistent positions in two separate criminal proceedings against

two of its citizens.” Bradshaw v. Stumpf, 545 U.S. 175, 189 (2005)

(Souter, J., joined by Ginsburg, J., concurring) (quoting Jacobs v. Scott,

513 U.S. 1067, 1070 (1995) (Stevens, J., dissenting from the denial of

certiorari)).