United States v. Christopher Johnson

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 18-10016

Plaintiff-Appellee,

D.C. No.

v. 2:17-cr-00057-

JCM-CWH-1

CHRISTOPHER JOHNSON,

Defendant-Appellant. OPINION

Appeal from the United States District Court

for the District of Nevada

James C. Mahan, District Judge, Presiding

Argued and Submitted December 21, 2018

San Francisco, California

Filed April 9, 2019

Before: Milan D. Smith, Jr., Jacqueline H. Nguyen,

and Mark J. Bennett, Circuit Judges.

Opinion by Judge Bennett

2 UNITED STATES V. JOHNSON

SUMMARY *

Criminal Law

The panel affirmed a sentence for being a felon in

possession of a firearm in a case in which the district court

applied a crime-of-violence enhancement pursuant to

U.S.S.G. § 2K2.1(a)(4)(A) based on the defendant’s prior

conviction for assault with a deadly weapon in violation of

Calif. Penal Code § 245(a)(1).

The panel held that, pursuant to Fed. R. Crim. P.

32(i)(3)(A), the defendant’s concessions in the district court

foreclose his newly minted argument that his conviction for

violating § 245(a)(1) was not for a felony – i.e., an offense

“punishable by imprisonment for a term exceeding one year”

– but rather for a misdemeanor, under California law.

Reviewing de novo, the panel held alternatively that the

defendant failed to establish that he received a misdemeanor

sentence for his § 245(a)(1) conviction. The panel explained

that the defendant’s offense never “wobbled” to a

misdemeanor, and that the district court therefore did not err

in concluding that the defendant was previously convicted of

an offense punishable by a term exceeding one year in

prison.

The panel held that Moncrieffe v. Holder, 569 U.S. 184

(2013), does not alter this court’s longstanding precedents

holding that a felony conviction under § 245(a)(1) is a crime

of violence. The panel explained that Moncrieffe’s upshot –

*

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. JOHNSON 3

a state felony conviction for conduct potentially subject to

both felony and misdemeanor punishment under the

Controlled Substance Act cannot be a predicate offense

under the categorical approach – is inapplicable to this case

because the fact of a § 245(a)(1) conviction establishes that

the defendant was convicted of an offense punishable by

more than one year in prison. The panel wrote that a wobbler

conviction is punishable as a felony, even if the court later

exercises its discretion to reduce the offense to a

misdemeanor.

COUNSEL

Amy B. Cleary (argued) and Cullen O. Macbeth, Assistant

Federal Public Defenders; Rene L. Valladares, Federal

Public Defender; Office of the Federal Public Defender, Las

Vegas, Nevada; for Defendant-Appellant.

Elizabeth O. White (argued), Appellate Chief; Dayle

Elieson, United States Attorney; United States Attorney’s

Office, Reno, Nevada; for Plaintiff-Appellee.

OPINION

BENNETT, Circuit Judge:

Christopher Johnson pleaded guilty to one count of being

a felon in possession of a firearm. The district court assigned

Johnson a base offense level of 20 based on a determination

that Johnson had previously been convicted of a “crime of

violence” as that term is used in § 2K2.1(a)(4)(A) of the U.S.

Sentencing Guidelines Manual (“USSG” or the

4 UNITED STATES V. JOHNSON

“Guidelines”), and sentenced Johnson to 30 months’

imprisonment.

On appeal, Johnson argues that the district court erred by

applying a crime-of-violence enhancement to his offense

level. We first consider whether Johnson’s concessions in

the district court foreclose his newly minted argument that

his underlying conviction for violation of California Penal

Code (“CPC”) § 245(a)(1) was not actually a felony under

California law. Reviewing de novo, we also examine

Johnson’s CPC § 245(a)(1) conviction to determine whether

it truly was for a felony, and if so, whether, in light of

Moncrieffe v. Holder, 569 U.S. 184 (2013), a felony

conviction for violating CPC § 245(a)(1) can be a predicate

offense for a crime-of-violence enhancement. Because the

answer to all three questions is yes, we affirm Johnson’s

sentence.

I.

A grand jury in the District of Nevada indicted Johnson

for possession of a firearm after having been convicted of a

felony, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2).

Johnson pleaded guilty without a plea agreement.

The U.S. Probation Office assigned Johnson a base

offense level of 20 pursuant to USSG § 2K2.1(a)(4)(A),

because of Johnson’s prior conviction for a felony crime of

violence. The predicate crime was Johnson’s 2014

California conviction for assault with a deadly weapon (not

a firearm), in violation of CPC § 245(a)(1), for which

Johnson served six months in county jail. Probation reduced

the offense level by three for acceptance of responsibility,

resulting in a total offense level of seventeen. Johnson’s

advisory Guidelines range was thirty-to-thirty-seven

months.

UNITED STATES V. JOHNSON 5

Johnson objected to Probation’s classification of his

assault-with-a-deadly-weapon conviction as a crime of

violence on the basis that the state offense lacked the mens

rea to qualify as a crime of violence under the categorical

approach. Johnson did not, however, object to Probation’s

classification of his CPC § 245(a)(1) conviction as a felony,

or otherwise assert that the conviction was not for an offense

punishable by more than one year in prison. Rather, he

conceded in his sentencing memorandum that “[h]e has two

prior felony convictions . . . . [He] received his second

felony conviction for Assault with a Deadly Weapon-Not a

Firearm, for which he received a suspended six-month jail

sentence and three years of probation.” The district judge

asked whether Johnson or his attorney found any “errors or

discrepancies” in the presentence investigation report

(“PSR”); both answered that they had not.

The district court held that a conviction under CPC

§ 245(a)(1) is a crime of violence, and overruled Johnson’s

objections to the PSR. The court sentenced Johnson to thirty

months’ imprisonment, the low end of his advisory

Guidelines range. Johnson timely appealed.

II.

“We review ‘de novo a district court’s determination that

a prior conviction qualifies as a “crime of violence” under

the Guidelines . . . .” United States v. Saavedra-Velazquez,

578 F.3d 1103, 1106 (9th Cir. 2009) (quoting United States

v. Rodriguez-Guzman, 506 F.3d 738, 740–41 (9th Cir.

2007)).

The parties dispute the proper standard of review for the

sub-issue whether Johnson’s underlying California

conviction for assault with a deadly weapon was punishable

by more than one year in prison. Johnson argues that we

6 UNITED STATES V. JOHNSON

should review this issue de novo because he has merely

advanced a new argument in support of his preserved claim

that the crime-of-violence enhancement was improper. The

government urges us to review for plain error only because

Johnson failed to make this argument in the district court and

because our consideration of this argument would invite

improper appellate fact-finding.

As we explain below, this dispute is immaterial to our

analysis because Johnson’s argument fails under plain error

and de novo review. We believe, however, that resolution

of this sub-issue is actually governed by Federal Rules of

Criminal Procedure Rule 32(i)(3)(A), which permits a

district court to find as facts, uncontroverted factual

statements in the PSR.

III.

The Guidelines assign a base offense level of twenty for

the offense of unlawful firearms possession by a felon if “the

defendant committed any part of the instant offense

subsequent to sustaining one felony conviction of either a

crime of violence or a controlled substance offense.” USSG

§ 2K2.1(a)(4)(A). The Guidelines define “crime of

violence” as

any offense under federal or state law,

punishable by imprisonment for a term

exceeding one year, that—

(1) has an element the use, attempted use,

or threatened use of physical force

against the person of another, or

(2) is murder, voluntary manslaughter,

kidnapping, aggravated assault, a

UNITED STATES V. JOHNSON 7

forcible sex offense, robbery, arson,

extortion, or the use or unlawful

possession of a firearm described in

26 U.S.C. § 5845(a) or explosive

material as defined in 18 U.S.C.

§ 841(c).

USSG § 4B1.2(a).

The two issues presented in this appeal are whether

Johnson’s assault-with-a-deadly-weapon conviction was for

an offense “punishable by imprisonment for a term

exceeding one year,” and if so, whether CPC § 245(a)(1) can

ever, under the categorical approach, be a crime of violence

after Moncrieffe. 1

A.

Johnson first argues that, by operation of California law,

his conviction was for a misdemeanor, not a felony. Because

under California law, a misdemeanor is not punishable by a

prison term exceeding one year, Johnson asserts that the

crime-of-violence enhancement should not apply.

Ultimately, Johnson’s concessions in the district court

foreclose this argument.

The relevant Commentary to the Guidelines defines

“felony conviction” as “a prior adult federal or state

1

Johnson also argues that CPC § 245(a) lacks the appropriate mens

rea requirement to be considered a crime of violence. As he

acknowledges, though, a long line of our cases—most recently United

States v. Vasquez-Gonzalez, 901 F.3d 1060, 1066–68 (9th Cir. 2018)—

squarely forecloses much of this argument, leaving only Johnson’s

contention that Moncrieffe abrogated our treatment of CPC § 245(a) in

the crime-of-violence context.

8 UNITED STATES V. JOHNSON

conviction for an offense punishable by death or

imprisonment for a term exceeding one year, regardless of

whether such offense is specifically designated as a felony

and regardless of the actual sentence imposed.” 2 USSG

§ 2K2.1 cmt. n.1. The underlying statute of conviction here

provides:

Any person who commits an assault upon the

person of another with a deadly weapon or

instrument other than a firearm shall be

punished by imprisonment in the state prison

for two, three, or four years, or in a county

jail for not exceeding one year, or by a fine

not exceeding ten thousand dollars ($10,000),

or by both the fine and imprisonment.

CPC § 245(a)(1).

The variety of punishments that a defendant can receive

for being convicted under CPC § 245(a)(1) demonstrate that

the statute is a wobbler. “In the parlance of California law

enforcement, a violation of the statute is a ‘wobbler’ that

may be punished either as a felony or as a misdemeanor.”

United States v. Diaz-Argueta, 564 F.3d 1047, 1049 (9th Cir.

2009). “Under California law, a ‘wobbler’ is presumptively

a felony and ‘remains a felony except when the discretion is

actually exercised’ to make the crime a misdemeanor.”

Ewing v. California, 538 U.S. 11, 16 (2003) (quoting People

v. Williams, 163 P.2d 692, 696 (Cal. 1945)). “To determine

whether a conviction for a wobbler is an offense punishable

by a term of imprisonment exceeding one year under . . . the

2

The definition of both “felony conviction” (USSG § 2K2.1 cmt.

n.1.) and “crime of violence,” (id. § 4B1.2 (a)) refer to “imprisonment

for a term exceeding one year.”

UNITED STATES V. JOHNSON 9

Guidelines, the sentencing court must look to state law: Did

the California court’s treatment of the offense convert it into

a ‘misdemeanor for all purposes’ under [CPC] section

17(b)?” United States v. Bridgeforth, 441 F.3d 864, 872 (9th

Cir. 2006). 3 If not, the offense remains a felony. A

conviction becomes a “misdemeanor for all purposes” when

certain conditions are met, including, as relevant here:

“[a]fter a judgment imposing a punishment other than

imprisonment in the state prison or” “[w]hen the court grants

probation to a defendant” without imposition of a sentence

“and at the time of granting probation . . . declares the

offense to be a misdemeanor.” CPC § 17(b)(1) & (3).

Johnson argues that his sentence of six months in the

county jail conclusively establishes that he received a

“punishment other than imprisonment in the state prison,”

thus converting his CPC § 245(a)(1) conviction into a

“misdemeanor for all purposes” under CPC § 17(b)(1). In

addition, Johnson asks us to take judicial notice of several

documents related to sentencing in his underlying CPC

§ 245(a)(1) conviction that, in Johnson’s view, establish that

his sentence converted his wobbler conviction into a

misdemeanor.

3

The Guidelines instruct us: “‘Felony conviction’ means a prior

adult federal or state conviction for an offense punishable by death or

imprisonment for a term exceeding one year, regardless of whether such

offense is specifically designated as a felony and regardless of the actual

sentence imposed.” USSG § 2K2.1 cmt. n.1. Despite this clear

admonition, our binding circuit precedent requires us, where wobblers

are concerned, to ignore the maximum sentence allowed by statute and

instead adopt the designation that California gives to the offense by

operation of CPC § 17(b). See Bridgeforth, 441 F.3d at 872; United

States v. Robinson, 967 F.3d 287, 293 (9th Cir. 1992), recognized as

overruled on other grounds by Ortega-Mendez v. Gonzales, 450 F.3d

1010, 1018–20 (9th Cir. 2006).

10 UNITED STATES V. JOHNSON

We reject Johnson’s belated attempts to characterize his

underlying California conviction as a misdemeanor.

Pursuant to Rule 32(i)(3)(A), the district court “may accept

any undisputed portion of the presentence report as a finding

of fact.” The PSR clearly characterized Johnson’s assault-

with-a-deadly-weapon conviction as a felony. As discussed

above, not only did Johnson fail to challenge that

description, his counsel affirmatively represented to the

court that he had two prior felony convictions, including the

CPC § 245(a)(1) conviction at issue here. Additionally,

Johnson and his attorney confirmed, in open court, the

factual accuracy of the PSR. Because Johnson did not

dispute that he had a felony conviction, the district court was

entitled, under Rule 32, to accept as a fact the PSR’s

characterization of his offense of conviction. Thus, pursuant

to Rule 32, Johnson’s concessions in the district court

foreclose his argument that his conviction was not a felony.

Johnson nonetheless argues that the PSR’s description of

his CPC § 245(a) conviction is at least ambiguous because it

also contained the notation that he was “sentenced to six

months in jail,” which, according to Johnson, means that he

received a qualifying misdemeanor sentence under CPC

§ 17(b)(1). We deem that notation irrelevant because

Johnson conceded that the PSR accurately described the

conviction as a felony. But even were this not so, the mere

fact that Johnson received a six-month jail sentence does not

necessarily mean that his conviction was for a misdemeanor.

The PSR does not indicate that the California sentencing

court entered a judgment imposing a six-month sentence.

Indeed, Johnson’s six-month term could have been a

condition of probation (which seems very likely, for the

reasons discussed below), in which case, the “six months in

jail” notation would not contradict the PSR’s

characterization of the offense as a felony.

UNITED STATES V. JOHNSON 11

We addressed a similar situation in United States v.

Grajeda, 581 F.3d 1186 (9th Cir. 2009), and our resolution

of the issue in Grajeda is instructive here. Grajeda argued

on appeal that the district court erred by failing to resolve a

factual dispute surrounding the prior convictions described

in the PSR. Grajeda, 581 F.3d at 1188. We reviewed the

objections that Grajeda made in the district court and

concluded that, contrary to his assertions on appeal, “his

objections raised only legal arguments, not factual ones.

Grajeda did not controvert the accuracy of the PSR or argue

that he had not been convicted of the listed crimes.” Id. at

1189. Because Grajeda did not challenge the factual basis for

his sentencing enhancement, Rule 32 permitted the district

court to accept the PSR’s factual findings regarding his

underlying convictions. Id. at 1188.

So too here. The record shows that Johnson did not

challenge the factual accuracy of the PSR’s description of

his CPC § 245(a)(1) conviction as a felony. 4 Rather, like the

defendant in Grajeda, Johnson’s objections were purely

legal: he argued that CPC § 245(a)(1) is overbroad under the

categorical approach and thus cannot be considered a crime

of violence. Because Johnson failed to controvert the PSR’s

felony classification of his § 245(a)(1) conviction, the

district court was entitled to accept that aspect of the PSR as

a finding of fact under Rule 32. See United States v. Romero-

Rendon, 220 F.3d 1159, 1163 n.4 (9th Cir. 2000) (“The

government bears the burden of proving the facts underlying

the enhancement. Where, as here, it submits the PSR as

proof, and the defendant submits no contrary evidence, the

only evidence before the sentencing judge is the

4

Indeed, he did the opposite and expressly confirmed that the PSR

was factually accurate.

12 UNITED STATES V. JOHNSON

uncontroverted PSR. In these cases, a judge may rely on it to

establish the factual basis for the enhancement.”).

We also hold alternatively that Johnson has failed to

establish that he received a misdemeanor sentence for his

§ 245(a)(1) conviction.

Johnson asserts that the state court record supports his

claim because the sentencing court asked, before

commencing the proceeding, whether there existed “any

legal cause why judgment should not be pronounced.” While

we agree that the court’s statement suggested it was about to

enter a judgment, we do not agree with Johnson that the court

actually did impose a judgment (none appears in the

documents that Johnson submitted) or that even if it did so,

any such judgment would convert his conviction into a

misdemeanor by operation of CPC § 17(b).

Rather, the documents that Johnson submitted contain

numerous indications that Johnson received a sentence that

did not convert his conviction to a misdemeanor. First the

document titled “Felony Plea Form,” suggests that Johnson

pleaded guilty to a felony. Second, that Form shows

Johnson’s initials next to this statement: “As a convicted

felon, I will not be able to own or possess any firearm.”

Third, the sentencing memorandum filed in the case, and

signed by the defendant, the defense attorney, and the

judicial officer, has two boxes at the top: “Felony” and

“Misdemeanor.” “Felony” is checked.

Finally, and perhaps most importantly, the documents

make clear that Johnson received, in addition to a term in

county jail, a term of 36 months’ formal probation. The

documents also show that Johnson’s 180-day term in county

jail was not a standalone sentence, but rather was a “legal

UNITED STATES V. JOHNSON 13

restriction apply[ing] to a decision to grant probation in this

case.”

“[A]n order granting probation is not a judgment.”

United States v. Robinson, 967 F.2d 287, 293 (9th Cir. 1992)

(quoting People v. Smith, 16 Cal. Rptr. 12, 13 (Dist. Ct. App.

1961)), abrogated on other grounds by Ortega-Mendez v.

Gonzales, 450 F.3d 1010, 1018–20 (9th Cir. 2006). Where,

as here, a California court grants probation “subject to

serving the first [six] months in jail,” the requirements of

CPC § 17(b) are not met. Id. at 292. Johnson’s offense

therefore never “wobbled” to a misdemeanor, and the district

court did not err in concluding that Johnson was previously

convicted of an offense punishable by a term exceeding one

year in prison.

Johnson argues that our recent decision in United States

v. Valencia-Mendoza, 912 F.3d 1215 (9th Cir. 2019),

requires us to hold that his conviction was for a

misdemeanor. In Velencia-Mendoza, we held that when we

consider whether a predicate offense (for purposes of a

sentencing enhancement) was “punishable by imprisonment

for a term exceeding one year,” we must consider, in

addition to the relevant statutory maximum sentence for the

offense, any mandatory sentencing factors that would limit

the actual maximum sentence that the defendant was eligible

to receive. Id. at 1224. Johnson argues that if we follow

Valencia-Mendoza’s guidance and take a “realistic look” (id.

at 1223) at Johnson’s CPC § 245(a)(1) conviction, we will

arrive at the conclusion that he was convicted of a

misdemeanor. We disagree.

In this case, there are no mandatory sentencing factors

that would potentially affect whether Johnson’s CPC

§ 245(a)(1) conviction was punishable by a prison term

exceeding one year. Rather, we look solely to whether the

14 UNITED STATES V. JOHNSON

actual sentence the court imposed converted Johnson’s

conviction to a “misdemeanor for all purposes” under CPC

§ 17(b)—if not, it remains punishable as a felony under

USSG § 2K2.1 cmt. n.1. See Bridgeforth, 441 F.3d at 872.

And as we discussed above, applying CPC § 17 to Johnson’s

conviction, we readily conclude that the state sentencing

court did not convert Johnson’s conviction to a

misdemeanor. Valencia-Mendoza does not alter that analysis

or our conclusion.

B.

We turn next to Johnson’s argument that Moncrieffe has

abrogated our treatment of wobbler offenses in the context

of a crime-of-violence sentencing enhancement. We start by

briefly describing the framework we use when evaluating

whether a prior conviction is for a crime of violence.

We employ the categorical approach described in Taylor

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

Johnson’s CPC § 245(a)(1) conviction is a “crime of

violence.” See Fernandez-Ruiz v. Gonzales, 466 F.3d 1121,

1125 (9th Cir. 2006) (en banc). We consider “whether the

offense defined by section 245(a)(1) is categorically a crime

of violence by assessing whether the full range of conduct

covered by the statute falls within the meaning of that term.”

Grajeda, 581 F.3d at 1189 (internal quotation marks and

alterations omitted) (quoting United States v. Juvenile

Female, 566 F.3d 943, 946 (9th Cir. 2009)); see also

Moncrieffe, 569 U.S. at 190 (“[W]e look ‘not to the facts of

the particular prior case,’ but instead to whether the ‘state

statute defining the crime of conviction’ categorically fits

within the ‘generic’ federal definition of a corresponding

aggravated felony.” (quoting Gonzales v. Duenas-Alvarez,

549 U.S. 183, 186 (2007)).

UNITED STATES V. JOHNSON 15

In Moncrieffe, the Court held that a Georgia conviction

for possession with intent to distribute marijuana was not

categorically an aggravated felony for purposes of the

Immigration and Nationality Act (“INA”), because the fact

of the conviction itself failed to establish that the offense of

conviction was comparable to an offense listed in the INA

(in that case, the INA referenced the Controlled Substances

Act (“CSA”)). Because the relevant Georgia law would

sustain a felony for transfer of only a small amount of

marijuana without remuneration, but the analogous CSA

provision would treat the same conduct as a misdemeanor,

the Georgia violation was not “‘necessarily’ [for] conduct

punishable as a felony under the CSA,” and therefore not

categorically an aggravated felony. 569 U.S. at 192. 5

Johnson argues that Moncrieffe abrogates our prior

holdings that require us to analyze a wobbler conviction

under the categorical approach. “The fact that the law

permits conviction as either a misdemeanor or felony does

not preclude a categorical analysis.” United States v.

Salazar-Mojica, 634 F.3d 1070, 1072 n.2 (9th Cir. 2011).

Under Moncrieffe, Johnson argues, “a statute categorically

qualifies as a crime of violence only if it is punishable by

more than a year in prison in every case.” Because CPC

5

The statute at issue in Moncrieffe is similar to the Guidelines

provision at issue here, insofar as it “provides that a ‘felony’ is an offense

for which the ‘maximum term of imprisonment authorized’ is ‘more than

one year.’” Moncrieffe, 569 U.S. at 188 (quoting 18 U.S.C.

§ 3559(a)(5)). However, § 3559(a)(5) does not contain language like

that present in the relevant Guideline Comment: “‘Felony conviction’”

means a prior adult federal or state conviction for an offense punishable

by death or imprisonment for a term exceeding one year, regardless of

whether such offense is specifically designated as a felony and

regardless of the actual sentence imposed.” USSG § 2K2.1 cmt. n.1.

(emphasis added).

16 UNITED STATES V. JOHNSON

§ 245(a)(1) can be punished as either a felony or a

misdemeanor (depending on whether it wobbles), Johnson

claims that it is not punishable by more than one year in

prison in every case, and therefore is not categorically a

crime of violence.

We reject this argument because it misinterprets the

scope of Moncrieffe. Moncrieffe reiterated the proposition

that “a state offense is a categorical match with a generic

federal offense only if a conviction of the state offense

‘“necessarily involved facts equating to the generic federal

offense.’” 569 U.S. at 190 (internal alterations omitted)

(quoting Shepard v. United States, 544 U.S. 13, 24 (2005)

(plurality opinion)). “[T]o satisfy the categorical approach, a

state . . . offense must meet two conditions: It must

‘necessarily’ proscribe conduct that is an offense under the

[federal analog], and the [federal analog] must ‘necessarily’

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

also id. at 197–98 (“[O]ur ‘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.” (emphasis added)

(quoting Carachuri-Rosendo v. Holder, 560 U.S. 563, 580

(2010))).

In this case, a conviction under § 245(a)(1) establishes

conduct that California law makes punishable as a felony.

Indeed, “under California law, a ‘wobbler’ is presumptively

a felony and ‘remains a felony except when the discretion is

actually exercised’ to make the crime a misdemeanor.”

Ewing, 538 U.S. at 16 (internal quotation marks omitted)

(quoting Williams, 163 P.2d at 696); see also People v.

Superior Court (Alvarez), 928 P.2d 1171, 1176 (Cal. 1997)

(observing that California law “rests the decision whether to

reduce a wobbler solely ‘in the discretion of the court’”)

UNITED STATES V. JOHNSON 17

(emphasis added). The fact of a CPC § 245(a)(1) conviction

establishes that the defendant was convicted of an offense

punishable by more than one year in prison. Thus,

Moncrieffe’s upshot—a state felony conviction for conduct

potentially subject to both felony and misdemeanor

punishment under the CSA cannot be a predicate offense

under the categorical approach—is inapplicable here. Cf.

People v. Finley, 33 Cal. Rptr. 31, 37 (Cal. Dist. Ct. App.

1963) (holding that a wobbler assault is always a felony for

purposes of felony-murder conviction where the defendant

is not charged or tried separately for the assault, because

“there is . . . no occasion or opportunity to impose a sentence

or to thus convert the felony into a misdemeanor. For the

purpose of the instant prosecution the infliction of such an

assault is felony and can be nothing less”).

Johnson argues, though, that a wobbler conviction is not

necessarily punishable as a felony because the California

legislature has given California sentencing courts the

discretion to determine whether the offense is a felony or

misdemeanor. Johnson’s argument misapprehends the

nature of a wobbler under California law. As noted above, a

wobbler “remains a felony . . . ‘unless and until the trial

court imposes a misdemeanor sentence.’” Ewing, 538 U.S.

at 28–29 (quoting In re Anderson, 447 P.2d 117, 126 (Cal.

1968)). Importantly, though, this “classification of the

offense as a misdemeanor [does] not operate retroactively to

the time of the crime’s commission, the charge, or the

adjudication of guilt.” People v. Park, 299 P.3d 1263, 1268

n.6 (Cal. 2013). A wobbler conviction is therefore

punishable as a felony, even if the court later exercises its

discretion to reduce the offense to a misdemeanor.

Moreover, this case does not implicate the concern,

identified by the Court in Moncrieffe, that underlies the

18 UNITED STATES V. JOHNSON

categorical approach: the potential unfairness of relitigation

of prior offenses to determine whether the facts of the prior

particular offense constitute a crime of violence. Instead, to

determine whether a conviction under CPC § 245(a)(1) is

punishable as a felony, the court need look only at the

defendant’s conviction and sentence. See CPC § 17(b);

Bridgeforth, 441 F.3d at 871.

IV.

Because Johnson confirmed to the district court that the

PSR accurately described his CPC § 245(a)(1) as a felony,

the court was entitled to rely on that characterization, and we

will not disturb it on appeal. We reach the same result

reviewing the classification of Johnson’s state-court

sentence de novo. Finally, Moncrieffe does not alter our

longstanding precedents holding that a felony conviction

under CPC § 245(a)(1) is a crime of violence. We therefore

reject Johnson’s challenges to the crime-of-violence

enhancement to his offense level.

The district court’s judgment is AFFIRMED.