United States v. Ramiro Ramos-Medina

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA , No. 09-50408

Plaintiff-Appellee,

D.C. No.

v. 3:08-cr-03418-JM-1

RAMIRO RAMOS-MEDINA , ORDER AND

Defendant-Appellant. AMENDED OPINION

Appeal from the United States District Court

for the Southern District of California

Jeffrey T. Miller, Senior District Judge, Presiding

Argued and Submitted

March 8, 2012—Pasadena, California

Filed June 21, 2012

Amended January 11, 2013

Before: Jerome Farris, Richard R. Clifton,

and Sandra S. Ikuta, Circuit Judges.

Opinion by Judge Clifton

2 UNITED STATES V . RAMOS-MEDINA

SUMMARY*

Criminal Law

The panel amended a June 21, 2012, opinion and denied

a petition for panel rehearing, and the court denied a petition

for rehearing en banc, in a case in which the panel affirmed

a conviction and sentence for illegally re-entering the United

States after previously having been deported.

In the amended opinion, the panel held that United States

v. Becker, 919 F.2d 568 (9th Cir. 1990), and Lopez-Cardona

v. Holder, 662 F.3d 1110 (9th Cir. 2011), establish that first-

degree burglary under Calif. Penal Code § 459 is

categorically a crime of violence and thus an “aggravated

felony” for purposes of the Immigration and Nationality Act.

The panel therefore affirmed the conviction, rejecting the

defendant’s challenge to the validity of immigration

authorities’ decision to deport him via the expedited

administrative removal procedure and their determination that

he was not eligible for discretionary relief.

Affirming the crime-of-violence enhancement of the

defendant’s sentence pursuant to U.S.S.G. § 2L1.2(b)(1)(A)

based on his § 459 conviction, the panel applied the modified

categorical approach and concluded that the defendant was

convicted of all the elements of generic burglary.

The panel also held that the district court did not err in

denying the defendant a two-level downward adjustment for

*

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 . RAMOS-MEDINA 3

acceptance of responsibility under U.S.S.G. § 3E1.1(a). The

panel distinguished the district court’s denial of the

adjustment here from cases in which district courts

interpreted the Sentencing Guidelines to forbid the award of

such an adjustment to any defendant who forces the

government to prove his guilt at trial.

COUNSEL

Vincent J. Brunkow, Federal Defenders of San Diego, Inc.,

San Diego, California, for Appellant.

Laura E. Duffy, Bruce E. Castetter, Charlotte E. Kaiser

(argued), United States Attorney’s Office, San Diego,

California, for Appellee.

Sean Riordan, San Diego, California, for Amicus Curiae

ACLU of San Diego and Imperial Counties.

ORDER

This court’s opinion, filed June 21, 2012, is amended by

inserting the words “first-degree” before “burglary” in the

following places: on page 7304 of the slip opinion, in the

second sentence of the first paragraph; on page 7305, in the

third sentence of the second full paragraph; on page 7306, in

the first sentence under the heading “A. Ramos’s Prior

Deportation;”on page 7307, in the first sentence of the first

full paragraph and in the first and second sentences of the last

(partial) paragraph; on page 7308, in the first full sentence on

the page and the last sentence of the first full paragraph; on

page 7309, in the first sentence on the page (where the words

4 UNITED STATES V . RAMOS-MEDINA

“The petitioner in” should not be italicized); on page 7310, in

the first and second sentences of the first full paragraph; and

on page 7312, in the first full sentence on the page (excluding

the Taylor citation), beginning with the words “As described

above”.

The opinion is also amended by inserting “first-degree”

before “California” in the penultimate sentence in the first

partial paragraph on page 7308, by inserting “for first-degree

burglary” before “under § 459”in the last full sentence on

page 7309, and by inserting “as defined by California Penal

Code § 459” before “involves” in the last sentence (excluding

the Id. citation) of the first full paragraph on page 7310.

The opinion is amended by the addition of the following

new sentence at the end of footnote 2 on page 7306: <If the

burglar enters “an inhabited dwelling house, vessel, as

defined in the Harbors and Navigation Code, which is

inhabited and designed for habitation, floating home, as

defined in subdivision (d) of Section 18075.55 of the Health

and Safety Code, or trailer coach, as defined by the Vehicle

Code, or the inhabited portion of any other building,” the

burglary is “burglary of the first degree.” Cal. Penal Code

§ 460.>

Finally, the opinion is amended by replacing the last two

paragraphs, on pages 7316–17, with the following paragraph:

In this case, the district court did not

make the same mistake of law. It noted the

fact that “this case went to a full blown jury

trial,” but it based its final decision on “the

facts of this case and on this particular record”

as a whole. This was the correct analytical

UNITED STATES V . RAMOS-MEDINA 5

approach. See Cortes, 299 F.3d at 1038.4 The

district court’s ultimate decision that

Petitioner had not adequately accepted

responsibility was not clearly erroneous. “[A]

defendant who . . . frivolously contests[]

relevant conduct that the court determines to

be true has acted in a manner inconsistent

with acceptance of responsibility.” U.S.S.G.

§ 3E1.1 cmt. n.1(A). Ramos contested the

fact and validity of his deportation at trial.

The district court asked Ramos’s counsel not

to pursue this line of argument any further

because it “r[an] afoul of the in-limine motion

order with respect to the deportation order”

and was not supported by any “offer of

proof.” In addition, Ramos disputed during

trial and in a motion for judgment of acquittal

that he ever re-entered the United States. The

court denied the motion, holding that “[t]he

evidence is rather overwhelming that . . . the

defendant was detected and detained” in the

United States. On this record, the district

court did not clearly err in finding that

Ramos’s actions were inconsistent with

acceptance of responsibility. Accordingly, we

affirm Ramos’s sentence.

Footnote 4 within that paragraph, following the citation “See

Cortes, 299 F.3d at 1038.” is as follows:

Under this approach, a district court may deny

the reduction after “balanc[ing] all the

relevant factors,” Cortes, 299 F.3d at 1039,

but—in doing so—it “may not consider

6 UNITED STATES V . RAMOS-MEDINA

against the defendant any constitutionally

protected conduct.” United States v. Sitton,

968 F.2d 947, 962 (9th Cir. 1992) (quoting

United States v. Watt, 910 F.2d 587, 592 (9th

Cir. 1990)).

With the opinion as amended, the Appellant’s petition for

panel rehearing and petition for rehearing en banc, filed

August 6, 2012, is denied. The full court has been advised of

the petition for rehearing and rehearing en banc and no judge

has requested a vote on whether to rehear the matter en banc.

See Fed R. App. P. 35; 9th Cir. R. 35-1 & advisory committee

note 2. No subsequent petitions for rehearing, rehearing en

banc, or rehearing before the full court may be filed.

OPINION

CLIFTON, Circuit Judge:

Ramiro Ramos-Medina appeals from his conviction and

sentence for illegally re-entering the United States after

previously having been deported. We conclude that Ramos’s

prior conviction for first-degree burglary under California

Penal Code § 459 qualified as a crime of violence under the

immigration laws and for sentencing purposes. We also hold

that the district court did not err in denying Ramos a two-

level downward adjustment for acceptance of responsibility

under Sentencing Guidelines § 3E1.1(a). We distinguish the

district court’s denial of an acceptance of responsibility

adjustment here from cases in which district courts

interpreted the Guidelines to forbid the award of such an

adjustment to any defendant who forces the government to

UNITED STATES V . RAMOS-MEDINA 7

prove his guilt at trial. See United States v. Cortes, 299 F.3d

1030, 1038 (9th Cir. 2002); United States v. Ochoa-Gaytan,

265 F.3d 837, 842–43 (9th Cir. 2001). We affirm.

I. Background

In 2007, Ramos pled guilty to a charge of first-degree

residential burglary under California Penal Code § 459. The

court sentenced him to two years in prison.

Immigration officers determined that Ramos’s conviction

qualified as a “crime of violence” under 8 U.S.C. § 16(b) and

was thus an “aggravated felony” under the Immigration and

Nationality Act (“INA”), 8 U.S.C. §§ 1101(a)(43)(F);

1227(a)(2)(A)(iii). They explained to Ramos that this meant

he could be removed to Mexico under an administrative order

without appearing before an Immigration Judge. See

8 U.S.C. §§ 1227(a)(2)(A)(iii), 1228(b). They also explained

to Ramos that this procedure made him ineligible for

discretionary relief from removal. See 8 U.S.C. § 1228(b)(5).

Ramos signed a form acknowledging that he did not wish to

contest his deportation and did not wish to seek withholding

of removal. A Final Administrative Removal Order was

issued, and Ramos was taken to the Mexican border and

released.

Five days later, Border Patrol agents apprehended Ramos

on the United States side of the border. Ramos admitted that

he had illegally crossed back into the United States. He was

charged with violating 8 U.S.C. § 1326, which makes it a

crime for any alien who has been deported to re-enter the

United States without permission.

8 UNITED STATES V . RAMOS-MEDINA

Ramos moved to dismiss the indictment. He argued that

his California burglary conviction did not qualify as a

conviction for an aggravated felony and that it had therefore

been improper for the immigration authorities to deport him

via the expedited administrative process and to tell him that

he was not eligible for discretionary relief. The district court

held that his conviction for first-degree burglary under

California law did qualify as an aggravated felony and denied

Ramos’s motion. Ramos was tried before a jury and

convicted.

The district court calculated the Sentencing Guidelines

range. It determined that a base offense level of eight applied

to Ramos’s conviction. It applied a 16-level enhancement

under Guidelines § 2L1.2(b)(1)(A) because it determined that

Ramos’s prior burglary conviction qualified as a “crime of

violence.” The district court considered but rejected a two-

level downward adjustment for acceptance of responsibility.

It reasoned that

upon apprehension Mr. Ramos did admit the

elements of the conviction; however, this case

went to a full-blown jury trial, and,

importantly, I think the defense vigorously in

its examination of adverse witnesses and in its

argument to the jury challenged the

deportation removal element.

See U.S.S.G. § 3E1.1(a). Given the adjusted offense level of

24 and Ramos’s criminal history level of V, the Guidelines

suggested a sentence of 92 to 115 months.

The district court identified several reasons for a shorter

sentence, however. One of the reasons was that “at the time

UNITED STATES V . RAMOS-MEDINA 9

of Mr. Ramos’s apprehension, he had the right instincts by

essentially admitting the elements, coming to terms with his

case and cooperating with the authorities, and admitting that

he was a deported alien found in the United States.” The

district court characterized this final reason as going

“generally to the acceptance of responsibility you were

talking about, although not expressly acceptance of

responsibility” for the purposes of the two-level downward

adjustment. The district court settled on a sentence of 42

months.1

II. Discussion

We review de novo the district court’s denial of Ramos’s

motion to dismiss his indictment based on alleged defects in

his deportation. See United States v. Muro-Inclan, 249 F.3d

1180, 1182 (9th Cir. 2001). We review de novo the district

court’s interpretation of the Sentencing Guidelines. See

United States v. Rosas, 615 F.3d 1058, 1066 (9th Cir. 2010).

We review for clear error the district court’s finding that

Ramos did not accept responsibility for his crime. See id.

1

The district court concluded that Ramos’s final sentence could be

justified either as a downward departure under Guidelines § 5K2.0 or as

a below-Guidelines sentence based on the district court’s discretion under

United States v. Booker, 543 U.S. 220, 245 (2005) and the factors listed

in 18 U.S.C. § 3553(a).

10 UNITED STATES V . RAMOS-MEDINA

A. Ramos’s Prior Deportation

Ramos argues that his prior conviction for first-degree

burglary under California Penal Code § 4592 did not qualify

as an “aggravated felony.” Ramos was removable

irrespective of whether his prior conviction was for an

aggravated felony because he had entered this country

illegally. See 8 U.S.C. § 1227(a)(1)(B). The aggravated

felony determination was relevant, however, because it was

a prerequisite to the immigration authorities’ decision to

deport Ramos via the expedited administrative removal

procedure and their determination that he was not eligible for

discretionary relief. See 8 U.S.C. §§ 1227(a)(2)(A)(iii),

1228(b), 1229c(a)(1); United States v. Garcia-Martinez,

228 F.3d 956, 960 (9th Cir. 2000). Ramos argues that the

district court should not have allowed this tainted deportation

to serve as the predicate to criminal prosecution for post-

deportation re-entry under 8 U.S.C. § 1326. See generally

United States v. Ubaldo-Figueroa, 364 F.3d 1042, 1048 (9th

Cir. 2004) (describing what a § 1326 defendant must prove to

prevail in such a collateral attack on his prior deportation).

Our decisions in United States v. Becker, 919 F.2d 568

(9th Cir. 1990), and Lopez-Cardona v. Holder, 662 F.3d 1110

(9th Cir. 2011), establish that first-degree burglary under

2

That statute subjects to punishment “[e]very person who enters

[various enumerated structures] . . . with intent to commit grand or petit

larceny or any felony.” Cal. Penal Code § 459. If the burglar enters “an

inhabited dwelling house, vessel, as defined in the Harbors and Navigation

Code, which is inhabited and designed for habitation, floating home, as

defined in subdivision (d) of Section 18075.55 of the Health and Safety

Code, or trailer coach, as defined by the Vehicle Code, or the inhabited

portion of any other building,” the burglary is “burglary of the first

degree.” Cal. Penal Code § 460.

UNITED STATES V . RAMOS-MEDINA 11

California Penal Code § 459 is categorically a crime of

violence and thus an “aggravated felony” for the purposes of

the INA. We therefore affirm Ramos’s conviction.

In Becker, we held that first-degree burglary under

California Penal Code § 459 qualified as a “crime of

violence” under the Sentencing Guidelines. 919 F.2d at 573.

The defendant in Becker had prior convictions for first-degree

burglary under California Penal Code § 459 when he was

convicted of bank robbery. Id. at 570. The district court held

that each of the prior convictions counted as a “crime of

violence” and sentenced the defendant accordingly. Id. The

Sentencing Guidelines in effect at the time defined “crime of

violence” by reference to 18 U.S.C. § 16. Id. at 569 (citing

U.S.S.G. § 4B1.2 (1988)). Subsection (b) of 18 U.S.C. § 16

provided that any offense “that is a felony and that, by its

nature, involves a substantial risk that physical force against

the person or property of another may be used in the course

of committing the offense” was a “crime of violence.”

Accordingly, we examined whether first-degree burglary

under California Penal Code § 459 by its nature involved a

substantial risk of force. Becker, 919 F.2d at 571. We

reasoned that “[a]ny time a burglar enters a dwelling with

felonious or larcenous intent there is a risk that in the course

of committing the crime he will encounter one of its lawful

occupants, and use physical force against that occupant either

to accomplish his illegal purpose or to escape apprehension.”

Id.; see also Leocal v. Ashcroft, 543 U.S. 1, 10 (2004)

(burglary is “[t]he classic example” of a felony that involves

a substantial risk of physical force under 18 U.S.C. § 16(b)).

We concluded that California first-degree burglary was a

“crime of violence” under 18 U.S.C. § 16(b) and the then

current Sentencing Guidelines. Becker, 919 F.2d at 573; see

also Park, 649 F.3d at 1178–80.

12 UNITED STATES V . RAMOS-MEDINA

After we decided Becker, the Sentencing Commission

removed the reference to 18 U.S.C. § 16 from the relevant

section of the Sentencing Guidelines and replaced it with the

Commission’s own definition of “crime of violence.” See

United States v. Aguila-Montes de Oca, 655 F.3d 915, 919

(9th Cir. 2011) (en banc) (citing U.S.S.G. § 2L1.2 cmt.

n.1(B)(iii)). Under the new definition, a crime is a “crime of

violence” if it is included in a categorical list of generic

“crimes of violence” or is some other “offense under federal,

state, or local law that has an element the use, attempted use,

or threatened use of physical force against the person of

another.” U.S.S.G. § 2L1.2 cmt. n.1(B)(iii). Since crimes

that present merely a risk of force are not necessarily “crimes

of violence” under the new definition, the revision rendered

Becker inapplicable to sentencing for a violation of 8 U.S.C.

§ 1326. It did not, however, disturb Becker’s conclusion that

first-degree burglary under § 459 qualifies as a “crime of

violence” for the purposes of 18 U.S.C. § 16(b) and other

statutes that incorporate 18 U.S.C. § 16(b) by reference,

including the INA.

We recognized the continued vitality of Becker as a

construction of the INA in Lopez-Cardona, 662 F.3d at

1112–13. The petitioner in Lopez-Cardona, like the

defendants in Becker, had been convicted of first-degree

burglary under § 459. Id. at 1111. The Immigration Judge

and Board of Immigration Appeals determined that this

conviction qualified as a “crime of violence” under 18 U.S.C.

§ 16(b), and that the petitioner was therefore ineligible for

withholding of removal. Id. at 1112. On appeal, we

considered whether our decision in Aguila-Montes that

burglary under § 459 was not categorically a “crime of

violence” under the current version of the Sentencing

Guidelines overruled Becker’s holding that such burglary was

UNITED STATES V . RAMOS-MEDINA 13

categorically a crime of violence under 18 U.S.C. § 16(b). Id.

at 1112–13. We reasoned that our recognition in Aguila-

Montes that § 459’s unlawfulness requirement was different

than federal generic burglary’s unlawfulness requirement did

not change the fact that the conduct prohibited by § 459

involved a substantial risk of force. Every violation of § 459

might not present that level of risk, but “the proper inquiry

for the categorical approach is whether the conduct covered

by the crime presents the requisite risk of injury ‘in the

ordinary case.’” Id. at 1112 (quoting James v. United States,

550 U.S. 192, 208 (2007)); see also United States v. Park,

649 F.3d 1175, 1179–80 (9th Cir. 2011) (holding that § 459

is categorically a “crime of violence” under Guidelines

§ 4B1.2(a)(2) because “the usual or ordinary first-degree

burglary in California involves conduct that presents a serious

risk of physical violence and injury to others”).

Consequently, we concluded that Becker’s construction of

18 U.S.C. § 16(b) remained good law in the immigration

context and made the petitioner ineligible for withholding of

removal. Id.

We recently reached an identical result in Chuen Piu

Kwong v. Holder, 671 F.3d 872, 877–78 (9th Cir. 2011). In

that case, as in Lopez-Cardona, the petitioner argued that

Aguila-Montes implied that a conviction for first-degree

burglary under § 459 is no longer a “crime of violence” under

the INA. Id. at 877. Again, however, we recognized that

Aguila-Montes “did not contradict or affect Becker’s holding

that first-degree burglary under § 459 is a crime of violence

because it involves a substantial risk that physical force may

be used in the course of committing the offense.” Id. at 878

(citing Lopez-Cardona, 662 at 1113).

14 UNITED STATES V . RAMOS-MEDINA

Like the defendant in Becker and the petitioners in Lopez-

Cardona and Kwong, Ramos was convicted for first-degree

burglary under California Penal Code § 459. And just as in

those cases, we conclude that the conviction is a “crime of

violence” under 18 U.S.C. § 16(b) because the crime of first-

degree burglary as defined by California Penal Code § 459

involves a substantial risk of harm in the ordinary case. See,

e.g., Park, 649 F.3d at 1179–80.

Ramos argues that we should not consider ourselves

bound by the decisions in Lopez-Cardona and Kwong

because he presents a different argument than did the

petitioners in those cases. In support of that proposition he

cites Webster v. Fall, 266 U.S. 507, 511 (1925) (“Questions

which merely lurk in the record, neither brought to the

attention of the court nor ruled upon, are not to be considered

as having been so decided as to constitute precedents.”). See

also, e.g., Galam v. Carmel (In re Larry’s Apartment, L.L.C.),

249 F.3d 832, 839 (9th Cir. 2001) (holding that a question

lurked in the record of a previous case because “we had no

occasion to consider” it). The continuing vitality of Becker

was not an issue that “merely lurk[ed] in the record” of

Lopez-Cardona and Kwong, however. That was the central

question.

We are bound by the decisions in Lopez-Cardona and

Kwong. There has been no change in the relevant statutes or

regulations, nor in any governing authority, notably an

intervening decision of the Supreme Court.3 Absent such a

3

Both Lopez-Cardona and Kwong were decided after Aguila-Montes

and the California decisions Ramos cites: People v. Parson, 187 P.3d 1,

17 (Cal. 2008); People v. Cole, 67 Cal. Rptr. 3d 526, 529, 540 (Cal. Ct.

App. 2007); People v. Nguyen, 46 Cal. Rptr. 2d 840, 841, 844 (Cal. Ct.

UNITED STATES V . RAMOS-MEDINA 15

change, only an en banc panel of our court may overrule or

revise the binding precedent established by a published

opinion. As we observed in Miller v. Gammie, 335 F.3d 889,

900 (9th Cir. 2003) (en banc): “A goal of our circuit’s

decisions, including panel and en banc decisions, must be to

preserve the consistency of circuit law. The goal is codified

in procedures governing en banc review. See 28 U.S.C. § 46;

Fed. R. App. P. 35.” This panel is not free to disregard the

decision of another panel of our court simply because we

think the arguments have been characterized differently or

more persuasively by a new litigant.

To be sure, if we were persuaded by Ramos’s arguments,

we could ourselves ask our court to take the subject up en

banc, and that happens from time to time. See, e.g., Cyr v.

Reliance Standard Life Ins. Co., 642 F.3d 1202, 1205 (9th

Cir. 2011) (en banc). We have not, however, been persuaded

to take that course here. We affirm Ramos’s conviction.

B. Sentencing Adjustment For Aggravated Felony

Conviction

Ramos’s challenge to the enhancement of his sentence

based on his prior conviction for a “crime of violence”

requires us to apply the current Sentencing Guidelines’

definition of that term. The Guidelines’ Application notes

define a “crime of violence” to include “burglary of a

dwelling” and any other “offense under federal, state, or local

law that has an element the use, attempted use, or threatened

use of physical force against the person of another.” U.S.S.G.

App. 1995); People v. Felix, 28 Cal. Rptr. 2d 860, 867 (Cal. Ct. App.

1994); People v. Salemme, 3 Cal. Rptr. 2d 398, 399, 402 (Cal. Ct. App.

1992).

16 UNITED STATES V . RAMOS-MEDINA

§ 2L1.2 cmt. n.1(B)(iii); Aguila-Montes, 655 F.3d at 919. As

explained in the previous section, because the residual clause

of this definition focuses on the “use, attempted use, or

threatened use of physical force” against a person, Becker’s

holding regarding crimes involving a mere risk of physical

force is no longer applicable.

Instead, we must look to whether Ramos’s burglary

conviction qualified as a “burglary of a dwelling.” The

Supreme Court has held that the generic definition of

burglary “ha[s] the basic elements of unlawful or

unprivileged entry into, or remaining in, a building or

structure, with intent to commit a crime.” Taylor v. United

States, 495 U.S. 575, 599 (1990). As described above, we

held in Aguila-Montes that a conviction for first-degree

burglary under California Penal Code § 459 does not

categorically fall within that definition because “California’s

definition of ‘unlawful or unprivileged entry,’ unlike the

generic definition, permits a conviction for burglary of a

structure open to the public and of a structure that the

defendant is licensed or privileged to enter.” 655 F.3d at 944.

Because a conviction under California Penal Code § 459 is

not categorically a “burglary of a dwelling” constituting a

“crime of violence,” we must therefore apply the modified

categorical approach to determine whether Ramos was in fact

convicted of all the elements of generic burglary. See id. at

945–46. We conclude that he was. We therefore affirm the

district court’s application of the crime of violence sentence

enhancement.

The modified categorical approach “‘permit[s] the

sentencing court to go beyond the mere fact of conviction’”

and look at the judicial records of the defendant’s prior

conviction. Id. at 920 (quoting Taylor, 495 U.S. at 602).

UNITED STATES V . RAMOS-MEDINA 17

When a defendant is convicted in conjunction with a guilty

plea, the sentencing court may look to “the statement of

factual basis for the charge . . . shown by a transcript of plea

colloquy or by written plea agreement presented to the court.”

Shepard v. United States, 544 U.S. 13, 20 (2005) (internal

citation omitted). When a defendant stipulates during his

plea colloquy that a police report, probation report or similar

document contains the factual basis for his plea, the court

may also examine the incorporated document. See id.; United

States v. Almazan-Becerra, 537 F.3d 1094, 1097–1100 (9th

Cir. 2008); United States v. Espinoza-Cano, 456 F.3d 1126,

1131–32 (9th Cir. 2006).

In applying the modified categorical approach, the court

may take into account only facts on which the defendant’s

conviction “necessarily rested.” Aguila-Montes, 655 F.3d at

935–36. That does not mean, however, that courts are limited

only to facts that show an element of the offense. Id. at

936–40. As long as the prosecution’s theory of the case made

proof of a given fact “necessary” to the defendant’s

conviction, that fact is within the scope of the modified

categorical approach, irrespective of whether the fact is

directly relevant to an element of the offense or merely

incidental. Id.

During Ramos’s plea colloquy, Ramos and his attorney

confirmed that the admissions in Ramos’s probation report

formed the factual basis of Ramos’s guilty plea. Ramos

admitted to gaining entry to his neighbor’s apartment through

a window without permission or privilege, stealing some

jewelry, and fleeing out the window when the neighbor

returned. These facts demonstrate that the neighbor’s

apartment was not open to the public and that Ramos was not

licensed or privileged to enter the apartment. Because

18 UNITED STATES V . RAMOS-MEDINA

Ramos’s conviction for burglary “necessarily rested” on facts

showing that he made an unlawful or unprivileged entry into

the apartment with intent to commit a crime, Aguila-Montes,

655 F.3d at 941, we conclude that Ramos was convicted of a

“burglary of a dwelling,” which is a crime of violence under

U.S.S.G. § 2L1.2(b)(1)(A). Accordingly, the district court’s

application of a sixteen-level sentencing enhancement was

not erroneous.

C. Sentencing Adjustment for Acceptance of

Responsibility

The Sentencing Guidelines allow district courts to grant

a two-level downward adjustment to a defendant who “clearly

demonstrates acceptance of responsibility for his offense.”

U.S.S.G. § 3E1.1(a). The defendant bears the burden of

showing that he has accepted responsibility for his actions.

Cortes, 299 F.3d at 1038 (citing U.S.S.G. § 3E1.1(a)).

Ramos argues that the district court erroneously

interpreted the Sentencing Guidelines to forbid a downward

adjustment for acceptance of responsibility when a defendant

pleads not guilty and goes to trial. We disagree with Ramos’s

characterization of the district court’s decision. The district

court did not base its denial of the adjustment on Ramos’s

decision to put the government to its proof alone, but

searched Ramos’s conduct as a whole to determine whether

he nevertheless accepted responsibility. We hold that this

analysis met the standard described in our previous cases.

A guilty plea is one way a defendant can demonstrate

acceptance of responsibility, but it is not the only way.

Cortes, 299 F.3d at 1038. A defendant’s right to contest his

guilt before a jury is protected by the Constitution, and his

UNITED STATES V . RAMOS-MEDINA 19

decision to do so “cannot be held against him.” Id. (citing

United States v. Vance, 62 F.3d 1152, 1157 (9th Cir. 1995)).

Accordingly, a defendant who puts the government to its

proof may still be eligible for a downward adjustment if, and

only if, he has “otherwise demonstrated sincere contrition.”

Id.; see also U.S.S.G. § 3E1.1, cmt. n.2 (2007); Ochoa-

Gaytan, 265 F.3d at 842–43; United States v. McKinney,

15 F.3d 849, 852 (9th Cir. 1994).

We decided Ochoa-Gaytan, Cortes, and McKinney before

the Supreme Court’s opinion in Booker rendered the

Guidelines advisory. 543 U.S. at 245. Booker makes the rule

we announced in those cases less urgent, for a defendant’s

sentence now ultimately depends on the district court’s

judgment, not on the defendant’s eligibility for certain

sentencing range adjustments prescribed by the Guidelines.

Apart from the calculation of the appropriate range under the

advisory Guidelines, the sentencing court may consider

acceptance of responsibility separately in imposing a

sentence, even if the court determined that the defendant did

not qualify for a formal adjustment on those grounds under

the Guidelines. This case was an example of that. See

U.S.S.G. § 5K2.0 (listing grounds for departing from the

otherwise-recommended range); 18 U.S.C. § 3553(a) (listing

factors on which district courts may base a below-Guidelines

sentence). As described above, the district court imposed a

sentence substantially below the advisory guideline range in

part because of Ramos’s admissions.

Nevertheless, we continue to review whether the district

court correctly calculated the Guidelines range as the first

step in our review of criminal sentences. See United States v.

Barsumyan, 517 F.3d 1154, 1157 (9th Cir. 2008). Pursuant

to this task, we review how district courts have applied the

20 UNITED STATES V . RAMOS-MEDINA

acceptance of responsibility adjustment. See, e.g., United

States v. Garrido, 596 F.3d 613, 617–18 (9th Cir. 2010).

We vacated the sentence in Ochoa-Gaytan because we

concluded that the district court denied an acceptance of

responsibility adjustment based on the defendant’s decision

to contest the evidence against him at trial. 265 F.3d at 842.

The court ignored the fact that “at the time of [the

defendant’s] arrest, he did admit . . . his [immigration]

status,” and “made no findings concerning whether Ochoa-

Gaytan demonstrated contrition.” Id. at 842, 844 (internal

quotations omitted). Instead, it took into account only the

fact that the defendant

“moved to suppress his statements. He went

to trial. The issue was factual guilt. It wasn’t

to protect or preserve some constitutional

issues. I mean, it’s been an all-out attack on

his conviction. And I don’t see how 3E1.1.

acceptance applies. Basically, that is a whole

guideline inducement to facilitate pleading

guilty and to sweeten the pot.

...

[L]egally, I do not believe in any way that this

adjustment applies on this kind of case. . . .”

Id. at 842 (quoting the district court; alterations in Ochoa-

Gaytan). On appeal, we concluded that the district court

mistakenly applied a per se bar against downward adjustment

based on the defendant’s decision to go to trial. Id. at 844.

UNITED STATES V . RAMOS-MEDINA 21

Similarly, we concluded that the same mistake had been

made in Cortes. 299 F.3d at 1039. The sentencing court had

stated:

“In terms of acceptance of responsibility, I

also find that’s a legal issue, and that the

defendant in putting into question, and

determination by the jury, the issue of . . .

specific intent . . . . And this Court does not

believe it is appropriate to award him any

points for acceptance of responsibility.”

Id. (quoting the district court). Because it appeared that “the

district court may have believed, as a matter of law, that

Cortes was ineligible for the reduction,” we vacated the

defendant’s sentence and remanded “to allow the district

court to fully explicate the issue in the first instance.” Id.

In this case, the district court did not make the same

mistake of law. It noted the fact that “this case went to a full

blown jury trial,” but it based its final decision on “the facts

of this case and on this particular record” as a whole. This

was the correct analytical approach. See Cortes, 299 F.3d at

1038.4 The district court’s ultimate decision that Petitioner

had not adequately accepted responsibility was not clearly

erroneous. “[A] defendant who . . . frivolously contests[]

relevant conduct that the court determines to be true has acted

in a manner inconsistent with acceptance of responsibility.”

4

Under this approach, a district court may deny the reduction after

“balanc[ing] all the relevant factors,” Cortes, 299 F.3d at 1039, but— in

doing so— it “may not consider against the defendant any constitutionally

protected conduct.” United States v. Sitton, 968 F.2d 947, 962 (9th Cir.

1992) (quoting United States v. Watt, 910 F.2d 587, 592 (9th Cir. 1990)).

22 UNITED STATES V . RAMOS-MEDINA

U.S.S.G. § 3E1.1 cmt. n.1(A). Ramos contested the fact and

validity of his deportation at trial. The district court asked

Ramos’s counsel not to pursue this line of argument any

further because it “r[an] afoul of the in-limine motion order

with respect to the deportation order” and was not supported

by any “offer of proof.” In addition, Ramos disputed during

trial and in a motion for judgment of acquittal that he ever re-

entered the United States. The court denied the motion,

holding that “[t]he evidence is rather overwhelming

that . . . the defendant was detected and detained” in the

United States. On this record, the district court did not

clearly err in finding that Ramos’s actions were inconsistent

with acceptance of responsibility. Accordingly, we affirm

Ramos’s sentence.

AFFIRMED.