# United States v. Hernandez-Hernandez > Court of Appeals for the Ninth Circuit · December 15, 2005 · 431 F.3d 1212 URL: https://www.frixlaw.com/law-library/cases/9817430 ## Case - **Full name:** UNITED STATES of America, Plaintiff-Appellee, v. Misael HERNANDEZ-HERNANDEZ, Defendant-Appellant - **Court:** Court of Appeals for the Ninth Circuit - **Decided:** December 15, 2005 - **Citations:** 431 F.3d 1212; 2005 WL 3440815 - **Precedential status:** Published - **Opinion:** Concurring in part by Kleinfeld - **Judges:** Kleinfeld, Gould, Tallman - **Nature of suit:** Criminal - **Cited by:** 62 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9817430 ## How later opinions describe it (automated extraction) - holding that courts may consider a plea agreement and other documents contained in the record of conviction when applying the modified categorical approach - holding that a defendant was bound by his lawyer’s stipulation to the factual basis supporting his prior California state court plea agreement - holding that California’s false imprison- ment statute, which is similar to Florida’s, did not categori- cally constitute a crime of violence - explaining that “criminal defendants are bound by the admissions of fact made by their counsel in their presence and with their authority” ## Opinion text KLEINFELD, Circuit Judge, concurring in part and dissenting in part: I concur in all of Judge Tallman’s thoughtful majority opinion except for that portion of the analysis that applies the “modified categorical approach” to Hernandez’s prior conviction, resulting in a 16-level increase in Hernandez’s offense level. As to that part only, I respectfully dissent. The majority opinion, in my view, misreads the recent Supreme Court decision Shepard v. United States. 1 Although I suspect that Hernandez’s prior crime (the van incident described in the majority’s footnote 2) deserves a 16-level enhancement, I cannot agree with the majority’s analysis that it was legally permissible to give him one in this case. My objection to the majority opinion on this point is that it expands the modified categorical approach to the point where it is no longer categorical at all. In Taylor v. United States, the Supreme Court expressed its approval of what was then the uniform approach of the circuit courts for determining whether prior crimes qualified as aggravators under 18 *1223 U.S.C. § 924 (e). 2 The Court approved of the circuit courts’ view that “ § 924(e) mandates a formal categorical approach, looking only to the statutory definitions of the prior offenses, and not to the particular facts underlying those convictions.” 3 The Court was impressed with the “practical difficulties and potential unfairness” if in every case where an enhancement was sought “the trial court would have to determine what the conduct was” behind the prior convictions. 4 The Court held that the enhancement statute “generally requires the trial court to look only to the fact of conviction and to the statutory definition of the prior offense.” 5 If that were enough to find that the prior crime fell within the federal definition triggering the enhancement, then an enhancement would be proper. But if the statutory definition of the prior offense were broader than the federal category, then an enhancement would not be proper. That is the “categorical approach.” While the Court was speaking specifically to 18 U.S.C. § 924 (e), we and our sister circuits have taken the reasoning to apply generally to prior offenses used as aggravators for sentencing purposes. 6 What we call the “modified categorical approach” comes from subsequent language in Taylor slightly qualifying the strict categorical approach. The Court wrote that “[t]his categorical approach, however, may permit the sentencing court to go beyond the mere fact of conviction in a narrow range of cases where a jury was actually required to find all the elements of generic burglary” (burglary was the particular enhancement crime in Taylor). 7 Because Hernandez pleaded guilty to his prior crime, such a jury verdict was, of course, unavailable in the case at bar. We have, however, further extended this narrow exception to cases involving guilty pleas. Our en banc decision in United States v. Coronctr-Sanchez holds that “if a defendant enters a guilty plea, the sentencing court may consider the charging documents in conjunction with the plea agreement, the transcript of a plea proceeding, or the judgment to determine whether the defendant pled guilty to the elements of the generic crime.” 8 But we also held that the charging papers and the presentence report are not themselves cognizable without something more to establish the facts of the prior offense, such as a signed plea agreement. 9 The idea is to make sure that the record “unequivocally establishes” the facts necessary to conclude that the prior crime fell within the definition of the relevant aggravator. 10 In the case at bar, the “facts” of the prior crime are set out in footnote 2 of the majority opinion. This account came not from any of the sources — e.g., “the charging documents in conjunction with the plea agreement, the transcript of a plea proceeding, or the judgment” 11 — that we have *1224 already held are cognizable under the modified categorical approach. The source was a memorandum of law from the earlier case filed by counsel along with a motion under California Penal Code § 995. In section 995 of its penal code, California has codified the practice of moving to dismiss informations and indictments before trial for such defects as failure to allege commission of a crime. 12 Hernandez was charged by information for his prior offense, along with other offenses dismissed after the motion as part of the plea bargain. Under section 995, the state superior court is required to set aside an information upon the defendant’s motion if the defendant was committed without reasonable or probable cause. Thus, Hernandez’s lawyer in the earlier case filed a “995 motion,” arguing that even if Hernandez did what he was alleged to have done, it nevertheless did not amount to reasonable or probable cause for the offenses for which he was charged in the information. The 995 motion was a written argument of law by a lawyer. It was not signed by Hernandez, and the “facts” it recited were not verified by Hernandez. Defense counsel’s memorandum in support of the motion says that the only testimony considered at the preliminary hearing was that of one of the women in the van. The memorandum then proceeds to set out what she testified to at the preliminary hearing. Defense counsel’s summary of that testimony by a passenger in the van is what the majority sets out in footnote 2 as the facts of Hernandez’s prior crime. But those “facts” were written by defense counsel not for the purpose of saying “this is what happened.” Rather, the point was to say that “even if all this happened as the witness said, it still would not constitute the crimes charged in the information.” Hernandez entered into a plea bargain, and some of the charges were dismissed. At his change of plea hearing, Hernandez never personally acknowledged the truth of the allegations set out in footnote 2 of the majority’s opinion. The judge never personally addressed him to ask whether those things were true. Nor did the judge ask him what he had done. Instead, after the lengthy litany to assure that Hernandez knew of all his rights and that the plea was a knowing and voluntary waiver of them, the judge asked Hernandez’s lawyer if the factual basis for the plea was as set out in the “995 motion.” The prosecutor and defense counsel so stipulated. Here is the exchange: The Court: Are you willing to waive all those [trial] rights in this proceeding? The Defendant [Hernandez]: Yes. The Court: All right. Factual basis stipulated 995 motion? Ms. de la Pena [Hernandez’s Attorney]: Stipulated. Mr. Morgan [Prosecutor]: Stipulated. There are two reasons that this exchange does not, as we said in Corona-Sanchez, “unequivocally establish!]” the facts. First, Hernandez never acknowledged that he agreed that these facts had taken place, that he had ever seen his lawyer’s motion papers, or that he understood the terse exchange. Second, the terse exchange does not say whether the prosecutor and defense counsel are stipulating that everything in the 995 motion is a true account of what happened, or merely that the court may determine whether there is a factual basis for the plea based on the witness’s testimony. A “factual basis” sometimes consists of a defendant’s admission of what he did,- but sometimes does not, as when the prosecutor states what he thinks he could prove, and defense *1225 counsel stipulates that the prosecutor could put on persuasive evidence to this effect. Defense counsel may have been saying, in effect, “my client is not ready personally to say this is what he did, but he is prepared to plead guilty because the prosecutor will be able to put on evidence that this is what he did.” For purposes of the section 995 motion, no one had to prove that the facts as set out were true. Nor did anyone have to prove that they were true for purposes of Hernandez’s plea. Those facts have never been proved true nor have they ever been admitted to be true, by Hernandez or his attorney. Hernandez never admitted that what the single witness said was what actually happened. There was not any reason for him to do so — he was not asked, and he had a good plea bargain. A stipulation to a factual basis is not the same thing as a stipulation that the defendant agrees to those facts. Under California law, showing a factual basis “does not require more than establishing a prima facie factual basis for the charges ... [N]or does the trial court have to be convinced of defendant’s guilt.” 13 Even though Hernandez was bound by his attorney’s stipulation that the victim’s testimony at the preliminary hearing, as summarized in the 995 motion, furnished a factual basis for his change of plea, that is not the same thing as Hernandez or his lawyer admitting that all the facts in the testimony were true. The majority correctly points out that Taylor’s prohibition against looking to the facts underlying a prior crime is to prevent sentencing courts from engaging in “elaborate factfinding process regarding the defendant’s prior offenses.” 14 But that is just what will happen as a result of today’s novel expansion of what is cognizable evidence of the details of a prior offense. Lawyers tend to be intelligent advocates for their clients. Now that such evidence from the prior case as lawyers’ memoran-da and prosecution testimony in preliminary hearings can come in, prosecutors and defense attorneys will comb through these materials and litigate their significance during sentencing for subsequent crimes, perhaps many years later. This is a very time consuming way to go about sentencing. Worse, much worse, it is a highly unreliable way to find out what the defendants did at earlier times. It is difficult indeed to establish true histories of the crimes charged. Establishing the histories of earlier crimes, often crimes far in the past, is a task that in many cases is impossible to perform with reasonable accuracy. That is why we should use a categorical approach except in a “narrow range of cases,” as Taylor requires. 15 That is why the evidence of what happened should be “unequivocal,” as Corona-Sanchez requires. 16 Our decision today goes much too far toward vitiating the categorical approach, in favor of a particularized *1226 historical approach that relies on whatever scraps of historical evidence turn up. The majority opinion reads Shepard, v. United States 17 as though it liberalized the categorical approach imposed by Taylor v. United States. 18 Shepard did the opposite. It rejected the governments “call to ease away” from the “the heart” of Taylor, restricting the categorical approach to “records of the convicting court approaching the certainty of the record of conviction in a generic crime state,” 19 and said that if there were to be any easing of the categorical approach, Congress would have to do it. Shepard twice emphasized in its statement of its holding that to establish a fact narrowing a non-generic statement, the colloquy and confirmation of the narrowing fact must be “by the defendant”: We hold that enquiry under the ACCA to determine whether a plea of guilty to burglary defined by a nongeneric statute necessarily admitted elements of the generic offense is limited to the terms of the charging document, the terms of a plea agreement or transcript of colloquy between judge and defendant in which the factual basis for the plea was confirmed by the defendant, or to some comparable judicial record of this information. 20 What the district judge knew in this case is that defense counsel in the previous case had tersely stipulated that the witness statement furnished a sufficient factual basis for the plea, not the same thing at all as a “colloquy between judge and defendant” in which what the witness said was “confirmed by the defendant.” I respectfully suggest that the majority has misread Shepard as though it had expanded what Taylor allows, in the face of Shepard’s plain statement about Taylor’s narrow categorical approach that there was no “sufficient justification for upsetting precedent.” 21 . Shepard v. United States, 544 U.S. 13 , 125 S.Ct. 1254 , 161 L.Ed.2d 205 (2005). . Taylor v. United States, 495 U.S. 575, 600 , 110 S.Ct 2143 , 109 L.Ed.2d 607 (1990). . Id. . Id. at 601 , 110 S.Ct. 2143 . . Id. at 602 , 110 S.Ct. 2143 . . See, e.g., United States v. Corona-Sanchez, 291 F.3d 1201, 1203 (9th Cir.2002) (en banc). . Taylor, 495 U.S. at 602 , 110 S.Ct. 2143 . . Corona-Sanchez, 291 F.3d at 1211 . . Id. . Id.; see also United States v. Belless, 338 F.3d 1063, 1068-69 (9th Cir.2003) ("[T]he record does not reveal the conduct to which he pleaded and for which he was convicted. Accordingly, we cannot conclude that the trier of fact, the Wyoming judge in this case, necessarily found Belless guilty of conduct that, under a modified categorical approach, serves as a predicate offense.”). . Corona-Sanchez, 291 F.3d at 1211 . . Cf. Fed R. C Rim. P. 12. . People v. Holmes, 32 Cal.4th 432 , 9 Cal. Rptr.3d 678 , 84 P.3d 366, 372 (2004). . Majority Op. . Taylor, 495 U.S. at 602 , 110 S.Ct. 2143 . . Corona-Sanchez, 291 F.3d at 1211. United States v. Smith, 390 F.3d 661 (9th Cir.), as amended by 405 F.3d 726 (9th Cir.2005), upon which the majority relies, itself relies on our previous decision, which was vacated by the Supreme Court, in the case at bar. Smith is also factually distinguishable because the transcript of the earlier proceeding, in that case, left no doubt as to the facts, and no doubt that the defendant could understand what the lawyers were talking about. By contrast, here all we have is the judge's cryptic reference to the ''995,” not any description of the facts. There is nothing ''unequivocal” here that shows that the defendant knew what the judge and the lawyers were talking about. In Smith, the lawyers described the facts in English. In this case, they used a number to allude to a document filed at another time. . Shepard,-U.S.-, 125 S.Ct. 1254 , 161 L.Ed.2d 205 . . Taylor, 495 U.S. 575 , 110 S.Ct. 2143 , 109 L.Ed.2d 607 (1990). . Shepard, 125 S.Ct. at 1254 . . Id. at 1263. . Id. at 1261. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9817430. Public record. Not legal advice.