# United States v. Snellenberger

> Court of Appeals for the Ninth Circuit · October 28, 2008 · 548 F.3d 699

URL: https://www.frixlaw.com/law-library/cases/9852134

## Case

- **Full name:** UNITED STATES of America, Plaintiff-Appellee, v. Michael Lee SNELLENBERGER, AKA Michael Lee Cutter, Michael Lee Davidson, Robert Eugene Frehly, Cutter Snellenberger, “Cutter,” Defendant-Appellant
- **Court:** Court of Appeals for the Ninth Circuit
- **Decided:** October 28, 2008
- **Citations:** 548 F.3d 699; 2008 U.S. App. LEXIS 22420; 2008 WL 4717190
- **Precedential status:** Published
- **Opinion:** Concurrence by Graber
- **Judges:** Kozinski, Reinhardt, Rymer, Kleinfeld, Hawkins, Thomas, Graber, Fletcher, Gould, Tallman, Smith
- **Cited by:** 119 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Abrogated on other grounds by Young v. Holder, 697 F.3d 976 (2012).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9852134

## How later opinions describe it (automated extraction)

- concluding that the defendant's prior conviction was a crime of violence where the charging document charged him with two burglaries--one generic (Count 1) and one not (Count 2)--and the minute order of judgment stated only that he entered a nolo contendere plea to Count 1
- holding that “minute orders” are judicial documents of “equal reliabil- ity” as those listed in Shepard and so may be consulted in applying the modified categorical analysis
- holding that “minute orders” are judicial documents of “equal reliability” as those listed in Shepard and so may be consulted in applying the modified categorical analysis
- holding clerk’s minute order, prepared by neutral officer of the court and subject to examination and challenge by defendant, sufficiently reliable under Shepard to consider in modified categorical analysis

## Opinion text

*704 GRABER, Circuit Judge,
with whom RYMER, KLEINFELD, HAWKINS, GOULD, and TALLMAN, join, concurring:
I join fully in the court’s opinion but write briefly to respond to the dissent, which asserts that we should reach the question whether Navarro-Lopez v. Gonzales, 503 F.3d 1063 (9th Cir.2007) (en banc), would counsel reversal.
Even if we were to consider this un-raised issue, we would have to do so using a “plain error” analysis. See United States v. Beng-Salazar, 452 F.3d 1088, 1092 (9th Cir.2006) (“We review unpre-served errors for plain error.” (citing Fed. R.Crim.P. 52(b)); see also United States v. Olano, 507 U.S. 725, 732 , 113 S.Ct. 1770 , 123 L.Ed.2d 508 (1993) (“[T]he authority created by Rule 52(b) is circumscribed. There must be an error that is plain and that affect[s] substantial rights.” (internal quotation marks omitted) (second alteration in original)). There is no plain error here.
As the opinion properly notes, Defendant Snellenberger pleaded nolo contende-re to “entering] an inhabited dwelling house and trailer coach and inhabited portion of a building occupied by Peter Mac-Pherson, with the intent to commit larceny and any felony.” Majority op. at 701-02 (internal quotation marks omitted) (alteration in original). Whether or not that conduct counts as “generic burglary” under the peculiarities of California law, the act described “involves conduct that presents a serious potential risk of physical injury to another,” U.S.S.G. § 4B1.2(a)(2), to wit, MacPherson. For that reason, we would still have to affirm Snellenberger’s conviction.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9852134. Public record. Not legal advice.