Petition for Writ of Certiorari — Edgar Barrera, Petitioner v. United States

Supreme Court briefFeb 17, 2023

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No. 23-__________

IN THE

SUPREME COURT OF THE UNITED STATES

__________◆___________

EDGAR BARRERA

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

__________◆___________

On Petition for a Writ of Certiorari

to the United States Court of Appeals For The Ninth Circuit

__________◆___________

APPENDIX

__________◆___________

HEATHER E. WILLIAMS

Federal Defender

PEGGY SASSO*

Assistant Federal Defender

2300 Tulare Street, Suite 330

Fresno, California 93721

(559) 487-5561

Peggy_Sasso@fd.org

*Counsel of Record for Petitioner

APPENDIX

Page

APPENDIX A:

Order denying Petition for Rehearing of the United States

Court of Appeals for the Ninth Circuit Court in United States of

America v. Edgar Barrera, U.S.C.A. 20-10368

(September 21, 2022) ............................................................................. 1a

APPENDIX B:

Decision of the United States Court of Appeals for the Ninth

Circuit Court in United States of America v. Edgar Barrera,

U.S.C.A. No. 20-10368 (April 27, 2022) ................................................ 2a

APPENDIX C:

Judgment in a Criminal Case by the United States District

Court for the Eastern District of California, U.S.D.C. 1:19-cr00275 (Oct. 30, 2020)............................................................................ 10a

APPENDIX D:

Indictment ............................................................................................ 17a

APPENDIX E:

Excerpt of Change of Plea Colloquy .................................................... 20a

APPENDIX F:

Excerpt of Sentencing Transcript........................................................ 30a

APPENDIX G:

Felony Advisement, Waiver of Rights and Plea Form ....................... 43a

APPENDIX H:

Decision of the United States Court of Appeals for the Ninth

Circuit Court in United States of America v. Steven Gerard

Walker, U.S.C.A. No. 18-10211 (March 20, 2020) .............................. 45a

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APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

FILED

SEP 21 2022

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

No.

20-10368

D.C. No.

1:19-cr-00275-DAD-SKO-1

Eastern District of California,

Fresno

EDGAR BARRERA, AKA Cito,

ORDER

Defendant-Appellant.

Before: CHRISTEN and BRESS, Circuit Judges, and FEINERMAN,* District

Judge.

The panel has voted unanimously to deny the petition for panel rehearing.

Judges Christen and Bress have voted to deny the petition for rehearing en banc.

The full court has been advised of the petition for rehearing en banc and no

judge has requested a vote on whether to rehear the matter en banc. Fed. R. App.

P. 35.

The petition for panel rehearing and the petition for rehearing en banc are

denied.

The Honorable Gary Feinerman, United States District Judge for the

Northern District of Illinois, sitting by designation.

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APPENDIX B

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

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FILED

APR 27 2022

MOLLY C. DWYER, CLERK

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

No.

U.S. COURT OF APPEALS

20-10368

D.C. No.

1:19-cr-00275-DAD-SKO-1

EDGAR BARRERA, AKA Cito,

MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court

for the Eastern District of California

Dale A. Drozd, District Judge, Presiding

Argued and Submitted March 16, 2022

San Francisco, California

Before: CHRISTEN and BRESS, Circuit Judges, and FEINERMAN,** District

Judge.

Concurrence by Judge FEINERMAN.

Edgar Barrera pleaded guilty to one count of being a felon in possession of a

firearm, in violation of 18 U.S.C. § 922(g)(1). He had three prior convictions for

domestic battery under California Penal Code § 273.5. The district court found

This disposition is not appropriate for publication and is not precedent

except as provided by Ninth Circuit Rule 36-3.

The Honorable Gary Feinerman, United States District Judge for the

Northern District of Illinois, sitting by designation.

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that those three convictions were for “violent felon[ies] … committed on occasions

different from one another,” and therefore sentenced him to the mandatory

minimum fifteen-year prison term under the Armed Career Criminal Act

(“ACCA”), 18 U.S.C. § 924(e)(1). Barrera appeals his sentence. We review de

novo whether a state conviction qualifies as a violent felony under the ACCA,

whether the district court’s factfinding regarding the timing of Barrera’s prior

offenses violated his Sixth Amendment jury trial right, and whether those prior

offenses in fact were committed on different occasions. See United States v.

Walker, 953 F.3d 577, 578 n.1 (9th Cir. 2020); United States v. Phillips, 149 F.3d

1026, 1031 (9th Cir. 1998). We review the district court’s underlying factual

findings for clear error. See United States v. Gardenhire, 784 F.3d 1277, 1280

(9th Cir. 2015). We affirm.

1. We held in Walker that domestic battery under § 273.5 is a violent felony

for ACCA purposes. See Walker, 953 F.3d at 579-80. As a three-judge panel, we

must adhere to that holding unless an “intervening higher authority” has “undercut

the theory or reasoning … in such a way that the cases are clearly irreconcilable.”

Miller v. Gammie, 335 F.3d 889, 900 (9th Cir. 2003) (en banc). Barrera points to

Borden v. United States, 141 S. Ct. 1817 (2021), but that decision is not clearly

irreconcilable with Walker.

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Borden held that an offense cannot “count as a ‘violent felony’ [for ACCA

purposes] if it requires only a mens rea of recklessness.” Id. at 1821-22 (plurality

opinion).1 That holding followed from the ACCA’s elements clause, which

defines “violent felony” to include a crime that “has as an element the use,

attempted use, or threatened use of physical force against the person of another.”

18 U.S.C. § 924(e)(2)(B)(i). Borden reasoned that the word “against”

“introduc[es] the conscious object (not the mere recipient) of the force,” which

means “the clause covers purposeful and knowing acts, but excludes reckless

conduct.” 141 S. Ct. at 1826.

Barrera’s prior convictions fall within Borden’s interpretation of the

ACCA’s elements clause because a person convicted of violating § 273.5 must

“willfully inflict a direct application of force on the victim,” “where willfully is a

synonym for intentionally.” Walker, 953 F.3d at 579 (alterations and emphasis

omitted) (first quoting Banuelos-Ayon v. Holder, 611 F.3d 1080, 1084 (9th Cir.

2010); then quoting United States v. Laurico-Yeno, 590 F.3d 818, 821 (9th Cir.

For purposes of this appeal, we assume that Justice Kagan’s plurality opinion in

Borden is controlling under Marks v. United States, 430 U.S. 188 (1977). See Lair

v. Bullock, 798 F.3d 736, 747 (9th Cir. 2015) (“With no majority opinion, [a

Supreme Court decision] cannot serve as the requisite ‘controlling authority’

capable of abrogating our precedent.”); Lair v. Bullock, 697 F.3d 1200, 1204-06

(9th Cir. 2012) (conducting a Marks analysis to decide whether a splintered

Supreme Court decision produced a “majority” opinion that abrogated circuit

precedent).

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2010)). In other words, § 273.5 requires that a defendant “consciously deployed”

force “opposed to or directed at” the victim. Borden, 141 S. Ct. at 1827. Walker

therefore is not clearly irreconcilable with Borden, and we accordingly remain

bound by Walker’s holding that a violation of § 273.5 is a “violent felony” under

the ACCA.

2. The district court did not violate Barrera’s Sixth Amendment jury trial

right by making a finding—that his prior § 273.5 offenses occurred on different

occasions—that increased his maximum sentence. See Apprendi v. New Jersey,

530 U.S. 466, 490 (2000) (holding that, in general, a jury must find “any fact that

increases the penalty for a crime beyond the prescribed statutory maximum”). But

for the ACCA’s fifteen-year mandatory minimum, Barrera’s maximum sentence

would have been ten years. See 18 U.S.C. § 924(a)(2).

A sentencing court “cannot[] rely on its own finding about a non-elemental

fact to increase a defendant’s maximum sentence.” Descamps v. United States,

570 U.S. 254, 270 (2013); see also Mathis v. United States, 579 U.S. 500, 511

(2016) (“[A] judge cannot go beyond identifying the crime of conviction to explore

the manner in which the defendant committed that offense.”). That prohibition has

a “narrow exception[]” for “the fact of a defendant’s a prior conviction.” United

States v. Haymond, 139 S. Ct. 2369, 2377 n.3 (2019) (plurality opinion) (citing

Almendarez-Torres v. United States, 523 U.S. 224 (1998)). We held in Walker that

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the exception authorizes “a sentencing judge [to] find the dates of prior offenses in

deciding if a defendant has committed three or more violent felonies.” 953 F.3d at

580 (citing United States v. Grisel, 488 F.3d 844, 845-47 (9th Cir. 2007) (en banc),

abrogated in part on other grounds by United States v. Stitt, 139 S. Ct. 399

(2018)).

Barrera argues that this aspect of Walker cannot be reconciled with the

Supreme Court’s decisions in Descamps and Mathis. But Walker postdates those

Supreme Court decisions, so it remains binding here. See Miller, 335 F.3d at 900.

3. The district court did not err in determining that Barrera’s prior § 273.5

offenses were “committed on occasions different from one another.” 18 U.S.C.

§ 924(e)(1). Barrera was convicted twice in 2010 and once in 2015. Relying on

charging documents alleging that his first two domestic battery offenses occurred

“[o]n or about December 25, 2009,” and “[o]n or about April 12, 2010,”

respectively, the district court found that all three prior offenses “occur[red] on

different dates.” That was not clear error.

Barrera suggests that his two 2010 convictions theoretically could have

arisen from conduct that occurred on the same day because California law does not

require a charging document’s allegations to match the offense’s actual date. But

the district court reasonably could have inferred from the fact that the offenses

were separately charged months apart that they were committed on different days.

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Cf. People v. Goolsby, 363 P.3d 623, 624 (Cal. 2015) (noting that California law

“generally requir[es] all offenses involving the same act or course of conduct to be

prosecuted in a single proceeding”). It follows that the district court correctly held

that Barrera’s three prior offenses occurred on separate occasions for ACCA

purposes. See Wooden v. United States, 142 S. Ct. 1063, 1070-71 (2022)

(explaining that although the separate-occasions analysis is “multi-factored,”

“[c]ourts … have nearly always treated offenses as occurring on separate occasions

if a person committed them a day or more apart”); see also United States v. Lewis,

991 F.2d 524, 526 (9th Cir. 1993) (holding that crimes committed three days apart

took place on separate occasions).

AFFIRMED.

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United States v. Barrera, No. 20-10368

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FILED

APR 27 2022

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FEINERMAN, District Judge, concurring:

The panel faithfully applies circuit precedent that forecloses Barrera’s Sixth

Amendment challenge to his sentence. See United States v. Walker, 953 F.3d 577,

580 (9th Cir. 2020); United States v. Grisel, 488 F.3d 844, 847 (9th Cir. 2007) (en

banc), abrogated in part on other grounds by United States v. Stitt, 139 S. Ct. 399

(2018)). No intervening higher authority has abrogated that precedent. See

Wooden v. United States, 142 S. Ct. 1063, 1068 n.3 (2022) (declining to consider

“whether the Sixth Amendment requires that a jury, rather than a judge, resolve

whether prior crimes occurred on a single occasion”). The panel’s disposition of

the Sixth Amendment issue accordingly is correct.

I write separately, however, to note that Walker and Grisel are difficult to

reconcile with the Supreme Court’s admonition that a sentencing judge evaluating

whether a defendant’s prior offenses qualify as ACCA predicate offenses “can do

no more, consistent with the Sixth Amendment, than determine what crime, with

what elements, the defendant was convicted of.” Mathis v. United States, 579 U.S.

500, 511-12 (2016). California Penal Code § 273.5 does not include the date of

offense as an element. It seems to follow, then, that the dates set forth in Barrera’s

charging documents are “amplifying but legally extraneous circumstances,” and

therefore that they “cannot license a later sentencing court to impose extra

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punishment.” Descamps v. United States, 570 U.S. 254, 270 (2013); see also

United States v. Haymond, 139 S. Ct. 2369, 2381 (2019) (plurality opinion) (“A

mandatory minimum … sentence that comes into play only as a result of additional

judicial factual findings by a preponderance of the evidence cannot stand.”); id. at

2386 (Breyer, J., concurring) (“[I]n an ordinary criminal prosecution, a jury must

find facts that trigger a mandatory minimum prison term.”).

Given the apparent conflict between circuit law and Supreme Court

precedent, this case may be an appropriate candidate for further review, whether by

the en banc court, see Fed. R. App. P. 35(a)(1), or the Supreme Court, see Wooden,

142 S. Ct. at 1087 n.7 (Gorsuch, J., concurring in the judgment) (noting that “there

is little doubt” the Supreme Court will consider the Sixth Amendment question

“soon”).

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AO 245B-CAED (Rev. 09/2019) Sheet 1 - Judgment in a Criminal Case

10a

APPENDIX C

UNITED STATES DISTRICT COURT

Eastern District of California

UNITED STATES OF AMERICA

EDGAR BARRERA

AKA: Cito

JUDGMENT IN A CRIMINAL CASE

Case Number: 1:19CR00275-001

Defendant's Attorney: Peggy Sasso, Assistant Federal Defender

THE DEFENDANT:

pleaded guilty to count(s) 1 of the Indictment.

, which was accepted by the court.

pleaded nolo contendere to count(s)

after a plea of not guilty.

was found guilty on count(s)

The defendant is adjudicated guilty of these offenses:

Title & Section

Nature of Offense

18 U.S.C. § 922(g)(1)

Felon in Possession of a Firearm

(Class A Felony)

The defendant is sentenced as provided in pages 2 through

Sentencing Reform Act of 1984.

Offense Ended

Count

11/10/2019

of this judgment. The sentence is imposed pursuant to the

The defendant has been found not guilty on count(s)

dismissed on the motion of the United States.

Count(s)

Indictment is to be dismissed by District Court on motion of the United States.

Appeal rights given.

Appeal rights waived.

It is ordered that the defendant must notify the United States attorney for this district within 30 days of any change of name,

residence, or mailing address until all fines, restitution, costs, and special assessments imposed by this judgment are fully paid. If

ordered to pay restitution or fine, the defendant must notify the court and United States attorney of material changes in economic

circumstances.

10/29/2020

Date of Imposition of Judgment

Signature of Judicial Officer

Dale A. Drozd, United States District Judge

Name & Title of Judicial Officer

10/30/2020

Date

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AO 245B-CAED (Rev. 09/2019) Sheet 2 - Imprisonment

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DEFENDANT: EDGAR BARRERA

CASE NUMBER: 1:19CR00275-001

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IMPRISONMENT

The defendant is hereby committed to the custody of the Federal Bureau of Prisons to be imprisoned for a total term of:

180 Months.

No TSR: Defendant shall cooperate in the collection of DNA.

The court makes the following recommendations to the Bureau of Prisons:

The court recommends that the defendant be incarcerated at Mendota, CA or Lompoc, CA, but only insofar as this accords with

security classification and space availability. The court recommends the defendant participate in the 500-Hour Bureau of

Prisons Substance Abuse Treatment Program.

The defendant is remanded to the custody of the United States Marshal.

The defendant shall surrender to the United States Marshal for this district

as notified by the United States Marshal.

The defendant shall surrender for service of sentence at the institution designated by the Bureau of Prisons:

before

as notified by the United States Marshal.

as notified by the Probation or Pretrial Services Officer.

If no such institution has been designated, to the United States Marshal for this district.

RETURN

I have executed this judgment as follows:

Defendant delivered on

, with a certified copy of this judgment.

United States Marshal

By Deputy United States Marshal

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AO 245B-CAED (Rev. 09/2019) Sheet 3 - Supervised Release

12a

DEFENDANT: EDGAR BARRERA

CASE NUMBER: 1:19CR00275-001

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SUPERVISED RELEASE

Upon release from imprisonment, you will be on supervised release for a term of:

60 Months.

MANDATORY CONDITIONS

You must not commit another federal, state or local crime.

You must not unlawfully possess a controlled substance.

You must refrain from any unlawful use of controlled substance. You must submit to one drug test within 15 days of release from

imprisonment and at least two (2) periodic drug tests thereafter, not to exceed four (4) drug tests per month.

The above drug testing condition is suspended, based on the court's determination that you pose a low risk of future substance

abuse.

You must make restitution in accordance with 18 U.S.C. §§ 3663 and 3663A or any other statute authorizing a sentence of

restitution.

You must cooperate in the collection of DNA as directed by the probation officer.

You must comply with the requirements of the Sex Offender Registration and Notification Act (34 U.S.C. § 20901, et seq.) as

directed by the probation officer, the Bureau of Prisons, or any state sex offender registration agency in the location where you

reside, work, are a student, or were convicted of a qualifying offense.

You must participate in an approved program for domestic violence.

You must comply with the standard conditions that have been adopted by this court as well as with any other conditions on the

attached page.

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AO 245B-CAED (Rev. 09/2019) Sheet 3 - Supervised Release

13a

DEFENDANT: EDGAR BARRERA

CASE NUMBER: 1:19CR00275-001

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STANDARD CONDITIONS OF SUPERVISION

As part of your supervised release, you must comply with the following standard conditions of supervision. These conditions are

imposed because they establish the basic expectations for your behavior while on supervision and identify the minimum tools needed

by probation officers to keep informed, report to the court about, and bring about improvements in your conduct and condition.

10.

11.

12.

13.

You must report to the probation office in the federal judicial district where you are authorized to reside within 72 hours of

release from imprisonment, unless the probation officer instructs you to report to a different probation office or within a

different time frame.

After initially reporting to the probation office, you will receive instructions from the court or the probation officer about how

and when you must report to the probation officer, and you must report to the probation officer as instructed.

You must not knowingly leave the federal judicial district where you are authorized to reside without first getting permission

from the court or the probation officer.

You must answer truthfully the questions asked by the probation officer.

You must live at a place approved by the probation officer. If you plan to change where you live or anything about your

living arrangements (such as the people you live with), you must notify the probation officer at least 10 days before the

change. If notifying the probation officer in advance is not possible due to unanticipated circumstances, you must notify the

probation officer within 72 hours of becoming aware of a change or expected change.

You must allow the probation officer to visit you at any time at your home or elsewhere, and you must permit the probation

officer to take any items prohibited by the conditions of your supervision that he or she observes in plain view.

You must work full time (at least 30 hours per week) at a lawful type of employment, unless the probation officer excuses

you from doing so. If you do not have full-time employment, you must try to find full-time employment, unless the probation

officer excuses you from doing so. If you plan to change where you work or anything about your work (such as your position

or your job responsibilities), you must notify the probation officer at least 10 days before the change. If notifying the

probation officer at least 10 days in advance is not possible due to unanticipated circumstances, you must notify the probation

officer within 72 hours of becoming aware of a change or expected change.

You must not communicate or interact with someone you know is engaged in criminal activity. If you know someone has

been convicted of a felony, you must not knowingly communicate or interact with that person without first getting the

permission of the probation officer.

If you are arrested or questioned by a law enforcement officer, you must notify the probation officer within 72 hours.

You must not own, possess, or have access to a firearm, ammunition, destructive device, or dangerous weapon (i.e., anything

that was designed, or was modified for, the specific purpose of causing bodily injury or death to another person, such as

nunchakus or tasers).

You must not act or make any agreement with a law enforcement agency to act as a confidential human source or informant

without first getting the permission of the court.

If the probation officer determines that you pose a risk to another person (including an organization), the probation officer

may require you to notify the person about the risk and you must comply with that instruction. The probation officer may

contact the person and confirm that you have notified the person about the risk.

You must follow the instructions of the probation officer related to the conditions of supervision.

U.S. Probation Office Use Only

A U.S. probation officer has instructed me on the conditions specified by the court and has provided me with a written copy of this

judgment containing these conditions. For further information regarding these conditions, see Overview of Probation and Supervised

Release Conditions, available at: www.uscourts.gov.

Defendant's Signature _____________________________

Date _________________

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AO 245B-CAED (Rev. 09/2019) Sheet 3 - Supervised Release

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DEFENDANT: EDGAR BARRERA

CASE NUMBER: 1:19CR00275-001

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SPECIAL CONDITIONS OF SUPERVISION

As directed by the probation officer, the defendant shall participate in an outpatient correctional treatment program to obtain

assistance for drug or alcohol abuse.

As directed by the probation officer, the defendant shall participate in a program of testing (i.e. breath, urine, sweat patch,

etc.) to determine if he has reverted to the use of drugs or alcohol.

As directed by the probation officer, the defendant shall participate in a program of outpatient mental health treatment.

As directed by the probation officer, the defendant shall complete up to 20 hours of unpaid community service per week until

employed for at least 30 hours per week or participating in a previously approved educational or vocational program.

As directed by the probation officer, the defendant shall participate in a co-payment plan for treatment or testing and shall

make payment directly to the vendor under contract with the United States Probation Office of up to $25 per month.

The defendant shall submit to the search of his person, property, house, residence, vehicle, papers, computer, other electronic

communication or data storage devices or media, and effects at any time, with or without a warrant, by any law enforcement

or probation officer in the lawful discharge of the officer's supervision functions with reasonable suspicion concerning

unlawful conduct or a violation of a condition of probation or supervised release. Failure to submit to a search may be

grounds for revocation. The defendant shall warn any other residents that the premises may be subject to searches pursuant to

this condition.

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AO 245B-CAED (Rev. 09/2019) Sheet 5 - Criminal Monetary Penalties

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DEFENDANT: EDGAR BARRERA

CASE NUMBER: 1:19CR00275-001

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CRIMINAL MONETARY PENALTIES

The defendant must pay the total criminal monetary penalties under the Schedule of Payments on Sheet 6.

TOTALS

Processing Fee

Assessment

$100.00

AVAA Assessment*

The determination of restitution is deferred until

after such determination.

JVTA Assessment**

Fine

Restitution

. An Amended Judgment in a Criminal Case (AO 245C) will be entered

If the defendant makes a partial payment, each payee shall receive an approximately proportioned payment, unless specified

otherwise in the priority order or percentage payment column below. However, pursuant to 18 U.S.C. § 3664(i), all nonfederal

victims must be paid before the United States is paid.

Restitution amount ordered pursuant to plea agreement $

The defendant must pay interest on restitution and a fine of more than $2,500, unless the restitution or fine is paid in full before

the fifteenth day after the date of the judgment, pursuant to 18 U.S.C. § 3612(f). All of the payment options on Sheet 6 may be

subject to penalties for delinquency and default, pursuant to 18 U.S.C. § 3612(g).

The court determined that the defendant does not have the ability to pay interest and it is ordered that:

The interest requirement is waived for the

The interest requirement for the

fine

restitution

restitution is modified as follows:

If incarcerated, payment of the fine is due during imprisonment at the rate of not less than $25 per quarter and payment shall be

through the Bureau of Prisons Inmate Financial Responsibility Program.

If incarcerated, payment of the restitution is due during imprisonment at the rate of not less than $25 per quarter and payment

shall be through the Bureau of Prisons Inmate Financial Responsibility Program.

* Amy, Vicky, and Andy Child Pornography Victim Assistance Act of 2018, Pub. L. No. 115-299

** Justice for Victims of Trafficking Act of 2015, Pub. L. No. 114-22.

*** Findings for the total amount of losses are required under Chapters 109A, 110, 110A, and 113A of Title 18 for offenses

committed on or after September 13, 1994, but before April 23, 1996.

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AO 245B-CAED (Rev. 09/2019) Sheet 6 - Schedule of Payments

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DEFENDANT: EDGAR BARRERA

CASE NUMBER: 1:19CR00275-001

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SCHEDULE OF PAYMENTS

Having assessed the defendant's ability to pay, payment of the total criminal monetary penalties is due as follows:

Lump sum payment of $

Not later than

in accordance

100.00 due immediately, balance due

, or

E,or

F below; or

Payment to begin immediately (may be combined with

F below); or

Payment in equal

(e.g. weekly, monthly, quarterly) installments of $

over a period of

(e.g. 30 or 60 days) after the date of this judgment; or

years), to commence

(e.g. weekly, monthly, quarterly) installments of $

over a period of

(e.g. months or

Payment in equal

(e.g. 30 or 60 days) after release from imprisonment to a term of supervision; or

years), to commence

(e.g. 30 or 60 days) after release

Payment during the term of supervised release/probation will commence within

from imprisonment. The court will set the payment plan based on an assessment of the defendants ability to pay at

that time; or

Special instructions regarding the payment of criminal monetary penalties:

(e.g. months or

Unless the court has expressly ordered otherwise, if this judgment imposes imprisonment, payment of criminal monetary penalties is

due during imprisonment. All criminal monetary penalties, except those payments made through the Federal Bureau of Prisons'

Inmate Financial Responsibility Program, are made to the clerk of the court.

The defendant shall receive credit for all payments previously made toward any criminal monetary penalties imposed.

Joint and Several

Defendant and Co-Defendant Names and Case Numbers (including defendant number), Total Amount, Joint and Several Amount,

and corresponding payee, if appropriate:

The defendant shall pay the cost of prosecution.

The defendant shall pay the following court cost(s):

The defendant shall forfeit the defendant's interest in the following property to the United States: The Preliminary Order of

Forfeiture is hereby made final as to this defendant and shall be incorporated into the Judgment.

Payments shall be applied in the following order: (1) assessment, (2) restitution principal, (3) restitution interest, (4) AVAA

assessment, (5) fine principal, (6) fine interest, (7) community restitution, (8) JVTA assessment, (9) penalties, and (10) costs,

including cost of prosecution and court costs.

http://apps.caed.circ9.dcn/CIRUser/Desktop/snapshot.aspx?redirect=judgment&tab=tpStandardConditionsSR&...

10/30/2020

Case 1:19-cr-00275-DAD-SKO Document 1 Filed 12/19/19 Page 1 of 3

17a

APPENDIX D

APPENDIX

MCGREGOR W. SCOTT

United States Attorney

JOSEPH BARTON

Assistant United States Attorney.

2500 Tulare Street, Suite 4401, Fresno, CA 93721

1 9 2019

Telephone: (559) 497-4000

Facsimile:

(559) 497-4099

Attorneys for Plaintiff

United States of America

IN THE UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA

? £

18 U.S.C. § 922(g)(1) (FELDl^Wo^fisSION OF

Plaintiff,

CASE yp.

UNITED STATES OF AMERICA,

FIREARM) (ONE COUNT); 18 U.S.C. § 924(d)(1)

AND 28 U.S.C. § 2461(c) (CRIMINAL

FORFEITURE)

EDGAR BARRERA,

Defendant.

INDICTMENT

COUNT ONE: [18 U.S.C. § 922(g)(1) - Felon in Possession of Firearm]

The Grand Jury charges:

EDGAR BARRERA,

defendant herein, as follows:

On or about November 10, 2019, in the County of Fresno, State and Eastern District of

California, the defendant, knowing that he had previously been convicted of a crime punishable by a

term of imprisonment exceeding one year, to wit:

1) Corporal Injury To Spouse, Cohabitant, Etc., in violation of California Penal Code

Section 273.5(a)(1), on or about January 6, 2010, in Fresno County Superior Court

Case Number F09301073,

INDICTMENT

Case 1:19-cr-00275-DAD-SKO Document 1 Filed 12/19/19 Page 2 of 3

18a

2) Corporal Injury To Spouse, Cohabitant, Etc. with Prior Assault, in violation of

California Penal Code Section 273.5(e)(1), on or about May 5, 2010, in Fresno

County Superior Court Case Number Fl 0300327,

3) Corporal Injury To Spouse, Cohabitant, Etc. with Prior Assault, in violation of

California Penal Code Section 273.5(f)(1), on or about January 16, 2015, in Fresno

County Superior Court Case Number Fl 5900007,

did knowingly possess a firearm, to wit: aNew England 12-Gauge Shotgun, Serial Number 208212, in

and affecting interstate commerce, in that said firearm had previously been transported in interstate and

foreign commerce, all in violation of Title 18, United States Code, Section 922(g)(1).

FORFEITURE ALLEGATION: [18 U.S.C. § 924(d)(1) and 28 U.S.C. § 2461(c) - Criminal Forfeiture]

Upon conviction of tire offense alleged in Count One of this Indictment, the defendant shall

forfeit to the United States, pursuant to Title 1 8. United States Code, Section 924(d)(1) and Title 28,

United States Code, Section 2461(c), any firearms, ammunition, and magazines involved in or used in

the knowing commission of the offense.

If any property subject to forfeiture, as a result of the offense alleged in Count One of this

Indictment, for which defendant is convicted:

cannot be located upon the exercise of due diligence,

has been transferred or sold to, or deposited with, a third party,

has been placed beyond the jurisdiction of the Court,

has been substantially diminished in value, or

has been commingled with other property which cannot be divided without difficulty,

it is the intent of the United States, pursuant to Title 21, United States Code, Section 853(p), as

///

INDICTMENT

Case 1:19-cr-00275-DAD-SKO

1:19-cr-00275-DAD-SKO Document 1 Filed 12/19/19 Page 3 of 3

19a

incorporated by Title 28, United States Code, Section 2461(c), to seek forfeiture of any other property of

the defendant up to the value of the property subject to forfeiture.

A TRUE BILL.

/s/ Signature on file w/AUSA

FOREPERSON

MCGREGOR W. SCOTT

By:

WSmff

KIRK E. SHERRIFF

Assistant United States Attorney

Chief, Fresno Office

14'

INDICTMENT

20a

APPENDIX E

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA

HON. DALE A. DROZD

UNITED STATES OF AMERICA,

Plaintiff,

vs.

EDGAR BARRERA,

Defendant.

Fresno, California

)

) 1:19-cr-00275-DAD

)

) CHANGE OF PLEA

)

Thursday, June 18, 2020

REPORTER'S TRANSCRIPT OF PROCEEDINGS

APPEARANCES OF COUNSEL:

For the Government:

STEPHANIE STOKMAN

Assistant U.S. Attorney

2500 Tulare Street, Rm. 4401

Fresno, California 93721

For the Defendant:

Federal Defender's Office

2300 Tulare Street

Suite 330

Fresno, CA 93721

BY: PEGGY SASSO

REPORTED BY:

RACHAEL LUNDY, CSR, RPR, Official Reporter

Proceedings recorded by mechanical stenography, transcript

produced by computer-aided transcription.

21a

impose a sentence that's either more severe or less severe

than that called for by those guidelines?

THE DEFENDANT:

THE COURT:

Yes, Your Honor.

Do you understand that parole has been

abolished in the federal criminal justice system, and if you

are sentenced to a term of imprisonment in this case, you will

not be released on parole?

THE DEFENDANT:

THE COURT:

Yes.

Do you understand that both you and the

government may have the right to appeal from a sentence that I

impose?

THE DEFENDANT:

THE COURT:

Yes, sir.

You've been charged in the indictment in

Count 1 with the being a convicted felon in possession of a

firearm, in violation of the 18 U.S.C. Section 922(g)(1).

you understand the nature of that charge, the essential

elements of that offense, and what the government would be

required to prove in order to convict you of that crime?

THE DEFENDANT:

THE COURT:

Yes, Your Honor.

Ms. Sasso, is there going to be an

admission to the forfeiture allegation?

MS. SASSO:

Yes, Your Honor.

THE COURT:

Okay.

And so long as we're talking about

that, Mr. Barrera, there is a forfeiture allegation in the

indictment that, if proven -- and Ms. Sasso indicates that you

22a

intend to admit to that allegation here this morning -- that

given that admission, that the property, specifically, any

firearms, ammunition, or magazines involved in the commission

of this offense, will be forfeited to the government, and we

won't discuss that matter any further at the time of your

sentencing.

to the government at that time.

THE DEFENDANT:

THE COURT:

I'll simply sign an order forfeiting the property

Do you understand that?

Yes, Your Honor.

Have you seen a copy of the indictment,

the document setting forth in writing that charge in Count 1

and the forfeiture allegation?

THE DEFENDANT:

I have seen a document, but I'm

pretty confident what my attorney has given me.

THE COURT:

Way back when you appeared in front of a

magistrate judge for arraignment, I'm pretty sure that's when

you entered your not guilty plea to the indictment.

copy of the indictment there at the table with you.

THE DEFENDANT:

THE COURT:

Okay.

Do you have any questions about

the nature of the charge that's been alleged against you?

THE DEFENDANT:

THE COURT:

I'm pretty sure I have,

because I still have all the paperwork.

Maybe.

You had a

No, I do not.

All right.

The maximum possible penalty

for this offense as alleged in Count 1 -MS. STOKMAN:

Judge, if I may.

23a

THE COURT:

MS. STOKMAN:

Yes.

He was advised of this with the

magistrate judge, but we also just wanted to have the Court

advise him that the government believes he falls under the

armed career criminal.

offense 15 years, with a maximum of life.

MS. SASSO:

So that would make the minimum of this

And we don't agree, but we under -- we

agree that -- that as it applies to -- if that applies too,

the maximum would be life, and a minimum of 15.

doesn't, the maximum is 10.

THE COURT:

If it

So Mr. Barrera, do you understand that if

the Court ultimately concludes that you do fall within the

armed career criminal provision of what is at 18 U.S.C.

Section 924(e) --

THE DEFENDANT:

MS. STOKMAN:

THE COURT:

Yes, sir.

Yeah.

-- that the maximum possible penalty for

this offense is a mandatory minimum of 15-year term of

imprisonment up to a maximum of life imprisonment, a fine of

up to $250,000, a five-year term of supervised release, and a

mandatory $100 special assessment.

I understand that -- I understand your lawyer is

going to be arguing that you do not fall within that

provision, and will be taking the position that the maximum

possible punishment is a ten-year term of imprisonment.

But

24a

do you understand that potentially the maximum here is a

mandatory minimum 15 up to a maximum of life?

THE DEFENDANT:

THE COURT:

Yes, Your Honor.

Do you understand what supervised release

is?

THE DEFENDANT:

THE COURT:

THE DEFENDANT:

THE COURT:

for any other offense or --

Yes, I do.

Are you a citizen of the United States?

Yes, I am.

Are you presently on parole or probation

THE DEFENDANT:

THE COURT:

No.

Okay.

Are you currently facing any other

criminal charge in this court or in any other court?

THE DEFENDANT:

THE COURT:

No, Your Honor.

You have a right to stand by your

previously entered plea of not guilty too if you desire to do

so.

Do you understand that right?

THE DEFENDANT:

THE COURT:

this charge.

Yes, Your Honor.

Also you have a right to a jury trial in

Do you understand that right?

THE DEFENDANT:

THE COURT:

Yes, Your Honor.

Do you understand that at that trial you

would be presumed innocent, the government would have the

burden of proving you guilty of the charge by competent

evidence and beyond a reasonable doubt?

25a

THE DEFENDANT:

THE COURT:

Yes.

At that trial, you would have the right

to be assisted by counsel, the right to see, hear, and

question the witnesses for the government through your

attorney.

offered by the government and to offer evidence on your own

behalf.

You'd also have the right to object to evidence

Do you understand each of these rights?

THE DEFENDANT:

THE COURT:

Yes, I do.

Do you understand that at that trial you

would have the right to testify in your own defense, but that

if you elected not to do so, no inference of guilt could be

drawn from the fact that you chose not to testify?

THE DEFENDANT:

THE COURT:

Yes, Your Honor.

Do you understand by entering a plea of

guilty to the charge in Count 1 here this morning, you'll

giving up all of these rights as to that charge, because

there'll be no trial, you'll no longer be presumed innocent of

the charges, because you'll be telling me you are, in fact,

guilty of it?

THE DEFENDANT:

THE COURT:

Yes, Your Honor.

Is that what you wish to do, plead guilty

to Count 1 of the indictment and admit the forfeiture

allegation?

THE DEFENDANT:

THE COURT:

That I do.

Counsel join in the waiver?

26a

MS. SASSO:

Yes, Your Honor.

THE COURT:

And Mr. Barrera, has anyone made any

promises to you in order to get you to plead guilty?

THE DEFENDANT:

THE COURT:

Has anyone threatened you or anyone close

to you in order to get you to plead guilty?

THE DEFENDANT:

THE COURT:

No.

No, sir.

Counsel, have I overlooked anything

required under Rule 11?

MS. SASSO:

MS. STOKMAN:

THE COURT:

No, Your Honor.

No.

Mr. Barrera, what then is your plea to

the charge that on or about November 10, 2019, in Fresno

County, State and Eastern District of California, knowing that

you had previously been convicted of a crime punishable by a

term of imprisonment exceeding one year, specifically, the

three convictions for corporal injury to a spouse and in

violation of California Penal Code Section 273.5, that you

suffered on or about January 6, 2010?

MS. SASSO:

Your Honor, just to be clear, we're not

pleading to -- we have a factual basis that we submitted to

the Court.

So he's not pleading because he doesn't know

specifics.

So he's admitting that he has three prior

convictions for violating 273.5.

THE COURT:

All right.

Sir, what is your plea to the

27a

charge that on or about November 10, 2019, in Fresno County,

State and Eastern District of California, you -- knowing that

you had been previously convicted of a crime punishable by a

term of imprisonment exceeding one year, specifically prior

convictions for California Penal Code Section 273.5, you did

knowingly possess a firearm, the New England 12-gauge shotgun,

in and affecting interstate commerce, and that firearm had

previously been transported in interstate or foreign commerce,

all in violation 18 U.S.C. 922(g)(1); guilty or not guilty,

sir?

THE DEFENDANT:

THE COURT:

And do you admit or deny the forfeiture

allegation alleged in the indictment?

THE DEFENDANT:

THE COURT:

Guilty.

I believe I do admit.

All right.

And a factual basis for that

plea?

THE DEFENDANT:

THE COURT:

I don't understand.

Oh, one of the lawyers.

I'm not sure

which, whether Ms. Stokman or Ms. Sasso is going to read the

factual basis into the record, but when they do, please listen

to what they say.

THE DEFENDANT:

MS. SASSO:

All right.

If you want, I can read it, or did you

have -- did you have it?

MS. STOKMAN:

-- if you want to read it.

But I'm

28a

pulling it up if you want me to read it.

prevent noise on the record, and it was attached to that.

I'm pulling that up now if you'd like me to read it.

MS. SASSO:

MS. STOKMAN:

MS. SASSO:

MS. STOKMAN:

I closed my email to

It doesn't matter to me.

Give me one second, please.

Okay.

Judge, in the factual basis that

Ms. Sasso and Mr. Barton agreed upon that, on or about

November 10, 2019, in the County of Fresno, State and Eastern

District of California, the defendant knowingly possessed a

firearm, specifically, a New England 12-gauge shotgun with

serial number 208212, which had been shipped and transported

in interstate and foreign commerce.

At the time he possessed the firearm, the defendant

knew that he had three prior convictions for violating

California Penal Code Section 273.5, and at the time he

possessed the firearm, the defendant knew that each of the

prior convictions for violating California Penal Code Section

273.5 were convictions for a crime punishable by imprisonment

for a term exceeding one year.

THE COURT:

And that's what the government would

prove if this case proceeded to trial, correct?

MS. STOKMAN:

THE COURT:

Correct, yes.

And Mr. Barrera, is that an accurate

statement as to what it is you did?

29a

THE DEFENDANT:

THE COURT:

THE DEFENDANT:

THE COURT:

Yeah, pretty accurate.

Any change to it at all?

No, sir.

So it is an accurate statement as to what

it is you did?

THE DEFENDANT:

THE COURT:

That it is, sir.

All right.

I find that there's a factual

basis for Mr. Barrera's plea of guilty.

I find that he

understands the nature of the charge and the consequences of

his plea.

I also find that he understands his constitutional

rights, and his plea of guilty was freely and voluntarily

made.

Accordingly, I accept that plea of guilty.

The matter will be referred to the probation office

for preparation of a presentence report.

scheduled for?

Sentencing to be

THE CLERK:

September 11th, at 8:30.

THE COURT:

Is that date agreeable?

THE DEFENDANT:

THE COURT:

I didn't hear the date.

September 11th, at 8:30.

Is that date

agreeable to counsel?

MS. SASSO:

Yes, Your Honor.

MS. STOKMAN:

It is, yes.

THE COURT:

All right.

MS. SASSO:

No, Your Honor.

Anything further?

Thank you.

30a

APPENDIX F

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA

HON. DALE A. DROZD

UNITED STATES OF AMERICA,

Plaintiff,

vs.

EDGAR BARRERA,

Defendant.

Fresno, California

)

) 1:19-cr-00275

)

) SENTENCING

)

DAD-SKO

Thursday, October 29, 2020

REPORTER'S TRANSCRIPT OF PROCEEDINGS

APPEARANCES OF COUNSEL:

For the Government:

JUSTIN GILIO

Assistant U.S. Attorney

2500 Tulare Street, Rm. 4401

Fresno, California 93721

For the Defendant:

Office of the Federal Defender

2300 Tulare Street

Suite 330

Fresno, CA 93721

BY: PEGGY SASSO

REPORTED BY:

RACHAEL LUNDY, CSR, RPR, Official Reporter

Proceedings recorded by mechanical stenography, transcript

produced by computer-aided transcription.

31a

October 2nd, the defendant's formal objections to the

presentence report, filed October 9th, the defense sentencing

memorandum, filed October 16th, the government's reply to

formal objections and sentencing memorandum, filed

October 16th.

Circuit's decision in United States vs. Walker, found at

953 F.3d 577, Ninth Circuit, 2020.

And of course, I've also reviewed the Ninth

Is there anything else I should have received in

connection with sentencing?

MS. SASSO:

Not from the defense.

MR. GILIO:

Not from the government, Your Honor.

THE COURT:

Let's take up the objections then.

Ms. Sasso, I understand the objections.

I know from

reading Walker that you handled that case.

I know that an

appeal is pending before the U.S. Supreme Court.

objections -- I think, all of the more nuanced objections were

addressed by the probation officer, noting the defense

position at various aspects of the presentence report where

there might have been disagreements.

All your

But your basic objection is based upon an argument

that Walker was wrongly decided, and your position that it

should be, and you hope that it will be, eventually

overturned.

Is that fair to say?

MS. SASSO:

Yes -- yes, Your Honor.

There's two

32a

prongs that were raised in terms of -- that are not, we don't

believe, three predicate violent felonies, proper application

of Leocal v. Ashcroft would strongly suggest that these are

not violent felonies.

Also, this Court cannot make judicial findings that

have not been established by a jury or pled beyond a

reasonable doubt.

offenses were committed on -- well, certainly, there was no

admission at any time or proved to a jury that these offenses

were committed on occasions different to one another.

There's no evidence here that these

I would note that I think on this record the Court

doesn't need to reach any of those issues, because the

government has not put forth Shepard documents that would

allow this Court to, even if it was going to engage in the

practice of judicial fact finding, to increase a mandatory

minimum or statutory maximum, which I strongly objects to and

do not believe that the Sixth Amendment or the due process

permits this Court to do that.

going to do that, the record isn't here.

But even if this Court was

All that is in this record is documents showing there

were two convictions that were secured in 2010 for events that

were alleged to have been committed within a range of four

months, on/or about.

when those offenses actually occurred.

There's no specific finding at any time

And then, with respect to the third conviction, all

33a

we have is a change of plea form with no relevant facts that

there's been -- there's -- this Court could not possibly, on

this record, even if it was going to engage in additional fact

finding, find beyond a preponderance of the evidence, let

alone beyond a reasonable doubt, that these three offenses

were committed on occasions different from one another.

So I don't think this Court even needs to get to

Walker.

But yes, we have made those objections.

THE COURT:

Anything, Mr. Gilio, the government

wishes to add in that regard?

MR. GILIO:

Your Honor, I would just point the Court

to, I believe, the document is 21-1.

That's the document that

Ms. Sasso seems to be referring to.

And in that document, it

has the advisement of rights and change of plea for all three

of these convictions.

The two in 2010, one of them was signed 1-6-2010.

The second one was 5-6-2010.

And then the third conviction,

which was five years later, was signed 1-16-2015.

included in that document for the first two convictions, the

2010 convictions, there was plenty of additional Shepard

documents that the Court can look at.

And

And the only -- I guess, I'll make two other points.

One would be that, I believe, in the -- in the PSR, there is

statements about his prior offenses, you know, in the criminal

history section.

I don't think those were objected to as far

34a

as the dates included there.

And the final point I would make, obviously my point

there is that these offenses occurred on different dates.

There's police reports that outline they occurred on different

dates.

show when the convictions actually occurred.

Now you have these additional Shepard documents that

And the final point I would make -- AUSA Barton has

asked me to remind the Court as well -- the defendant pled to

an indictment that listed the conviction dates, and those were

three separate conviction dates listed in the indictment.

with that, I would submit, Your Honor.

THE COURT:

Anything in reply, Ms. Sasso?

MS. SASSO:

Yes.

And

The government is attempting to

rely on non-Shepard documents that -- the PSR, police reports,

those are not Shepard documents.

The only document that the government provided with

respect to the last conviction is a change of plea form that

says absolutely nothing about whether the conviction -- when

the offense was committed.

So we have absolutely no idea based on the Shepard

documents that the Court has -- that the government has

provided to this Court.

Additionally, there was a -- Mr. Barrera did not

plead to the indictment.

He pled to a factual basis.

So he

at no time has pled to when these offenses were committed.

35a

There's absolutely no evidence that this Court has that can

establish that these offenses were committed on occasions

separate from one another.

THE COURT:

The Court is overruling all of the

defense objections, in light of the decision -- the bind

decision found, Ninth Circuit, in United States vs. Walker

found at 953 F.3d 577, decided March 20th, 2020, as well as

based upon the documents that are attached to the final

presentence report, and the entry of plea to the charge, and

the factual basis for that plea.

When considered in combination, the Court is

satisfied that as addressed in Walker, that it is apparent to

the Court by any applicable standard that the three separate

offenses -- the three separate prior offenses did occur on

different dates, separate dates.

or one of them, a lengthy period of time removed from the

others, but it clearly was three separate incidents.

think there's sufficient documentation before me to establish

that.

At least a couple of them,

And I

In all other respects, Walker has the next -- and I

took it the Walker opinion has rejected the defense arguments

here.

choice but to reject them as well.

overruled.

And based upon that binding authority, I feel I have no

MS. SASSO:

So all objections are

For the record, Your Honor, could you

36a

establish/set forth what documents you're relying on to

establish that he has committed offenses on three separate

occasions?

THE COURT:

The ones attached to the final

presentence report, that's what I said, as well as the entry

of plea.

I think Mr. Gilio referred to docket number 21.

was the draft presentence report.

presentence report, the docket number 22.

That

I'm referring to the final

MS. SASSO:

Thank you, Your Honor.

THE COURT:

There being no other objections to the

presentence report in this case, I find -- well, stop.

me.

Before I go any further.

Excuse

Ms. Sasso, have you had the

opportunity to review the presentence report and discuss it

with Mr. Barrera in detail?

MS. SASSO:

I have, Your Honor.

THE COURT:

And, Mr. Barrera, have you reviewed the

presentence report in your case and discussed it with your

attorney in detail?

THE DEFENDANT:

THE COURT:

Yes, sir.

There being no other formal objections to

the presentence report, I adopt the findings of that report,

find them to be true and correct.

applicable offense level is 30.

I, therefore, find the

37a

Mr. Barrera's criminal history places him in category

Roman Numeral IV.

result in an advisory sentencing guideline range calling for a

term of imprisonment of between 135 and 168 months.

in light of the mandatory minimum sentence here, the guideline

range becomes the mandatory minimum sentence of 180 months.

That guideline calculation would normally

However,

The sentencing guidelines are only the beginning

point in the sentencing process.

The Court is ultimately to

impose a sentence that's reasonable as described by the

Supreme Court in its decisions in Booker and FanFan.

Therefore, I will give due weight to the statutory factors at

18 U.S.C. Section 3553(a).

However, Congress has essentially stripped the Court

of its ability to take into account those factors by imposing

this mandatory minimum sentence.

do not think a 180 month's sentence in this case is

reasonable.

been mandated by Congress to impose it.

I think it's anything but reasonable.

should not now be pronounced?

MS. SASSO:

But I've

Is there any legal cause why judgment and sentence

As I'll state again later, I

Your Honor, I think Mr. Barrera would

like to allocute, and I -- I just would like to echo the -THE COURT:

I'm sorry.

Ms. Sasso, you just broke up.

I will get to Mr. Barrera last -- or Mr. Barrera last.

MS. SASSO:

Okay.

38a

THE COURT:

If you can go back and repeat.

I don't

think either myself or the court reporter got your entire

sentence there.

MS. SASSO:

Okay.

I just wanted to say that I agree that, really, the

sentence of 15 years in this case is really pretty obscene.

It's not what Congress intended.

penological objectives of 3553(a).

whatsoever.

It doesn't satisfy the

It makes no policy sense

We're dealing with someone here who has a serious

drug addiction, who was in a dysfunctional relationship with

another person when they were in their mid and early 20s.

Their relationship stabilized.

time, they were both using drugs.

clean.

are the parents of three young children, children whose

prospect for future success and stability is markedly reduced

with the removal of their father from their lives.

They were both -- at that

They became sober and

The relationship stabilized over five years ago.

Mr. Barrera is someone who actually figured out how

to get his G.E.D. in Fresno County Jail.

very few federal inmates accomplish.

go to college.

ahead of him.

They

That's a feat that

He is ready and eager to

And he would otherwise have a bright future

He has strong community support.

He needs a

comprehensive drug treatment program, not 15 years in custody.

39a

That's a sentence that would likely destroy his life

and possibly those of his children as well.

repeats.

intended.

And the cycle

It makes no sense, and it's not what Congress

This guideline, I think, under 3553(a), a guideline

sentence -- well, if I would calculate the guidelines, it

would be 21 months, and I think that represents a sentence

under 3553(a) which is sufficient, but not greater than

necessary, to accomplish the penological goals of sentencing.

THE COURT:

Submitted?

MS. SASSO:

Yes, Your Honor.

THE COURT:

Mr. Gilio, anything the government wishes

to add with respect to sentencing?

MR. GILIO:

Honor.

Submitted, Your Honor.

Submitted, Your

Thank you.

THE COURT:

turn to Mr. Barrera.

seriousness of his prior offenses.

He's obviously got serious, serious anger management control

issues.

domestic violence is nothing to be taken lightly.

very serious conduct.

I want to make one thing clear before I

I do not mean to diminish the

They are very serious.

Engaging in multiple prior offenses involving

It's very,

The current offense, being a convicted felon in

possession of a firearm, also very serious conduct.

Not at

all suggesting that those offenses are not serious ones.

I'm

40a

only indicating that, in my view, were I not bound by the

sentence guideline, and I, in some respects, I really have no

idea what Congress did or did not intend.

they did.

if I really -- if I wasn't bound, there's zero possibility,

zero, that I would impose a 180-month sentence in this case.

It's, in my view, absurd; clearly not called for.

I only know what

But this is an example of a case, in my view, that

That doesn't mean a significant prison sentence isn't

called for, and I'd probably no doubt impose one.

wouldn't be anything close to 180 months.

But it

There's underlying issues here that should be

addressed, and punishment is certainly necessary.

It's just,

this sentence makes no sense, in my view, and is not

proportional, is clearly unduly harsh, and yet, I have no

choice in the matter.

Mr. Barrera, is there -- Mr. Barrera, is there

anything you wish to say to me before I impose sentence in

your case?

THE DEFENDANT:

Yeah.

For first and foremost, I

would like to say thank you for stating what you just stated.

And I completely agree with what you just said.

I want to thank you for taking the time to address my

letter.

I won't say that the charge in question should be

overlooked, only that you see it at face value, that I'm not a

career criminal.

This is my first and last possession case

41a

that I will receive, given the chance.

I made a mistake that

I feel has taken away my life, the relationship with my

children, the presence of my mother.

every case in my past has, and always will be, drugs.

Although drugs have not been in any of my cases, I've been

more than familiar with them for more than half of my

32 years.

some worse than others, but I also know that I do not belong

in the wide net of what is considered the Career Criminal Act

for my first and only felony possession.

My biggest downfall in

I know that I've made mistakes in the past, and

What I need is rehab to teach me my coping strategies

that I failed to learn when I was 13 years old.

enrolled in a substance abuse class, and pinpointed my

triggers.

after my triggers feel overwhelming.

value, and you'll be able to see 15 years to life is too steep

a sentence.

thank you again.

I, myself,

I just need to further my knowledge on how to cope

Just look at it at face

Just see it in your heart, and I just want to say

THE COURT:

Pursuant to the -- thank you,

Mr. Barrera.

make some use of the time, because there are serious issues

that you've got to deal with.

You know, I hope that you can find some way to

THE DEFENDANT:

I best believe that I realize what

they are, and I know what I will do while I'm in prison.

just -- I just feel this sentence is too steep.

Not saying

42a

that I deserve to be let go.

some type of punishment is imposed and should be imposed.

do not -- I do not reject any of that.

So I -- I'm free to do the time that I need to do.

don't feel that 15 years is the time that should be given.

THE COURT:

I understand that a sentence or

I know I messed up.

I just

Pursuant to the Sentencing Reform Act of

1984, it's the judgment of the Court that the defendant

Edgar Barrera is hereby committed to the custody of the Bureau

of Prisons to be imprisoned for a term, which the Court is

imposing reluctantly, but out of mandatory sentencing imposed

upon the Court by Congress, a term of imprisonment is imposed

of 180 months.

The defendant shall pay a special assessment of $100,

payment to begin immediately.

The Court finds the defendant

does not have the ability to pay a fine; imposition of a fine

is therefore waived.

If a preliminary order of forfeiture has been filed,

which I do not have in front of me, so it may not have been as

to this defendant, it shall be incorporated in the judgment.

Upon release from imprisonment, the defendant shall

be placed on supervised release for a term of 60 months.

Within 72 hours of release from the custody of the

Bureau of Prisons, the defendant shall report in person to the

probation office in the district to which he is released.

While on supervised release, the defendant shall not

43a

APPENDIX G

APPENDIX

Document 22-1 Filed 10/02/20

Case 1:19-cr-00275-NONE-SKO

1:19-cr-00275-NONE-SKO Document

10/02/20 Page

Page 24

24 of

of 25

FOR COURT USE ONLY

SUPERIOR COURT OF CALIFORNIA • COUNTY OF

1100 Van Ness Avenue

B ij n ns

p-1 U B= IS H //

FRESNO

Fresno, California 93724-0002

t :•

JAH 1 g

PEOPLE OF THE STATE OF CALIFORNIA

JrSW COUNTY SUPESiO?? COURT

VS.

DSTJ77

DEFENDANT:

FELONY ADVISEMENT, WAIVER OF RIGHTS, AND PLEA

CASE NUMBER:

FORM

l understand the nature of the charges against me. I request

to withdraw my plea of not guilty and now plead

Ep(NO CONTEST to the following violation(s) of law (list coun^gqd^-seqti

GUILTY

ons, priors^ anc( an^ conditions of the plea):

RIGHT TO AN ATTORNEY:

A-

•

I understand I have the right to be represented by an attorney at all

to afford an attorney, the court will appoint one for me.

possible defenses with my attorney

stages of the proceedings, 'and if I am unable

I have had enough time to discuss my case and ail

CONSTITUTIONAL RIGHTS:

I understand I am presumed innocent and the State

is required to prove me guilty

beyond a reasonable doubt. I also understand that I have

the following constitutional

1 understand

The right to a speedy, public JURY or COURT TRIAL,

The right to be CONFRONTED by WITNESSES against

me; that is, to see, hear and

I give up

this right

rights as to all matters charged against me:

question all witnesses against me

The right to NOT INCRIMINATE MYSELF; that is, not to

be compelled to testify against

myself though I may testify if I choose to do so

The right to PRESENT EVIDENCE at no cost to me

and to have the court issue

subpenas to bring into court all witnesses and evidence favorabl

e to me

CONSEQUENCES OF PLEA OF GUILTY OR NO CONTES

I understand:

if I am presently on parole, postrelease community supervis

ion, mandatory supervised release, or probation, my

change of plea could be a reason for finding me in violation

of my parole, postrelease community supervision,

mandatory supervised release, or probation.

If I am not a citizen,

my change of plea can result in my deportation, exclusio

n from admission to

States, and/or a denial of naturalization. Deportation may

be mandatory for this offense.

I have fully discussed this matter with my attorney and

and understand the serious immigration

consequences of my

plea.

The maximum sentence I can receive as a result of my plea

years '

the United

includes:

months in state prison. I could be placed on parole at the conclusion

for a maximum period of

, with 1 year return to prison for every parole violation.

be released from prison at the conclusion of said term on a term

for a maximum period of 3 years, with up to 1 80 days in

of said term

I could also

of postrelease community supervision

custody of the County Jail as the reult of

each violation of postrelease community supervision. If I should

receive probation, it could be for up to 5 years

and could include up to 1 year in custody. I understand that

if I violate any terms or conditions of probation

I can be sent to state prison for the maximum term .

FCR-54 R09-1 1

mandatory

FELONY ADVISEMENT, WAIVER OF RIGHTS

, AND PLEA FORM

Page 1

PSR-51

44a

Case 1:19-cr-00275-NONE-SKO

1:19-cr-00275-NONE-SKO Document

Document 22-1

22-1 • . Filed

Filed 10/02/20

10/02/20 Page

Page 25

25 of

of 25

I can also be fined up to $1 0,000 and ordered to pay restitution in the minimum amount of $200, and up

to $10,000.

If I am addicted to or in danger of becoming addicted to dangerous drugs, I can be sent to the California

Rehabilitation Center

4. Other possible consequences of this plea may include (e.g. registration):

Y>V

I understand that I will be required to provide buccal swab samples and any blood specimens or other

biological

samples for law enforcement identification analysis

6. The matter of probation and sentence is to be determined solely by the court

7. I am entering into my plea freely and voluntarily, without fear or threat to me or anyone closely related

8. The facts on which I base my plea are:

to me

UJ<?j4

I declare under PENALTY OF PERJURY, under the laws of the State of California, that I have read, understood,

each item above, and everything on this form is true and correct.

Date:

/(J&

Signed:

I ——

WAIVER OF JUDGE

and initialed

- (/

(Defendant)

I understand that I have the right to enter my plea before and be sentenced by a judge. I give up this

right and agree to enter

my plea and be sentenced by a temporary judge.

Date:

Signed:

(Defendant)

ATTORNEY’S STATEMENT

I am the attorney of record for the defendant and have reviewed this form with my client. I have explained

to the defendant

each of his/her rights and answered all of the defendant’s questions with regard to this plea. I have

discussed the facts of the

case with the defendant, and explained the consequences of this plea, the elements of the offense(s),

and the possible

defense(s). I concur with this plea and the defendant’s decision to waive his/her constitutional rights?

Date:

\ - |L "

initialed the form.

Signed:

"s.

' '(jittorney'fidr Defendant)

INTERPRETER’S STATEMENT (IF APPLICABLE)

, have been duly sworn and have truly translated this form to the defendant in the

language. The defendant indicated that (s)he understood the contents of the form, and (s)he has

Date;

Signed:

(Court Interpreter)

COURT’S FINDINGS AND ORDER

The Court, having reviewed this form and having questioned the defendant concerning the defendant’s

accepts the defendant’s piea(s) and the factual basis for the plea(s), and finds that the defendant

constitutional rights,

has expressly, knowingly,

understandingly, and intelligently waived his/her constitutional rights. The Court finds that the defendant's

plea(s) is freely and

voluntarily made with an understanding of the nature and consequences of the plea(s). The defendant

is convicted on the

basis of his/her plea(s).

The Court orders this form filed and entered in this case.

Date:

Signed:

(Judr/elof SuperloF'CeurQ.^

FCR-54 R09-1 1 mandatory

FELONY ADVISEMENT, WAIVER OF RIGHTS, AND PLEA FORM

Page 2 of 2

PSR-52

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45a

APPENDIX H

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

No. 18-10211

D.C. No.

1:16-cr-00088-LJOSKO-1

STEVEN GERARD WALKER,

Defendant-Appellant.

OPINION

Appeal from the United States District Court

for the Eastern District of California

Lawrence J. O’Neill, District Judge, Presiding

Argued and Submitted October 24, 2019

San Francisco, California

Filed March 20, 2020

Before: Michael J. Melloy,* Jay S. Bybee, and N. Randy

Smith, Circuit Judges.

Opinion by Judge Bybee

The Honorable Michael J. Melloy, United States Circuit Judge for

the U.S. Court of Appeals for the Eighth Circuit, sitting by designation.

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UNITED STATES V. WALKER

SUMMARY**

Criminal Law

The panel affirmed a criminal judgment in a case in which

the defendant, who pleaded guilty to being a felon in

possession of a firearm, challenged the application of a

fifteen-year-minimum sentencing enhancement under the

Armed Career Criminal Act (ACCA) based on his 1998,

1999, and 2014 domestic-violence convictions under

California Penal Code § 273.5.

The defendant argued that his § 273.5 convictions do not

qualify as categorical violent felonies under the ACCA. The

panel held that this contention is foreclosed by United States

v. Laurico-Yeno, 590 F.3d 818 (9th Cir. 2010); BanuelosAyon v. Holder, 611 F.3d 1080 (9th Cir. 2010); and United

States v. Ayala-Nicanor, 659 F.3d 744 (9th Cir. 2011).

Because no Supreme Court or en-banc opinion from this

court has obviously limited or otherwise abrogated those

decisions, and because the defendant did not show that

California law regarding § 273.5 has changed, the panel

reaffirmed Laurico-Yeno and its progeny.

The defendant also argued that the Sixth Amendment

requires a jury, not a sentencing judge, to find that a

defendant’s prior convictions were for crimes on different

occasions, and that the district court therefore transgressed

the Sixth Amendment by deciding that the defendant had

committed three separate felonies. The panel held that this

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

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

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UNITED STATES V. WALKER

argument is foreclosed by United States v. Grisel, 488 F.3d

844 (9th Cir. 2007) (en banc), which held that a sentencing

judge may find the dates of prior offenses in deciding if a

defendant has committed three or more violent felonies. The

panel explained that because Mathis v. United States, 136

S. Ct. 2243 (2016), only proscribed judges from determining

whether a given factual scenario substantively qualifies as a

predicate offense, Grisel is not clearly irreconcilable with

Mathis’s reasoning or theory.

COUNSEL

Peggy Sasso (argued), Assistant Federal Defender; Heather

E. Williams, Federal Defender; Office of the Federal Public

Defender, Fresno, California; for Defendant-Appellant.

Ross Pearson (argued), Assistant United States Attorney,

Camil A. Skipper, Appellate Chief; McGregor W. Scott,

United States Attorney; United States Attorney’s Office,

Fresno, California; for Plaintiff-Appellee.

OPINION

BYBEE, Circuit Judge:

Defendant Steven Walker challenges the application of a

fifteen-year-minimum sentencing enhancement under the

Armed Career Criminal Act (ACCA) to his sentence for

being a felon in possession of a firearm. He makes two

arguments. First, he says that his predicate domestic-violence

convictions do not qualify as categorical violent felonies

under the ACCA. Second, he claims that the district court

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UNITED STATES V. WALKER

transgressed the Sixth Amendment by deciding that Walker

had committed three separate felonies. Walker’s assertions,

however, are foreclosed by precedent. As such, we affirm.

I. FACTS AND PROCEDURAL BACKGROUND

Walker was found in possession of a firearm. He had

three prior felony convictions for “willfully inflict[ing]

corporal injury” on a spouse or cohabitant in violation of

California Penal Code § 273.5. His three prior convictions

occurred in 1998, 1999, and 2014.

Walker pleaded guilty to being a felon in possession of a

firearm. But he did not admit to having been convicted of

three separate incidents violating § 273.5. The United States

presented certified copies of the prior judgments. The district

court determined that Walker had been previously convicted

of three separate violent felonies, requiring that he be

sentenced to a mandatory-minimum fifteen-year sentence

under the ACCA. See 18 U.S.C. § 924(e)(1). He appeals this

sentence.1

II. DISCUSSION

Walker raises two issues concerning his sentence. First,

he claims that his three prior convictions under California

Penal Code § 273.5 do not qualify as a “violent felony” under

the ACCA, 18 U.S.C. § 924(e)(2)(B)(i). Second, he argues

We review de novo a district court’s determination that a prior

conviction qualifies as a “violent felony” under the ACCA. United States

v. Walton, 881 F.3d 768, 770–71 (9th Cir. 2018). Constitutional questions

are also reviewed de novo. United States v. Holden, 908 F.3d 395, 399

(9th Cir. 2018).

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UNITED STATES V. WALKER

that it was error under Apprendi v. New Jersey, 530 U.S. 466

(2000), for the district court to have determined that his prior

convictions were separate incidents, and that such

determination had to be made by a jury. We will consider

each in turn.

A. Convictions Under § 273.5 Constitute a Categorical

“Violent Felony”

The ACCA makes it “unlawful for any person . . . who

has been convicted in any court of, a crime punishable by

imprisonment for a term exceeding one year . . . [to] possess

in or affecting commerce, any firearm . . . .” 18 U.S.C.

§ 922(g)(1). Any person who violates § 922(g)(1) “and has

three previous convictions . . . for a violent felony” shall be

imprisoned for a minimum of fifteen years. Id. § 924(e)(1).

A prior conviction may qualify as a “violent felony” only if

it “has as an element the use, attempted use, or threatened use

of physical force against the person of another.” 18 U.S.C.

§ 924(e)(2)(B)(i). Walker contends that his convictions under

§ 273.5 cannot qualify because intent to harm the victim is

not an element of that crime.2 Specifically, he points to

several California cases speaking to how convictions may be

obtained under various assault-and-battery statutes without

showing an intent to harm the victim.

Walker’s argument, however, collides headlong with our

precedents. In United States v. Laurico-Yeno, we determined

that § 273.5 was a “crime of violence” for the purposes of

U.S. Sentencing Guideline § 2L1.2(b)(1)(A). 590 F.3d 818,

Section 273.5 provides in relevant part: “Any person who willfully

inflicts corporal injury resulting in a traumatic condition upon a victim . . .

is guilty of a felony.” Cal. Penal Code § 273.5(a).

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UNITED STATES V. WALKER

821–23 (9th Cir. 2010). That provision increases a

sentence if the defendant committed three or more

“crimes of violence.” U.S. Sentencing Guidelines Manual

§ 2L1.2(b)(3)(E) (U.S. Sentencing Comm’n 2018). “Crime

of violence” in the Sentencing Guidelines is defined

identically to the phrase “violent felony” in the ACCA:

“[a]ny other offense under federal, state, or local law that has

as an element the use, attempted use, or threatened use of

physical force against the person of another.” Id. § 2L1.2

cmt. n.2. We therefore emphasized in Laurico-Yeno how

§ 273.5 punishes a “person who willfully inflicts” injury upon

a cohabitant “where willfully is a synonym for intentionally.”

590 F.3d at 821.

In Banuelos-Ayon v. Holder, we held that § 273.5 “is a

categorical crime of violence” for the purposes of 18 U.S.C.

§ 16(a), which has language identical to § 924(e)(1) and

U.S.S.G. § 2L1.2 Application Note 2. 611 F.3d 1080, 1086

(9th Cir. 2010). We specifically noted that under § 273.5 a

defendant must “willfully inflict[] . . . a direct application of

force on the victim.” Id. at 1084 (emphasis in original)

(quoting People v. Jackson, 91 Cal. Rptr. 2d 805, 810 (Cal.

Ct. App. 2000)).

We reaffirmed both Laurico-Yeno and Banuelos-Ayon in

United States v. Ayala-Nicanor, 659 F.3d 744, 753 (9th Cir.

2011). Ayala argued that Johnson v. United States, 559 U.S.

133 (2010), undermined Laurico-Yeno because even a “slight

touching” might constitute domestic violence under § 273.5.

Ayala-Nicanor, 659 F.3d at 749–50. We were not persuaded

by the argument that several California Court of Appeal

decisions showed minor touching could violate § 273.5. Id.

at 750. We explained that Laurico-Yeno had determined that

minimal touching could not give rise to a conviction under

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UNITED STATES V. WALKER

§ 273.5. Id. at 749–50. We concluded that “nothing in

Johnson undermines the validity of Laurico-Yeno, a

conclusion we already reached in Banuelos-Ayon, and that we

reaffirm today.” Id. at 752.

We find no grounds to depart from our prior reading of

§ 273.5 here.3 As a three-judge panel, “[w]e will not overrule

the decision of a prior panel of our court absent an en banc

proceeding, or a demonstrable change in the underlying law.”

Kohler v. Presidio Int’l, Inc., 782 F.3d 1064, 1070 (9th Cir.

2015). A panel may find controlling circuit precedent

overruled when “the reasoning or theory of our prior circuit

authority is clearly irreconcilable with the reasoning or

theory of intervening higher authority.” Miller v. Gammie,

335 F.3d 889, 893 (9th Cir. 2003) (en banc) (emphasis

added).

Generic assertions that our precedents are

inconsistent with higher authority will not do: “It 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.” Lair v. Bullock, 697 F.3d 1200, 1207 (9th

Cir. 2012) (citations omitted). Instead, “[t]he intervening

higher precedent must be ‘clearly inconsistent’ with the prior

circuit precedent.” Id.

No Supreme Court or en-banc opinion from our court has

obviously limited or otherwise abrogated our decisions in

Walker also asserts that interpretations of California’s general

assault-and-battery statutes are applicable here because § 273.5 is just

another battery statute and simple battery could include non-violent

touching. We considered and rejected this argument in Laurico-Yeno.

590 F.3d at 822. In that case we found this argument lacking and

concluded that § 273.5 penalizes domestic violence with “intentional use

of force that results in a traumatic condition.” Id.

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UNITED STATES V. WALKER

Laurico-Yeno, Ayala-Nicanor, or Banuelos-Ayon. Nor has

Walker shown that California law regarding § 273.5 has

changed. We therefore reaffirm Laurico-Yeno and its

progeny.

B. A Sentencing Judge May Determine the Number of Prior

Convictions

We turn next to Walker’s contention that the Sixth

Amendment forbids a sentencing judge from determining

whether prior convictions occurred on separate occasions.

For Walker to receive the fifteen-year mandatory minimum

under the ACCA, he must have had “three previous [violent

felony] convictions . . . committed on occasions different

from one another.” 18 U.S.C. § 924(e)(1). Walker asserts

that the Sixth Amendment requires a jury, not a sentencing

judge, to find that a defendant’s prior convictions were for

crimes committed on different occasions. But, once again,

Walker’s argument is foreclosed by circuit precedent.

Under Apprendi, facts that increase the penalty of a

conviction must be found by the jury beyond a reasonable

doubt. 530 U.S. at 490. However, a sentencing judge may

find “the fact of a prior conviction” and enhance the sentence

accordingly. Id. The specific issue here is whether a judge

can find that each conviction was a “separate” incident for the

purposes of applying the ACCA.

We previously held that a sentencing judge may find the

dates of prior offenses in deciding if a defendant has

committed three or more violent felonies. See United States

v. Grisel, 488 F.3d 844, 845–47 (9th Cir. 2007) (en banc),

abrogated-in-part on other grounds by United States v. Stitt,

139 S. Ct. 399 (2018). Grisel rejected the argument that the

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UNITED STATES V. WALKER

sentencing judge’s finding the dates of a given offense fell

“outside [Apprendi’s] prior-conviction exception.” Id. at 846.

We explained that “the date of the offense” is a fact

determinable on “the face of the document demonstrating

Defendant’s prior conviction.” Id. at 847. Hence, the date of

the offense is intimately connected with the fact of a prior

conviction. Id. As we noted in Grisel, our decision accorded

with the decisions of no fewer than six circuits. See id. n.1;

see, e.g., United States v. Burgin, 388 F.3d 177, 186 (6th Cir.

2004) (“[T]he ‘different occasions’ requirement of § 924(e)

cannot be significantly distinguished from ‘the fact of a prior

conviction.’”). And, since Grisel, at least one other circuit

has found no Sixth Amendment problem with a sentencing

judge determining whether a defendant’s prior convictions

were for crimes committed on separate occasions. See, e.g.,

United States v. Blair, 734 F.3d 218, 228 (3d Cir. 2013)

(rejecting the argument that a jury must find the dates of prior

convictions and collecting cases explaining the same).

To get around Grisel, Walker claims that the case has

been implicitly overruled by Mathis v. United States, 136 S.

Ct. 2243, 2253 (2016). Specifically, he points to discussions

in Mathis explaining that a “non-elemental fact” cannot be

used to enhance sentences under the ACCA. Thus, he asserts

that because the dates of his prior convictions are nonelemental facts, they cannot be considered by the sentencing

judge for the purposes of applying the ACCA.

Context, however, shows that Mathis is not so

encompassing as to abrogate Grisel. The only issue in Mathis

was whether judges could determine if a crime was an ACCA

predicate for statutes “enumerat[ing] various factual means of

committing a single element” of a given crime—i.e., whether

the categorical approach could apply to these types of

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UNITED STATES V. WALKER

statutes. Mathis, 136 S. Ct. at 2249. The Supreme Court’s

concern was that judges would necessarily consider the facts

underlying the offense—an approach antithetical to ACCA

jurisprudence. Id. at 2251. In line with the Court’s prior

holdings, Mathis concluded that “a sentencing judge may

look only to ‘the elements of the [offense], not to the facts of

[the] defendant’s conduct’” in determining whether the statelaw conviction was an ACCA predicate. Id. (alterations in

original). Mathis, therefore, only proscribed judges from

determining whether a given factual scenario substantively

qualifies as a predicate offense. See id. at 2252 (“[A] judge

cannot go beyond identifying the crime of conviction to

explore the manner in which the defendant committed that

offense.”). Mathis did not speak to courts looking at dates of

conviction.

With no on-point discussion in Mathis regarding how

judges determine the number of prior offenses, Walker fails

to show that Grisel “is clearly irreconcilable with [Mathis’s]

reasoning or theory.” Miller, 335 F.3d at 893. To the extent

that Mathis expresses broader disfavor of factual

determinations by sentencing judges, it is not clear whether

and how this disfavor extends beyond determining that a

given state-law crime is an ACCA predicate. See United

States v. Dunn, 728 F.3d 1151, 1156 (9th Cir. 2013)

(“Although the circuit opinion need not be expressly

overruled by the Supreme Court, both the circuit and

Supreme Court cases must be ‘closely on point.’” (quoting

Miller, 335 F.3d at 899)). Pointing to “‘some tension’

between [stray statements in Mathis] and prior circuit

precedent” is not enough for the panel to consider

Grisel overruled. Lair, 697 F.3d at 1207. In finding that

Walker had been convicted of three or more violent felonies,

the sentencing judge needed to look no further than the face

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UNITED STATES V. WALKER

of the certified judgments to determine these convictions

were for distinct acts. See United States v. Harris, 447 F.3d

1300, 1304 (10th Cir. 2006) (“The time, place, and substance

of the prior convictions can ordinarily be ascertained from

court records associated with those convictions, and the

Supreme Court has held that the Constitution allows

sentencing courts to rely on such records to make findings

about prior convictions.”); accord United States v. Thompson,

421 F.3d 278, 282–83 (4th Cir. 2005) (explaining that the

“date, statutory violation, and the like” are “as much a part of

the conviction as the fact that twelve jurors agreed about the

defendant’s guilt”); United States v. Santiago, 268 F.3d 151,

156 (2d Cir. 2001) (Sotomayor, J.) (“[W]e read Apprendi as

leaving to the judge, consistent with due process, the task of

finding not only the mere fact of previous convictions but

other related issues as well.”). Thus, per Grisel, the district

court did not err in making a finding that Walker committed

three separate offenses.

III. CONCLUSION

Despite his best efforts, Walker has failed to demonstrate

that our prior decisions are obviously inconsistent with

intervening Supreme Court opinions. We therefore cannot

and will not declare our prior precedents causa non grata.

The judgment is

AFFIRMED.

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