U.S. v. Johnson

920 F.3d 628

UNITED STATES of America, Plaintiff-Appellee,

v.Christopher JOHNSON, Defendant-Appellant.

No. 18-10016

United States Court of Appeals, Ninth Circuit.

Argued and Submitted December 21, 2018 San Francisco, California

Filed April 9, 2019

Amy B. Cleary (argued) and Cullen O. Macbeth, Assistant Federal Public Defenders; Rene L. Valladares, Federal Public Defender; Office of the Federal Public Defender, Las Vegas, Nevada; for Defendant-Appellant.

Elizabeth O. White (argued), Appellate Chief; Dayle Elieson, United States Attorney; United States Attorney’s Office, Reno, Nevada; for Plaintiff-Appellee.

Before: Milan D. Smith, Jr., Jacqueline H. Nguyen, and Mark J. Bennett, Circuit Judges.

BENNETT, Circuit Judge:

Christopher Johnson pleaded guilty to one count of being a felon in possession of a firearm. The district court assigned Johnson a base offense level of 20 based on a determination that Johnson had previously been convicted of a "crime of violence" as that term is used in § 2K2.1(a)(4)(A) of the U.S. Sentencing Guidelines Manual ("USSG" or the "Guidelines"), and sentenced Johnson to 30 months’ imprisonment.

On appeal, Johnson argues that the district court erred by applying a crime-of-violence enhancement to his offense level. We first consider whether Johnson’s concessions in the district court foreclose his newly minted argument that his underlying conviction for violation of California Penal Code ("CPC") § 245(a)(1) was not actually a felony under California law. Reviewing de novo, we also examine Johnson’s CPC § 245(a)(1) conviction to determine whether it truly was for a felony, and if so, whether, in light of Moncrieffe v. Holder , 569 U.S. 184, 133 S.Ct. 1678, 185 L.Ed.2d 727 (2013), a felony conviction for violating CPC § 245(a)(1) can be a predicate offense for a crime-of-violence enhancement. Because the answer to all three questions is yes, we affirm Johnson’s sentence.

I.

A grand jury in the District of Nevada indicted Johnson for possession of a firearm after having been convicted of a felony, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Johnson pleaded guilty without a plea agreement.

The U.S. Probation Office assigned Johnson a base offense level of 20 pursuant to USSG § 2K2.1(a)(4)(A), because of Johnson’s prior conviction for a felony crime of violence. The predicate crime was Johnson’s 2014 California conviction for assault with a deadly weapon (not a firearm), in violation of CPC § 245(a)(1), for which Johnson served six months in county jail. Probation reduced the offense level by three for acceptance of responsibility, resulting in a total offense level of seventeen. Johnson’s advisory Guidelines range was thirty-to-thirty-seven months.

Johnson objected to Probation’s classification of his assault-with-a-deadly-weapon conviction as a crime of violence on the basis that the state offense lacked the mens rea to qualify as a crime of violence under the categorical approach. Johnson did not, however, object to Probation’s classification of his CPC § 245(a)(1) conviction as a felony, or otherwise assert that the conviction was not for an offense punishable by more than one year in prison. Rather, he conceded in his sentencing memorandum that "[h]e has two prior felony convictions .... [He] received his second felony conviction for Assault with a Deadly Weapon-Not a Firearm, for which he received a suspended six-month jail sentence and three years of probation." The district judge asked whether Johnson or his attorney found any "errors or discrepancies" in the presentence investigation report ("PSR"); both answered that they had not.

The district court held that a conviction under CPC § 245(a)(1) is a crime of violence, and overruled Johnson’s objections to the PSR. The court sentenced Johnson to thirty months’ imprisonment, the low end of his advisory Guidelines range. Johnson timely appealed.

II.

"We review ‘de novo a district court’s determination that a prior conviction qualifies as a "crime of violence" under the Guidelines ...." United States v. Saavedra-Velazquez , 578 F.3d 1103, 1106 (9th Cir. 2009) (quoting United States v. Rodriguez-Guzman , 506 F.3d 738, 740–41 (9th Cir. 2007) ).

The parties dispute the proper standard of review for the sub-issue whether Johnson’s underlying California conviction for assault with a deadly weapon was punishable by more than one year in prison. Johnson argues that we should review this issue de novo because he has merely advanced a new argument in support of his preserved claim that the crime-of-violence enhancement was improper. The government urges us to review for plain error only because Johnson failed to make this argument in the district court and because our consideration of this argument would invite improper appellate fact-finding.

As we explain below, this dispute is immaterial to our analysis because Johnson’s argument fails under plain error and de novo review. We believe, however, that resolution of this sub-issue is actually governed by Federal Rules of Criminal Procedure Rule 32(i)(3)(A), which permits a district court to find as facts, uncontroverted factual statements in the PSR.

III.

The Guidelines assign a base offense level of twenty for the offense of unlawful firearms possession by a felon if "the defendant committed any part of the instant offense subsequent to sustaining one felony conviction of either a crime of violence or a controlled substance offense." USSG § 2K2.1(a)(4)(A). The Guidelines define "crime of violence" as

any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that—

(1) has an element the use, attempted use, or threatened use of physical force against the person of another, or

(2) is murder, voluntary manslaughter, kidnapping, aggravated assault, a forcible sex offense, robbery, arson, extortion, or the use or unlawful possession of a firearm described in 26 U.S.C. § 5845(a) or explosive material as defined in 18 U.S.C. § 841(c).

USSG § 4B1.2(a).

The two issues presented in this appeal are whether Johnson’s assault-with-a-deadly-weapon conviction was for an offense "punishable by imprisonment for a term exceeding one year," and if so, whether CPC § 245(a)(1) can ever, under the categorical approach, be a crime of violence after Moncrieffe .¹

A.

Johnson first argues that, by operation of California law, his conviction was for a misdemeanor, not a felony. Because under California law, a misdemeanor is not punishable by a prison term exceeding one year, Johnson asserts that the crime-of-violence enhancement should not apply. Ultimately, Johnson’s concessions in the district court foreclose this argument.

The relevant Commentary to the Guidelines defines "felony conviction" as "a prior adult federal or state conviction for an offense punishable by death or imprisonment for a term exceeding one year, regardless of whether such offense is specifically designated as a felony and regardless of the actual sentence imposed."² USSG § 2K2.1 cmt. n.1. The underlying statute of conviction here provides:

Any person who commits an assault upon the person of another with a deadly weapon or instrument other than a firearm shall be punished by imprisonment in the state prison for two, three, or four years, or in a county jail for not exceeding one year, or by a fine not exceeding ten thousand dollars ($ 10,000), or by both the fine and imprisonment.

CPC § 245(a)(1).

The variety of punishments that a defendant can receive for being convicted under CPC § 245(a)(1) demonstrate that the statute is a wobbler. "In the parlance of California law enforcement, a violation of the statute is a ‘wobbler’ that may be punished either as a felony or as a misdemeanor." United States v. Diaz-Argueta , 564 F.3d 1047, 1049 (9th Cir. 2009). "Under California law, a ‘wobbler’ is presumptively a felony and ‘remains a felony except when the discretion is actually exercised’ to make the crime a misdemeanor." Ewing v. California , 538 U.S. 11, 16, 123 S.Ct. 1179, 155 L.Ed.2d 108 (2003) (quoting People v. Williams , 27 Cal.2d 220, 163 P.2d 692, 696 (1945) ). "To determine whether a conviction for a wobbler is an offense punishable by a term of imprisonment exceeding one year under ... the Guidelines, the sentencing court must look to state law: Did the California court’s treatment of the offense convert it into a ‘misdemeanor for all purposes’ under [CPC] section 17(b)?" United States v. Bridgeforth , 441 F.3d 864, 872 (9th Cir. 2006).³ If not, the offense remains a felony. A conviction becomes a "misdemeanor for all purposes" when certain conditions are met, including, as relevant here: "[a]fter a judgment imposing a punishment other than imprisonment in the state prison or" "[w]hen the court grants probation to a defendant" without imposition of a sentence "and at the time of granting probation ... declares the offense to be a misdemeanor." CPC § 17(b)(1) & (3).

Johnson argues that his sentence of six months in the county jail conclusively establishes that he received a "punishment other than imprisonment in the state prison," thus converting his CPC § 245(a)(1) conviction into a "misdemeanor for all purposes" under CPC § 17(b)(1). In addition, Johnson asks us to take judicial notice of several documents related to sentencing in his underlying CPC § 245(a)(1) conviction that, in Johnson’s view, establish that his sentence converted his wobbler conviction into a misdemeanor.

We reject Johnson’s belated attempts to characterize his underlying California conviction as a misdemeanor. Pursuant to Rule 32(i)(3)(A), the district court "may accept any undisputed portion of the presentence report as a finding of fact." The PSR clearly characterized Johnson’s assault-with-a-deadly-weapon conviction as a felony. As discussed above, not only did Johnson fail to challenge that description, his counsel affirmatively represented to the court that he had two prior felony convictions, including the CPC § 245(a)(1) conviction at...