Not
a big week for decisions in the 6th Cir.
But
here’s a little career-offender discussion. . . .
United States v. Apodaca, Nos. 11—4342 & 11—4378 (6th Cir. Jan. 23,
2013) (unpublished).
The
first defendant challenged the district court’s finding that he was a career
offender. He argued that his California
conviction for assault with a deadly weapon other than a firearm was not a
felony.
The
sole question on appeal for this defendant was whether the California
conviction for assault with a deadly weapon other than a firearm was a prior
felony conviction for career-offender purposes.
The
Court of Appeals concluded it was such a conviction.
The
California conviction fell under California Penal Code section 245(a)(1): “[a]ny
person who commits an assault upon the person of another with a deadly weapon
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.”
When
a sentencing court sentences a defendant in accordance with the last option,
the offense is treated as a misdemeanor under California law. Such convictions are termed “wobbler” offenses
because sentencing judges have the option of making the offense a felony or a
misdemeanor, depending on the sentence imposed.
The
defendant argued that his conviction was only a misdemeanor because the court
chose to impose a sentence of 365 days in county jail, which made the
conviction a misdemeanor “for all purposes.”
But the Court of Appeals found otherwise.
Under
the Guidelines, a “prior felony conviction” is a prior adult conviction for an
offense punishable by a term greater than one year, regardless of
whether the offense is specifically designated as a
felony and regardless of the actual
sentence imposed. The Court of Appeals
looked to guideline section 4B1.2’s application note 1. So the designation of
the offense under California
law and the actual sentence imposed were irrelevant. The sole question was
whether the California offense was punishable by a term exceeding one year.
The
defendant tried arguing that the California statute effectively encompassed two
offenses: one that was punishable by a longer term in state prison and one punishable
by county jail for a term “not exceeding one year.” But the Court of Appeals found that the
statute encompassed a single offense: “assault with a deadly weapon . . . other
than a firearm.” And that single offense “shall be punished by imprisonment . .
. for two, three or four years or in a county jail for not exceeding one year.”
The statute provided for multiple punishment options—not multiple offense
options. The single offense was punishable by a term exceeding one year, so it
counts for career-offender purposes.
Even
if the Court were to look more closely at the intent of California law, the
prior offense would not be considered a misdemeanor. The Court found that the
defendant was not sentenced to a misdemeanor sentence; he was sentenced to 365
days in county jail, suspended, credit for 144 days, and five years of
probation. Under California law, when a court suspends a sentence and orders
probation, there is a conviction, but no judgment has been rendered. The
offense here would be regarded as a felony until judgment is
entered.
The
defendant did not argue that a judgment was actually rendered, so the prior
conviction would not be considered a misdemeanor even in California. The
district court did not err in finding that the defendant was a career offender.
For
the second defendant, the issue was one of Shepard
sources and the categorical approach. The government acknowledged that the
sources it produced regarding the prior drug offense were not Shepard sources, but it argued that it did not have to
provide Shepard
documents because the defendant did not
challenge the fact of the prior conviction and the statutory definition was adequate
to determine the nature of the offense.
This
prior conviction was for a violation of a statute that provided that “every
person who possesses for sale any marijuana, except as otherwise provided by
law, shall be punished” in a “county jail for 16 months, or two or three years,”
under the California Health and Safety Code sections 11359 and 1170(h).
There
was no other way to violate the statute. A conviction under that provision is a
controlled-substance offense under section 4B1.1, as it is an offense
“punishable by imprisonment for a term exceeding one year” that prohibits “the
possession of a controlled substance . . . with intent to manufacture, import,
export, distribute, or dispense.” Such a conviction for possession of marijuana
for sale fits this definition.
The
defendant did not challenge the fact of the offense or the specific convicting
statute. He argued only that the government did not prove its case. The
government presented a case summary from California, case “minutes” from
California, a criminal history report from Los Angeles County, and an
indictment to prove the nature of the prior conviction. These were the only
documents regarding the offense and they showed that the defendant was charged
with and pleaded nolo contendre to a violation of California HSC 11359. The Court of Appeals
concluded that the district court did not err in relying on these documents to
show the fact of the prior conviction.
As
to the last challenge that the district court did not understand its sentencing
discretion, the defendant waived his appellate rights.