F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
June 6, 2006
UNITED STATES CO URT O F APPEALS Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
U N ITED STA TES O F A M ER ICA,
Plaintiff - Appellee,
v. No. 05-2220
R ON N IE ESPIN O SA ,
Defendant - Appellant.
A PPE AL FR OM T HE UNITED STATES DISTRICT COURT
FOR T HE D ISTRICT OF NEW M EXICO *
(D .C . NO. CR-03-2281 M CA)
John V. Butcher, Assistant Federal Public Defender, Albuquerque, New M exico,
for the Defendant - Appellant.
David C. Iglesias, United States Attorney and David N. W illiams, Assistant
United States Attorney, Albuquerque, New M exico, for the Plaintiff - Appellee.
Before TA CH A, Chief Cirucuit Judge, HA RTZ and TYM KOVICH, Circuit
Judges.
HA RTZ, Circuit Judge.
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
Ronnie Espinosa appeals from his sentence for possession of cocaine with
intent to distribute. See 21 U.S.C. § 841(a)(1). At sentencing the district court
determined that he was a career offender under United States Sentencing
Guidelines (USSG ) § 4B1.1 because he had two prior state-law convictions for
qualifying offenses at the time of the present offense. M r. Espinosa contends that
the district court erred in applying the career-offender enhancement because one
of the predicate state-law convictions did not predate his § 841(a)(1) violation.
He acknowledges that he pleaded guilty to the state charge before committing the
federal offense, but contends that his plea was conditional and therefore was not
valid and did not establish his guilt until imposition of his sentence, which
postdated the federal offense. The district court rejected the contention. W e have
jurisdiction under 18 U.S.C. § 3742(a)(2) and 28 U.S.C. § 1291. W e affirm,
holding that the district court is entitled to deference in its characterization of the
state-court proceeding and correctly ruled that M r. Espinosa’s guilty plea
constituted a conviction.
The Issues on Appeal
The sentencing range recommended by the Guidelines depends on the
defendant’s offense level and criminal history. Criminal history is determined by
the number and nature of the defendant’s prior convictions. One w ay for a
defendant to qualify for criminal-history Category VI, the highest category in the
Guidelines, is to be a “career offender.” Under U SSG § 4B1.1(a):
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A defendant is a career offender if (1) the defendant was at least
eighteen years old at the time the defendant committed the instant
offense of conviction; (2) the instant offense of conviction is a felony
that is either a crime of violence or a controlled substance offense;
and (3) the defendant has at least two prior felony convictions of
either a crime of violence or a controlled substance offense.
The Guidelines further provide that the prior felony convictions must have
occurred before the offense on which sentence is being imposed. See id.
§ 4B1.2(c) (“The term ‘two prior felony convictions’ means . . . the defendant
comm itted the instant offense of conviction subsequent to sustaining at least two
felony convictions . . . .” (emphasis added)).
M r. Espinosa’s Presentence Report (PSR) determined that he satisfied this
definition because he had two prior state-law convictions for qualifying offenses
at the time of the present offense. One of those two convictions was a New
M exico state conviction for trafficking cocaine. The date of this conviction is the
focus of this appeal.
Ordinarily, a defendant is considered to have been convicted of an offense
as of the date of his plea. See USSG § 4B1.2(c) (“The date that a defendant
sustained a conviction shall be the date that the guilt of the defendant has been
established, whether by guilty plea, trial or plea of nolo contendere.”). In this
case M r. Espinosa’s plea hearing was well before he committed his federal
offense. He contends, however, that the plea was only a conditional one, which
was invalid under New M exico law and did not “establish” his guilt until he was
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sentenced a year later, after he committed the federal crime. Thus, he concludes,
that state conviction cannot be considered in determining whether he is a career
offender. W e disagree. The federal district court ruled that his state plea was a
valid plea and his conviction occurred at the time of the plea. For reasons we
provide below, we give deference to the district court’s ruling. W e see no error in
the ruling and affirm M r. Espinosa’s sentence.
State Proceedings
M r. Espinosa appeared in New M exico state court on April 2, 2002, to
plead to a charge of cocaine trafficking. W ith him was Felicia M ontano, his
girlfriend and the mother of one of his children, who had been indicted on
narcotics charges in a related case. There was, however, no resolution of either of
their cases that day. They returned to court the next day, April 3, but the state
was ready to proceed only with M r. Espinosa’s case, not M s. M ontano’s.
M r. Espinosa’s lawyer informed the court that he would plead guilty on the
condition that the state dismiss its case against M s. M ontano:
[DEFENSE COUNSEL]: Your H onor, my client enters this
plea to guilty on Count V, trafficking
by distribution on April 27. I did
inform ... he is willing to enter this
plea conditionally on the basis that
the co-defendant would Felicia
M ontano be dismissed from the case
and assuming that ... that is not the
case he would like the option of
withdrawing his plea, Your Honor.
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THE COURT: M r. Espinosa, is this correct?
M R. ESPIN OSA: Yes, Sir.
***
THE COURT: M iss M anfredi [the prosecutor],
pertaining to the condition you are
aware of the fact that the plea entered
into by M r. Espinosa based on
condition that a ... there be a
dismissal on the case or nolle
prosequi of the case against Felicia
M ontano?
M S. M ANFREDI: Yes, yes, Judge.
THE COURT: The Court will accept the plea subject
to the contingency that has been
outlined by [defense counsel]. Let
me state for the record that [M s.
M ontano and her attorney] were here
yesterday morning and I realized that
the State has not made a decision yet
as to M s. M ontano, but [she and her
attorney] were here yesterday
morning and then at their request I
said fine show up today, so that we
could have the consolidated cases
discussed together here.
Furthermore, it is now 11 o’clock and
[M s. M ontano’s counsel and M r.
Espinosa’s counsel] have both ... and
their clients have been here since 9
o’clock this morning, so
approximately 3 hours have been
waiting and so to further prevent
delay the Court will accept the plea,
subject to the conditions [M r.
Espinosa’s counsel] has outlined. The
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Court will ask for a Presentence
Report.
COUNSELS: Thank you, Your Honor.
[DEFENSE COUNSEL]: Thanks Judge. I appreciate it.
M S. M ANFREDI: Yeah, thanks, I appreciate it.
THE COURT: And then can I ask the state for— to
give me a decision within twenty-four
(24) hours of.
M S. M ANFREDI: I will do that, Judge.
R. Vol. I, Doc. 112, at 3-5 (emphasis added). The case against Felicia M ontano
was dismissed the next day. Sentencing of M r. Espinosa, however, was delayed
more than a year, until June 23, 2003.
Federal Proceedings
In the meantime, on April 30, 2003, M r. Espinosa was arrested on the
present federal cocaine-trafficking charge. On October 4, 2004, he pleaded guilty
in the United States District Court for the District of New M exico to one charge
of possession of less than 500 grams of cocaine with the intent to distribute, in
violation of 21 U.S.C. § 841(a)(1).
At his federal sentencing hearing on April 20, 2005, M r. Espinosa objected
to the PSR ’s recommendation that he be categorized as a career offender. He
argued that he could not be so classified because his state cocaine-trafficking
conviction was not a valid predicate: in his view, he had not been convicted
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before April 30, 2003, when he committed the present violation. He had indeed
pleaded guilty to the state charge on April 3, 2002, but he argued that the plea
was invalid and his guilt had not been “established,” because his plea was subject
to a future condition (that is, that the state dismiss its case against Felicia
M ontano). New M exico law, M r. Espinosa contended, does not recognize such
“inchoate” pleas and does not allow a conviction to be conditioned on future
events. The conviction, according to M r. Espinosa, did not become final until he
was sentenced on June 23, 2003 (the first “authorized proceeding” after the
condition was satisfied, Aplt. Br. at 9)— over two months after he was arrested for
the crimes that form the basis of this case.
The district court reviewed the transcript of the state-court proceeding and
characterized what happened as the entry of a guilty plea with an option to
withdraw later:
[DISTRICT] COURT: But the transcript, does it not include
a statement by [M r. Espinosa’s]
former attorney in the State
proceeding that in the event that the
dismissal of Felicia M ontano not take
place, that he would like the option
of withdrawing his plea, not that his
plea would be withdrawn, he would
like the option? Isn’t that the way
it’s w orded here in the transcript?
[DEFENSE COUNSEL]: Yes, Your H onor. The Court is
accurately reading the transcript. . . .
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R. Vol. IV at 14. The district court therefore rejected M r. Espinosa’s argument
that the conviction did not become final on April 2, 2002, and applied the career-
offender enhancement. The resulting guideline range was 140 to 175 months’
imprisonment; the district court sentenced M r. Espinosa at the bottom of that
range.
Standard of Review
To begin with, we address what standard of review to apply to the district
court’s ruling. Ordinarily, when reviewing a district court’s application of the
sentencing guidelines, we review the court’s factual findings for clear error and
its legal determinations de novo. See United States v. Serrata, 425 F.3d 886, 906
(10th Cir. 2005). W e owe particular deference, however, to certain
determinations made by the district court regarding a defendant’s prior
convictions.
The Supreme Court in Buford v. United States, 532 U.S. 59 (2001),
addressed the standard of review an appellate court should apply when reviewing
a district court’s determination under the Guidelines whether the defendant’s prior
convictions were “consolidated, hence ‘related,’ for purposes of sentencing[.]”
Id. at 60. The Guideline section at issue in that case was the same as here,
§ 4A1.2, relating to career offenders. That section provides that a sentencing
judge must treat prior sentences imposed in “related cases” as one sentence.
USSG § 4A1.2(a)(2). Prior convictions are “related” when, among other
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possibilities, they were “consolidated for . . . sentencing.” Id. § 4A1.2 cmt. n.3.
In Buford the district court had determined that there had not been a formal
consolidation order, and the defendant’s convictions had not been “functionally
consolidated, which means that the convictions were factually or logically related,
and sentencing was joint.” 532 U.S. at 61 (internal quotation marks omitted).
The defendant argued that the decision should be reviewed de novo because
she “ha[d] not contested any relevant underlying issue of fact,” but “disagree[d]
only with the District Court’s legal conclusion that a legal label . . . failed to fit
the undisputed facts.” Id. at 63. The Court, however, noted that the federal
sentencing statute “requires a reviewing court not only to ‘accept’ a district
court’s ‘findings of fact’ (unless ‘clearly erroneous’), but also to ‘give due
deference to the district court’s application of the guidelines to the facts.’
18 U.S.C. § 3742(e).” Id. The Court reasoned that such deference, rather than de
novo review, was appropriate in that case. See id. at 64.
A district court, the Court said, “is in a better position than the appellate
court to decide whether a particular set of individual circumstances demonstrates
‘functional consolidation.’” Id.
That is so because a district judge sees many more “consolidations”
than does an appellate judge. As a trial judge, a district judge is
likely to be more familiar with trial and sentencing practices in
general, including consolidation procedures. And as a sentencing
judge who must regularly review and classify defendants’ criminal
histories, a district judge is more likely to be aware of which
procedures the relevant state or federal courts typically follow.
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Experience with trials, sentencing, and consolidations will help that
judge draw the proper inferences from the procedural descriptions
provided.
Id. at 64-65. “In addition,” the Court continued, “factual nuance may closely
guide the legal decision, with legal results depending heavily upon an
understanding of the significance of case-specific details.” Id. at 65. In the case
before it, for example, the district court “usefully might have considered the
factual details of the crimes at issue in order to determine whether factual
connections among those crimes, rather than, say, administrative convenience, led
[the state court] to sentence [the defendant] simultaneously and concurrently for
the robbery and drug offenses.” Id.
Finally, the Court noted that there would be little benefit from any
uniformity produced by de novo appellate review. “The legal question at issue,”
it observed, “is a minor, detailed, interstitial question of sentencing law” and “not
a generally recurring, purely legal matter, such as interpreting a set of legal
words.” Id. “Rather, the question at issue grows out of, and is bounded by, case-
specific detailed factual circumstances.” Id. This “fact-bound nature” of the
district court’s decision “limits the value of appellate court precedent, which may
provide only minimal help when other courts consider other procedural
circumstances, other state systems, and other crimes.” Id. at 66. See United
States v. Humphries, 429 F.3d 1275, 1277 (10th Cir. 2005) (holding that the
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deferential standard announced in Buford applies to any district-court
determination that a defendant’s prior convictions were consolidated).
The reasoning underlying Buford applies to the present case. The
determination whether a guilty plea was entered in accordance w ith state law also
involves a rather unusual, fact-dependent issue, not a “generally recurring, purely
legal matter,” Buford, 532 U.S. at 65. In compliance with 18 U.S.C. § 3742(e),
we think that Buford deference should be afforded the district court’s decision
regarding the state-law bona fides of M r. Espinosa’s guilty plea.
M erits
Giving the district court such deference, we see no error in its ruling.
Although defense counsel in the state proceeding referred to his client’s plea as
“conditional,” he proceeded to state that if the condition (dismissal of the charge
against M s. M ontano) was not satisfied, the client “would like the option of
withdrawing the plea.” R. Vol. I Doc. 112 at 3. Rather than suggesting that the
plea would not be effective unless and until the condition was met, he was
asserting a potential future ground for setting aside the plea. It made sense for
defense counsel to alert the state court to the possibility of a later request to
withdraw the plea, so that the good faith of such a request w ould be apparent.
New M exico courts look unfavorably on defendants w ho seek to withdraw their
pleas for tactical reasons. See State v. Clark, 772 P.2d 322, 327 (N.M . 1989)
(“[T]he purpose for allowing a defendant to withdraw a guilty plea is not to allow
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a defendant to make a tactical decision to enter a plea, wait several weeks, and
then obtain a withdrawal if he believes that he made a bad choice.”), overruled on
other grounds by State v. Henderson, 789 P.2d 603, 612 (N.M . 1990); State v.
Barnett, 965 P.2d 323, 330 (N.M . Ct. App. 1998) (“[A] defendant generally may
not withdraw a guilty plea as a matter of right after sentencing unless the
defendant proves that the w ithdrawal is necessary to correct a manifest
injustice . . . .”). A court would be much more receptive to withdrawal of the plea
if it were clear that the plea was based on a mistaken understanding of what the
consequences of the plea would be.
The conditionality in M r. Espinosa’s plea was not unlike that found in
many plea bargains. The defendant pleads guilty with the understanding that the
government will later perform as promised under the agreement. If the
government reneges, the defendant may seek to withdraw the plea. See Mabry v.
Johnson, 467 U .S. 504, 509 (1984) (“[W ]hen the prosecution breaches its promise
with respect to an executed plea agreement, the defendant pleads guilty on a false
premise, and hence his conviction cannot stand . . . .”); State v. Ortiz, 427 P.2d
264, 266 (N .M . 1967) (A plea “induced” by a prosecutor’s “unkept agreement” is
involuntary and defendant must be allowed to withdraw it). The conditionality of
a plea bargain, however, does not make the guilty plea ineffective as a conviction
until the promise is fulfilled; rather, failure to fulfill the promise constitutes
ground for setting aside the valid plea.
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To support his view that a “conditional statutory judgment and sentence is
void” under New M exico law, Aplt. Br. at 14, M r. Espinosa cites only the
dissenting opinion in State v. M adrigal, 513 P.2d 1278 (N.M . Ct. App. 1973). In
that case the defendant had enlisted in the Army shortly before committing
aggravated assault. At the sentencing hearing the trial court imposed a sentence
of one to five years, “unless defendant’s attorney furnished the court with two
things— a statement from the victim that she did not wish the matter pursued
further and a statement that the Army would accept defendant,” in which case the
court would “‘go back and dismiss these charges.’” Id. at 1283. W hen the
defendant was unable to meet the two conditions, the court sentenced him to
prison. On appeal the majority opinion affirmed the judgment and sentence. The
dissenting opinion, however, declared that the “conditional” judgment and
sentence was “beyond the jurisdiction of the trial court” and “void on its face.”
Id. at 1284 (Sutin, J., dissenting). W e find this dissent of no assistance to
M r. Espinosa. He gives us no reason to believe that the dissent’s view, upon
which the majority opinion did not comment, represents settled New M exico law.
M oreover, our concern is a supposedly conditional acceptance of a guilty plea,
not a conditional sentence as in M adrigal. Neither the M adrigal majority opinion
nor the dissent addressed the validity of the defendant’s guilty plea.
In sum, we see no reason to set aside the district court’s ruling that
M r. Espinosa entered a valid guilty plea on April 3, 2002, particularly given the
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deference we owe the court. Accordingly, imposition of the career-offender
enhancement was proper.
Conclusion
W e AFFIRM the judgment and sentence of the district court.
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