United States v. Torres-Romero

FILED
United States Court of Appeals
Tenth Circuit

August 19, 2008
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,
v. No. 07-1421
ALFREDO TORRES-ROMERO, also
known as Jose Lopez-Vergara,

Defendant - Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
(D.C. NO. 07-CR-80-REB)

Vicki Mandell-King, Assistant Federal Public Defender (Raymond P. Moore,
Federal Public Defender, with her on the briefs), Denver, Colorado, for
Defendant-Appellant.

John M. Hutchins, Assistant United States Attorney (Troy Eid, United States
Attorney, and Brenda Taylor, Assistant United States Attorney, with him on the
brief), Denver, Colorado, for Plaintiff-Appellee.

Before MURPHY, HARTZ, and GORSUCH, Circuit Judges.

MURPHY, Circuit Judge.
I. Introduction

Alfredo Torres-Romero appeals the district court’s application of a sixteen-

level enhancement, pursuant to U.S.S.G. § 2L1.2(b)(1)(A), arguing the

government failed to meet its burden of proving his prior state conviction was a

“drug trafficking offense.” We conclude the district court did not err because

Torres-Romero’s 1990 Colorado guilty plea admitted all of the material facts in

the charging information, including that he distributed and sold a controlled

substance. Exercising jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C.

§ 3742, we affirm the sentence imposed by the district court.

II. Background

Torres-Romero pleaded guilty to illegally reentering the United States

following a prior deportation, in violation of 8 U.S.C. § 1326(a) and (b)(2). Prior

to his sentencing hearing, Torres-Romero objected to a sixteen-level

enhancement, under U.S.S.G. § 2L1.2(b)(1)(A), for committing a prior drug

trafficking offense. The basis for the enhancement was a 1990 guilty plea for

violating Colorado Revised Statute § 18-18-105 (1990) (repealed 1992 and re-

designated as § 18-18-405), which criminalized unlawful distribution,

manufacturing, dispensing, sale, or possession of a controlled substance for which

Torres-Romero was sentenced to five years’ imprisonment. At the sentencing

hearing, the government offered two pieces of evidence to support the sixteen-

level enhancement: the information, charging Torres-Romero with violating

-2-
§ 18-18-105, and the judgment of conviction. The Colorado information charged

Torres-Romero as follows:

Alfredo Romero-Torres did unlawfully, feloniously, and knowingly
manufacture, dispense, sell, and distribute, with or without
remuneration, and possess a Schedule III controlled substance, to
wit: Lysergic Acid . . . .

The words “manufacture” and “dispense” were scored, as depicted above. The

judgment, however, included the words “manufacturing” and “dispensing.” The

judgment stated Torres-Romero had pleaded guilty to “Count Three: Unlawful

Distribution, Manufacturing, Dispensing, Sale & Possession of Controlled

Substance.” The government was unable to produce a Colorado plea agreement.

Torres-Romero argued, based on the information and the judgment, it was

impossible to discern whether he had been convicted of simple possession or a

drug trafficking offense. The district court, confining its review to the

information and judgment, overruled Torres-Romero’s objection. The court

stated because Torres-Romero had been charged and convicted in the conjunctive,

a “fair reading of both Count 3 of the Information and the concomitant judgment

of conviction convinces me that he was convicted of a drug-trafficking offense

within the meaning of guideline Section 2L1.2(b)(1)(A).” R. Vol. III at 12. The

court applied the § 2L1.2(b)(1)(A) enhancement, but granted Torres-Romero a

downward departure and imposed a term of forty-one months’ imprisonment.

-3-
III. Analysis

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

crime that can trigger a sentence enhancement under U.S.S.G. § 2L1.2(b).”

United States v. Maldonado-Lopez, 517 F.3d 1207, 1208 (10th Cir. 2008)

(quotation omitted). The Guidelines define “drug trafficking offense” as “an

offense under federal, state, or local law that prohibits the manufacture, import,

export, distribution, or dispensing of a controlled substance (or counterfeit

substance) or the possession of a controlled substance (or counterfeit substance)

with intent to manufacture, import, export, distribute, or dispense.” U.S.S.G.

§ 2L1.2(b)(1) cmt. n.1(B)(iv). Simple possession is not a drug trafficking

offense. See United States v. Herrera-Roldan, 414 F.3d 1238, 1244 (10th Cir.

2005).

When a defendant contests whether his prior conviction constitutes a drug

trafficking offense the sentencing court is generally required to follow the

categorical approach adopted in Taylor v. United States, 495 U.S. 575, 600-02

(1990), and Shepard v. United States, 544 U.S. 13, 25-26 (2005). See Herrera-

Roldan, 414 F.3d at 1240. Under the categorical approach, our review of Torres-

Romero’s Colorado conviction is confined “to the terms of the statute of

conviction.” Id. at 1241. We may draw no inferences from the defendant’s

underlying conduct. Id. at 1240-41; see also Taylor, 495 U.S. at 600 (explaining

under the categorical approach a court may “look[] only to the statutory

-4-
definitions of the prior offenses, and not to the particular facts underlying those

convictions”). When an examination of the statute, however, reveals that it

“reaches a broad range of conduct, some of which merits an enhancement and

some of which does not, courts resolve the resulting ambiguity by consulting

reliable judicial records, such as the charging document, plea agreement, or plea

colloquy.” United States v. Martinez-Hernandez, 422 F.3d 1084, 1086 (10th Cir.

2005). This is commonly referred to as the modified categorical approach.

United States v. Romero-Hernandez, 505 F.3d 1082, 1086 (10th Cir. 2007).

Under this modified approach, “the court may examine judicial records in order to

determine which part of the statute was charged against the defendant and, thus,

which portion of the statute to examine on its face.” United States v. Zuniga-

Soto, 527 F.3d 1110, 1121 (10th Cir. 2008) (quotations omitted). As we recently

explained, “this examination does not entail a subjective inquiry as to whether the

particular factual circumstances underlying the conviction satisfy the criteria of

the enhancement provision.” Id. (quotation omitted). It is the government’s

burden to establish the enhancement applies by a preponderance of the evidence.

United States v. Martinez-Villalva, 232 F.3d 1329, 1333 (10th Cir. 2000).

The parties agree that the Colorado statute, § 18-18-105, reached a broad

range of conduct, some of which constituted a “drug trafficking offense,” but also

simple possession, which did not. Thus, our task is to determine whether the

-5-
information and judgment establish by a preponderance of the evidence that

Torres-Romero was convicted of a drug trafficking offense.

Torres-Romero argues that the government failed to meet its burden. He

asserts neither the information nor the judgment prove that he was convicted of a

drug trafficking offense. First, he contends that the use of the conjunctive in the

judicial documents is meaningless, as it overlooks the fact that such documents

are routinely written in the conjunctive, but do not require the government to

prove every method of violating the statute. 1 See United States v. Powell, 226

F.3d 1181, 1192 n.4 (10th Cir. 2000) (explaining “it is hornbook law that a crime

denounced in the statute disjunctively may be alleged in an indictment in the

conjunctive, and thereafter proven in the disjunctive.” (quotation omitted)).

Second, Torres-Romero points to the alternations in the information, striking the

terms “manufacture” and “dispense.” Although he was not charged with these

two methods of violating the statute, they are included in the judgment. Thus,

Torres-Romero argues the judgment, including the terms stricken in the

information, merely establishes that he was convicted under the statute, but not

1
Colorado Statute § 18-18-105 was composed in the disjunctive, rather than
the conjunctive. It stated:

. . . it is unlawful for any person knowingly to manufacture, dispense,
sell, or distribute, with or without remuneration, to possess, or to
possess with intent to manufacture, dispense, sell, or distribute, with
or without remuneration, a controlled substance . . . .

-6-
that he was specifically convicted of the drug trafficking portions of the statute,

as opposed to simple possession.

The language in the judgment, using the terms “manufacturing” and

“dispensing,” does suggest that the judgment was parroting the title of the statute

to which Torres-Romero pleaded guilty. This, however, is not the end of the our

analysis. The Supreme Court, in United States v. Broce, 488 U.S. 563, 569

(1989), explained “[a] plea of guilty and the ensuing conviction comprehend all

of the factual and legal elements necessary to sustain a binding, final judgment of

guilt and a lawful sentence.” This court has therefore concluded that “a defendant

who makes a counseled and voluntary guilty plea admits both the acts described

in the indictment and the legal consequences of those acts.” United States v.

Allen, 24 F.3d 1180, 1183 (10th Cir. 1994); see also United States v. Brown, 164

F.3d 518, 521 (10th Cir. 1998) (explaining an “unconditional plea admit[s] all

material allegations already contained in the [] indictment”). The effect of a

guilty plea in Colorado is no different. 2 See Hahn v. People, 251 P.2d 316, 318

2
We agree with the dissent that the proper approach is to focus on the effect
of the guilty plea in the state of conviction. See United States v. Morales-
Martinez, 496 F.3d 356, 359 (5th Cir. 2007). The Fifth Circuit interpreted the
effect of a Texas guilty plea to admit “only those facts needed to support a
conviction.” Id. Applying the categorical approach, it held the sixteen-level
enhancement was improper because “neither the statutory language nor the
charging document necessitates a finding that [the defendant] committed a drug
trafficking offense.” Id. at 360. In this case, however, Colorado follows a
different approach. The effect of a guilty plea is not so narrow. See Hahn v.
(continued...)

-7-
(Colo. 1952) (holding the effect of the guilty plea is to “plead[] guilty to every

fact averred in the[] . . . information”); see also People v. Zuniga, 80 P.3d 965,

970 (Colo. Ct. App. 2003) (explaining guilty plea admits all material facts alleged

in the information); People v. Flagg, 18 P.3d 792, 794 (Colo. Ct. App. 2000)

(same). 3

In United States v. Hill, 53 F.3d 1151 (10th Cir. 1995) (en banc), this court

addressed an argument analogous to Torres-Romero’s in the context of the Armed

Career Criminal Act (“ACCA”). The defendant was charged with violating 18

U.S.C. § 922(g)(1), felon in possession of a firearm. Id. at 1152. The

government sought an enhancement pursuant to the ACCA based on one prior

2
(...continued)
People, 251 P.2d 316, 318 (Colo. 1952). Thus, we agree with the overarching
approach advocated for by the dissent, but cannot subscribe to its interpretation of
Colorado law.
3
Flagg also states that a guilty plea “has the same effect as if a defendant
had been tried before a jury and had been found guilty on evidence covering all
the material facts.” 18 P.3d at 794. The dissent interprets this language as
support for its position that a guilty plea only admits the facts necessary to sustain
a conviction. Instead, the language has been repeated by the Colorado courts for
the proposition that the acceptance of a guilty plea acts as a conviction for the
offense. See Colo. Rev. Stat. § 16-7-206(3); Juhl v. People, 172 P.3d 896, 900
(Colo. 2007). This is not the same as only admitting the essential elements
necessary to sustain a conviction. See Flagg, 18 P.3d at 794-95 (explaining guilty
plea admitted all material facts, which included facts not essential to the
conviction). Although a jury verdict need not be based upon a finding beyond
what is essential to the verdict, a guilty plea under Colorado law is a response to
the charging document, an admission to what is charged. The dissent reads the
information as charging Torres-Romero in the alternative rather than recognize
the defendant pleaded guilty to simple possession and the drug trafficking
offenses of selling and distributing a controlled substance.

-8-
second degree burglary and two robbery convictions. Id. The defendant objected

to the use of the burglary conviction, arguing it was not a violent felony under the

ACCA. Id. Under Oklahoma law, second degree burglary is broader than generic

burglary, and thus, the government was required to prove the defendant had

committed generic burglary for the conviction to provide a basis for the

enhancement under the ACCA. Id. at 1153. Like this case, the government did

not offer evidence of a plea agreement for the prior state conviction, but

introduced the charging information and judgment. Id. at 1154. The information

alleged that the defendant:

unlawfully, wrongfully, wilfully, feloniously and burglariously in the
night time, [broke] and enter[ed] into a certain building . . . owned
by and in possession of STANDARD MOTOR SUPPLY in which
building personal property of value was kept and contained, by
breaking open the outer skylight of the said building, and entering
the said building without the consent of said owner, with the wilful
and felonious intent to steal said property.

Id. The judgment merely stated the defendant was convicted of “second degree

burglary.” Id. The defendant argued that his guilty plea was an admission that he

committed second degree burglary under Oklahoma law and not that he

committed the specific acts in the information. Id. Sitting en banc, this court

resolved that the “burglary information included all of the elements of a Taylor

burglary because it alleged that Defendant unlawfully entered into a building with

the intent to commit a crime.” Id. at 1155. “By pleading guilty, Defendant

-9-
admitted that he did the discrete acts described in the indictment.” Id. (quotation

and alteration omitted).

Torres-Romero’s argument fails for the same reasons. He too “admitted all

the well-pleaded facts in the indictment by pleading guilty.” Hill, 53 F.3d at

1155. Although his admissions did not include “manufacture” or “dispense,” as

these were crossed out, they did include all other material facts in the indictment.

By entering an unconditional guilty plea, Torres-Romero admitted he “did

unlawfully, feloniously, and knowingly sell, and distribute, with or without

remuneration, and possess a . . . controlled substance,” as set out in the

information. Selling and distributing a controlled substance clearly fall within the

Guidelines’ definition of a drug trafficking offense. U.S.S.G. § 2L1.2(b)(1) cmt.

n.1(B)(iv) (defining drug trafficking offense to include an offense prohibiting,

inter alia, the distribution of a controlled substance). As a consequence, the

district court did not err in concluding Torres-Romero’s prior Colorado

conviction was a drug trafficking offense and applying the sixteen-level

enhancement, pursuant to § 2L1.2(b)(1)(A).

IV. Conclusion

For the foregoing reasons, we affirm the district court.

-10-
07-1421 - United States v. Torres-Romero

HARTZ, Circuit Judge, dissenting:

I respectfully dissent. In my view, additional evidence, such as an

admission in a plea agreement or during a plea colloquy in the Colorado

proceedings, would be necessary to establish that Mr. Torres-Romero’s Colorado

conviction was for a drug-trafficking offense. I am unwilling to assume that

when a defendant in Colorado state court pleads guilty to an information (or

indictment) that conjunctively charges several means of committing the same

statutory offense, the defendant necessarily admits having committed the offense

by each of those alternative means. As I understand Colorado law, a guilty plea

to an information establishes no more than would a jury’s guilty verdict after trial

on the information. Yet if a jury had returned a guilty verdict on the information

against Mr. Torres-Romero, we could infer only that he had committed the

offense by one of the alternative means of violating the statute. It would be

surprising to me if a judge would reject a guilty plea to the same information if

the defendant admitted to only one of the alternatives. The majority opinion cites

no supporting authority, from any jurisdiction, that addresses this specific

situation—a guilty plea to an information that charges in the conjunctive several

means of committing the same statutory offense. The one case in point that I

have found (a federal case interpreting Texas law) reaches a different conclusion

than the majority opinion does. And Colorado law also seems to suggest that
different conclusion. At the least, I think that we should certify the question to

the Colorado Supreme Court to obtain a definitive ruling.

The information filed against Mr. Torres-Romero charged a violation of

Colo. Rev. Stat. Ann. § 18-18-105, which, among other things, makes it “unlawful

for any person knowingly to manufacture, dispense, sell, or distribute, with or

without remuneration, to possess, or to possess with intent to manufacture,

dispense, sell, or distribute, with or without remuneration, a controlled

substance.” Thus, there are a variety of ways to violate the statute. As is

common, the information charged Mr. Torres-Romero in the conjunctive, alleging

that he “did unlawfully, feloniously, and knowingly manufacture, dispense, sell

and distribute, with or without remuneration, and possess a Schedule III

controlled substance.” The words manufacture and dispense, however, were at

some point (the record does not tell us when) struck through. Mr. Torres-Romero

pleaded guilty to the information, and the judgment of conviction states that he

pleaded guilty to “UNLAWFUL DISTRIBUTION, MANUFACTURING,

DISPENSING, SALE & POSSESSION OF CONTROLLED SUBSTANCE C.R.S.

1973 (as amended) 18-18-105.” It is undisputed that a jury could have convicted

Mr. Torres-Romero on the charge in the information if it found only that he had

possessed a controlled substance. See People v. Viduya, 703 P.2d 1281, 1292–93

(Colo. 1985) (en banc). It is also undisputed that if Mr. Torres-Romero’s crime

was only possession of a controlled substance, then the offense was not a “drug

-2-
trafficking offense” under USSG § 2L1.2(b), and the increase in his offense level

was improper.

The majority opinion asserts, however, that Mr. Torres-Romero’s guilty

plea admitted that he not only possessed a controlled substance, but also sold and

distributed a controlled substance, as charged in the information. I disagree.

To begin with, the authority relied upon by the majority opinion is not on

point. I will first discuss the federal cases. The quoted statement from United

States v. Broce, 488 U.S. 563, 569 (1989)—“[a] plea of guilty and the ensuing

conviction comprehend all of the factual and legal elements necessary to sustain a

binding, final judgment of guilt and a lawful sentence”—is perfectly consistent

with the view that Mr. Torres-Romero’s plea may have admitted only possession

of a controlled substance, because such an admission would have been a sufficient

factual basis “to sustain a binding, final judgment of guilt and a lawful sentence.”

And the actual holding in Broce is of no help to the majority opinion. The

Supreme Court held that a defendant who had pleaded guilty to two conspiracy

charges could not collaterally attack the convictions by trying to prove that the

two conspiracies were actually the same conspiracy and that therefore the

convictions violated the Double Jeopardy Clause. See id. at 569–74. That

holding does not speak to the issue before us.

-3-
 In United States v. Allen, 24 F.3d 1180 (10th Cir. 1994), we stated: “[A]

defendant who makes a counseled and voluntary guilty plead admits both the acts

described in the indictment and the legal consequences of those acts.” Id. at 1183

(footnote omitted). Again, however, the issue in that case was nothing like the

one here. Our holding, following Broce, was simply that the defendant’s guilty

plea forfeited his claim, raised for the first time on appeal, that the statute under

which he was charged was unconstitutionally vague. See id. at 1182–93. Another

cited case, United States v. Brown, 164 F.3d 518, 521 (10th Cir. 1998), is also

inapposite; our holding was only that the defendant’s guilty plea necessarily

admitted the jurisdictional element of the indictment—namely, that the offense

occurred in Utah. Unlike the situation in this case, in which the question is

whether the defendant admitted to more means of committing the offense than

necessary to sustain the charge, the plea in Brown would not have been valid

without admission of the jurisdictional element.

United States v. Hill, 53 F.3d 1151 (10th Cir. 1995) (en banc), is more

relevant but still readily distinguishable. The question in Hill was whether the

defendant’s prior Oklahoma conviction of burglary was for generic burglary, as

required for a sentencing enhancement under the Armed Career Criminal Act.

Generic burglary is “unlawful or unprivileged entry into, or remaining in, a

building or structure, with intent to commit a crime.” Taylor v. United States,

495 U.S. 575, 599 (1990). The Oklahoma burglary statute encompassed entry

-4-
into buildings and structures but also entry into automobiles, vending machines,

etc. The information to which the defendant had pleaded, however, alleged that

he had entered a building owned and possessed by a specific company. We held

that the plea admitted entry into a building, so the Oklahoma offense was generic

burglary. To be sure, the defendant need not have entered that particular building

to have committed the offense. But he must have entered something. And if the

Oklahoma court required a factual basis for the defendant’s plea, it is eminently

proper to presume that the thing he admitted entering was the building set forth in

the information. Certainly, if the defendant had been convicted by a jury on that

information, we would conclude that the jury had found that he had entered a

building. See Shepard v. United States, 544 U.S. 13, 20 (2005) (generic burglary

can be established by charging document on which defendant was convicted by

jury). But that is very different from presuming that if a defendant pleads guilty

to an indictment charging, say, manufacturing and distributing drugs, then he

must have admitted both manufacturing and distributing. Either

act—manufacturing or distributing—would suffice to sustain the charge. The

defendant would have to admit to one, but not both. If a defendant were

convicted by a jury under that indictment, we all agree that we could not conclude

that the jury had found that he had manufactured drugs, because the verdict could

have been sustained by a finding that he had distributed them. See United States

v. Gonzales, 484 F.3d 712, 715 (5th Cir. 2007). Hill, in agreement with the

-5-
Supreme Court’s later opinion in Shepard, permits a court to look to the charging

document to flesh out the charge beyond the bare requirements of the statute; but

it does not go so far as the majority opinion would have it. In short, Hill is

consistent with my view because it treats a guilty plea as establishing the same

facts as would a jury verdict on the same charge. In this case, however, the

majority opinion would treat a guilty plea as establishing more than would a jury

verdict on the information filed against Mr. Torres-Romero.

Moreover, whatever the above cases say about federal or Oklahoma

practice, I know of no fundamental principle that requires a jurisdiction (in this

case, Colorado) to hold that when a defendant pleads guilty to an information or

indictment charging the violation of a statute by several alternative means alleged

in the conjunctive, the defendant admits to committing the offense by all the

alternative means set forth. If that were the case, then a judge could not properly

accept a guilty plea to such a charge unless the defendant admitted committing

the offense by all such means. But would a judge in every jurisdiction really be

required (by what doctrine?) to reject a guilty plea to, say, a charge of

“manufacturing and distributing cocaine” if the defendant admitted to distributing

but denied manufacturing?

I think the proper approach is that of the Fifth Circuit’s recent decision in

United States v. Morales-Martinez, 496 F.3d 356 (2007), which looked to the law

-6-
of the jurisdiction where the guilty plea in question had been taken. As in our

case, (1) the defendant had pleaded guilty to unlawfully reentering the United

States, in violation of 8 U.S.C. § 1326(a); and (2) in computing his offense level

under USSG § 2L1.2, the district court had determined that he had committed a

drug-trafficking offense. He had a prior conviction in Texas state court for

delivering cocaine. The Texas statute, however, defined delivery to include an

offer to sell, and the Fifth Circuit had previously ruled that an offer to sell drugs

is not a drug-trafficking offense. Therefore, the sentencing court could not

assume that defendant’s prior offense was a drug-trafficking offense and would

have to determine whether the specific offense to which the defendant had

pleaded met the definition of a drug-trafficking offense. The Texas indictment

alleged that the defendant had “‘actually transfer[red], constructively

transfer[red], and offer[ed] to sell a controlled substance, to wit: COCAINE.’”

Id. at 358. The government argued that the defendant’s guilty plea was an

admission “that he both transferred and offered to sell cocaine.” Id. The Fifth

Circuit disagreed. After noting that statements in federal appellate decisions

suggested a split of authority, it said that it must look to the law of the

jurisdiction where the plea was entered. As it interpreted Texas law, the

defendant’s plea could have been sustained if he had admitted only offering to

sell cocaine. Because there was nothing else in the record to show what the

-7-
defendant had admitted, the court held that the defendant’s offense level could not

be increased for commission of a drug-trafficking offense. Id. at 359–61.

Following the Fifth Circuit’s approach, this court should determine what

Colorado law says about what Mr. Torres-Romero admitted by pleading guilty.

The majority opinion cites two Colorado Court of Appeals’ opinions to support its

view. But neither People v. Zuniga, 80 P.3d 965 (Colo. Ct. App. 2003), nor

People v. Flagg, 18 P.3d 792 (Colo. Ct. App. 2000), involved our situation:

Zuniga held merely that the defendant’s guilty plea waived his claim on appeal

“that the property was not stolen or that he did not retain it through the date

alleged in the information.” 80 P.3d at 970. And Flagg held that a guilty plea

admits involvement in a crime up to the last date stated in the charge. See 18

P.3d at 794–95. Indeed, in my view the language from Flagg quoted by the

majority opinion (and endorsed by the Colorado Supreme Court in Juhl v. People,

172 P.3d 896, 900 (2007)) is more supportive of my position than the majority’s.

Flagg said, “A plea of guilty has the same effect as if defendant had been tried

before a jury and had been found guilty on evidence covering all the material

facts.” Id. at 794. This suggests that a plea to an indictment establishes the same

facts—no more, no less—than would be established by a jury verdict of guilty

after a trial on the same indictment. That reading of Flagg would lead to the

results that were reached in Zuniga and Flagg. And it would also lead to the

result I would reach in this case.

-8-
 The majority opinion also claims support from Hahn v. People, 251 P.2d

316 (Colo. 1952). In that case the defendant pleaded guilty to a habitual-criminal

information alleging prior felonies that would increase his sentence on a charge

on which he had been convicted by a jury. He then moved to vacate his sentence

on the ground that the prior felonies did not constitute felonies under Colorado

law. The court held that the motion was barred by his guilty plea. It wrote,

Holding as we do that the plea of defendant to the habitual criminal
counts was in effect a plea of guilty, it follows that defendant
pleaded guilty to every fact averred in these counts of the
information, and there is neither law, reason, or necessity requiring
proof of the things admitted by such plea.

Id. at 318. In the context of that case, the statement was quite uncontroversial.

But the majority opinion would extrapolate to a new context the language that a

guilty plea “plead[s] guilty to every fact averred in . . . the information” and infer

that a plea necessarily is an admission of each alternative means of committing

the offense that is set forth conjunctively in the information. I disagree. We

should not treat language in an opinion as a verbal formula into which we enter

the data from any possible case that could fit the language and then recite the

answer. Judging is not such a mechanical task. Language in our opinions must

be read in context. We can be certain that the Hahn court did not have in mind

the situation presented on this appeal. General language that works almost all the

time may not be applicable in circumstances that were not envisaged when the

-9-
language was written. One example may suffice to prove the point. Perhaps the

most frequently stated proposition of law in our opinions is that “we review the

district court’s grant of summary judgment de novo, applying the same standard

used by the district court.” Johnson v. Riddle, 443 F.3d 723, 724 (10th Cir.

2006). That statement is correct in most circumstances, and virtually every reader

finds it completely acceptable; but it is wrong in one important context: If the

district court applied the incorrect standard, we are not bound to apply the “same

standard.” When the district court has so erred, “we . . . apply the summary

judgment standard that should have been applied by the district court.” Id. at 725

n.1 (internal quotation marks omitted) (emphasis added). With that example in

mind, I would not read into Hahn nearly as much as does the majority opinion.

Contrary to the majority opinion, I would interpret Colorado law to be that

Mr. Torres-Romero’s guilty plea admitted only that he had committed the

statutory offense in at least one (not necessarily all) of the alternative ways set

forth conjunctively in the information. After all, the current formulation of the

general rule in Colorado is that “[a] plea of guilty has the same effect as if

defendant had been tried before a jury and had been found guilty on evidence

covering all the material facts.” Flagg, 18 P.3d at 794. In other words, what is

factually admitted by a guilty plea is the same as what is established by a jury

verdict on the same charge. Because a jury verdict establishes only that the

defendant committed the offense by one (not necessarily all) of the means stated

-10-
conjunctively in the information, see Viduya, 703 P.2d at 1292–93, a guilty plea

establishes no more than that.

In addition, Colorado Criminal Rule 11(b)(6) states that the court shall not

accept a guilty plea without determining that “there is a factual basis for the

plea,” unless the defendant pleas under a plea agreement and waives this

requirement. A practice guide explains, “The record is sufficient to sustain a plea

of guilty if the facts show that the defendant’s conduct and state of mind are

sufficient to have concluded that the defendant is guilty of the charge.” 15 Robert

J. Dieter, Colorado Criminal Practice and Procedure § 15.40 (2d ed. 2008). I

would infer from this statement that the judge will accept a plea if the defendant

admits, or the State proffers evidence, that he has committed acts that would

constitute a violation of the statute. Accordingly, the defendant need admit only

one of the multiple means of committing an offense alleged conjunctively in an

indictment or information. The analysis in this paragraph is essentially the same

that the Fifth Circuit employed in Morales-Martinez to conclude that a Texas

guilty plea admits only one of the alternative means of committing an offense

charged conjunctively. See 496 F.3d at 359–60. I would follow that court’s lead

and reach the same conclusion here—that the government has not established that

Mr. Torres-Romero committed a drug-trafficking offense. But even if the matter

is questionable, I would certify the issue to the Colorado Supreme Court rather

than affirming the sentence below.

-11-