FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 09-50009
Plaintiff-Appellee,
D.C. No.
v.
3:07-CR-03190-
JOSE RAYMUNDO CONTRERAS- JAH-1
HERNANDEZ,
OPINION
Defendant-Appellant.
On Appeal from the United States District Court
for the Southern District of California
John A. Houston, District Judge, Presiding
Submitted February 4, 2010*
Pasadena, California
Filed January 3, 2011
Before: Andrew J. Kleinfeld, Kim McLane Wardlaw, and
Consuelo M. Callahan, Circuit Judges.
Opinion by Judge Kleinfeld.
*The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
61
UNITED STATES v. CONTRERAS-HERNANDEZ 65
COUNSEL
Candis L. Mitchell, Federal Defenders of San Diego, Inc., for
the defendant-appellant.
Peter J. Mazza, Assistant U.S. Attorney, San Diego, Califor-
nia, for the plaintiff-appellee.
OPINION
KLEINFELD, Circuit Judge:
We address several sentencing issues, the most substantial
of which is whether California solicitation to commit murder1
is a crime of violence for purposes of a Guidelines enhance-
ment.
I. Facts
Jose Raymundo Contreras-Hernandez was convicted after
jury trial of being an alien found in the United States after a
previous deportation.2 The base offense level for this crime is
8,3 but the Sentencing Guidelines impose a sixteen-level
increase, to 24, if the alien’s prior deportation followed a con-
viction for a felony that was a crime of violence.4 This upward
adjustment was imposed on Contreras-Hernandez, contribut-
ing to his sixty-three months of imprisonment. For his cri-
1
Cal. Penal Code § 653f(b).
2
8 U.S.C. § 1326.
3
U.S.S.G. § 2L1.2(a).
4
U.S.S.G. § 2L1.2(b)(1)(A)(ii).
66 UNITED STATES v. CONTRERAS-HERNANDEZ
minal history category of III, a base offense level of 8 gener-
ates six to twelve months of imprisonment, but a 24 generates
sixty-three to seventy-eight months. In addition to the sen-
tencing guidelines increase, Contreras-Hernandez’s statutory
maximum was increased from two years to twenty years
because the solicitation of murder was deemed an aggravated
felony.5
Contreras-Hernandez had been convicted of soliciting the
murder of his wife.6 According to his sentencing memoran-
dum, the person he had tried to hire to kill her turned out to
be an undercover police informant. He had been sentenced to
six years of imprisonment and had served two, when he was
paroled and deported. A month later, the border patrol appre-
hended Contreras-Hernandez in California. His attorney said
at sentencing that Contreras-Hernandez’s wife had left their
son with Contreras-Hernandez’s brother and gone off to Geor-
gia, and now Contreras-Hernandez’s brother was unable to
care for the boy, so Contreras-Hernandez was coming to the
United States only to pick up his son and take him back to
Mexico.
The district court treated the statutory maximum as twenty
years, applied the guidelines adjustment for deportation after
conviction for a crime of violence, and sentenced Contreras-
Hernandez to the bottom end of his guidelines range, sixty-
three months.
II. Analysis
Contreras-Hernandez argues: (1) solicitation of murder is
not a crime of violence; (2) the district judge did not ade-
quately consider under 18 U.S.C. § 3553 the mitigating reason
for his return to the United States; (3) the indictment was
flawed because it did not set out the date of his deportation;
5
8 U.S.C. § 1326(a), (b)(2).
6
Cal. Penal Code § 653f(b).
UNITED STATES v. CONTRERAS-HERNANDEZ 67
and (4) the increase in the statutory maximum in 8 U.S.C.
§ 1326 for an aggravated felony, based on judicial findings of
fact rather than indictment and a right to jury trial on the
aggravating factor, is unconstitutional.
1. Crime of violence
[1] The question of whether solicitation of murder is a
crime of violence is not yet controlled by precedent precisely
on point, though the question is surrounded by precedent that
makes the answer clear.
Contreras-Hernandez was convicted under California Penal
Code § 653f(b): “Every person who, with the intent that the
crime be committed, solicits another to commit or join in the
commission of murder shall be punished by imprisonment in
the state prison for three, six, or nine years.” Sentencing
Guideline § 2L1.2(b)(1)(A)(ii) provides for a sixteen-level
upward adjustment if the felony preceding deportation was a
“crime of violence.” We review de novo whether a crime
qualifies as a “crime of violence.”7
[2] The guidelines commentary defines murder as a crime
of violence,8 and provides that convictions to be counted as
crimes of violence “include the offenses of aiding and abet-
7
Prakash v. Holder, 579 F.3d 1033, 1035 (9th Cir. 2009).
8
The guidelines commentary reads:
“Crime of violence” means any of the following offenses under
federal, state, or local law: murder, manslaughter, kidnapping,
aggravated assault, forcible sex offenses (including where con-
sent to the conduct is not given or is not legally valid, such as
where consent to the conduct is involuntary, incompetent, or
coerced), statutory rape, sexual abuse of a minor, robbery, arson,
extortion, extortionate extension of credit, burglary of a dwelling,
or any 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.
U.S.S.G. § 2L1.2(b)(1) cmt. n.1(B)(iii).
68 UNITED STATES v. CONTRERAS-HERNANDEZ
ting, conspiring, and attempting” as well as the offenses desig-
nated.9 But “soliciting” is not on this list. Contreras-
Hernandez argues that we should follow the reasoning of the
Sixth Circuit in United States v. Dolt.10 Dolt holds that solici-
tation to traffic in cocaine is not a controlled substance
offense for purposes of the career offender enhancement,11
because solicitation differs from and is less serious than aid-
ing and abetting, conspiring or attempting, and is not enumer-
ated in that list.
[3] We reach a contrary conclusion. We do not apply the
rule of interpretation,12 expressio unius est exclusio alterius,
because the Guidelines provide that “the term ‘includes’ is not
exhaustive.”13 That is an express rejection of the “expressio
unius . . .” inference from the word “includes.”14 The catchall
language in the definition of crime of violence, “or any
offense . . . that has as an element the use, attempted use, or
threatened use of physical force against the person of anoth-
er,” suggests a broader reach than the listed offenses.15 We
held in United States v. Cox that solicitation of murder under
9
The guidelines commentary reads: “Prior convictions of offenses
counted under subsection (b)(1) include the offenses of aiding and abet-
ting, conspiring, and attempting, to commit such offenses.” U.S.S.G.
§ 2L1.2(b)(1) cmt. n.5.
10
27 F.3d 235 (6th Cir. 1994).
11
U.S.S.G. § 4B1.1.
12
We have explained that the “expressio unius, or inclusio unius, princi-
ple . . . is a rule of interpretation, not a rule of law.” Longview Fibre Co.
v. Rasmussen, 980 F.2d 1307, 1312-13 (9th Cir. 1992).
13
U.S.S.G. § 1B1.1 cmt. n.2.
14
We have distinguished controlled substance cases that say otherwise
from cases concerning crimes of violence. Prakash v. Holder, 579 F.3d
1033, 1038 (9th Cir. 2009) (explaining that the “statute that concerns us
in this case, 18 U.S.C. § 16(b),” which defines “crimes of violence,” “does
not itself contain a provision listing some inchoate crimes, such as attempt
and conspiracy, to the exclusion of others. The legal principle that led to
the results in these controlled substances cases does not apply here.”).
15
United States v. Shumate, 329 F.3d 1026, 1030-31 (9th Cir. 2003).
UNITED STATES v. CONTRERAS-HERNANDEZ 69
a materially similar state statute is indeed a crime of violence
because it “involves a high degree of threat of physical force”
and “a serious potential risk of physical injury to another.”16
Cox interpreted the “use, attempted use, or threatened use of
physical force against another” in the guidelines adjustment
for a felon in possession of a firearm,17 the words of which are
identical to those in the catchall provision for an alien found
in the United States having previously been deported.18 And
in United States v. Shumate, building on the reasoning in Cox,
we held that solicitation of delivery of a controlled substance
suffices for the career criminal sentence enhancement because
solicitation “presents a high degree of threat” that the sub-
stance will be delivered.19
16
74 F.3d 189, 190 (9th Cir. 1996).
17
The guidelines read:
(a) The term “crime of violence” means any offense under federal
or state law, punishable by imprisonment for a term exceeding
one year, that—
(1) has as an element the use, attempted use, or threatened
use of physical force against the person of another, or
(2) is burglary of a dwelling, arson, or extortion, involves use
of explosives, or otherwise involves conduct that presents a
serious potential risk of physical injury to another.
U.S.S.G. § 4B1.2(a).
18
The commentary for the § 2L1.2 Offenses Involving Immigration,
Naturalization, and Passports definition of “crime of violence” includes a
list of enumerated crimes as well as “any other offense under federal,
state, or local law that has as an element the use, attempted use, or threat-
ened use of physical force against the person of another.” U.S.S.G.
§ 2L1.2(b)(1) cmt. n.1(B)(iii).
The definition of “crime of violence” in § 4B1.2 on career offenders
reads “any offense under federal or state law, punishable by imprisonment
for a term exceeding one year, that . . . (1) has as an element the use,
attempted use, or threatened use of physical force against the person of
another, or (2) . . . involves conduct that presents a serious potential risk
of physical injury to another.” U.S.S.G. § 4B1.2(a).
19
United States v. Shumate, 329 F.3d 1026, 1030-31 (9th Cir. 2003).
70 UNITED STATES v. CONTRERAS-HERNANDEZ
[4] The Tenth Circuit followed our reasoning, not Dolt’s,
in United States v. Cornelio-Pena.20 Cornelio-Pena holds that
solicitation to commit burglary is a violent felony for pur-
poses of the same statute of conviction, 8 U.S.C. § 1326, and
guideline, § 2L.1.2, that apply to Contreras-Hernandez: “Be-
cause the mens rea and actus reus required for solicitation are
similar to those required for aiding and abetting, conspiracy
and attempt, we conclude that solicitation is sufficiently simi-
lar to the offenses listed in the application note to be encom-
passed by the note.”21
Likewise, in Prakash v. Holder22 we held that Cox applies
to the aggravated felony provision in 8 U.S.C.
§ 1101(a)(43)(F). Prakash holds that solicitation of assault
and rape under California Penal Code § 653f(a) and (c) is a
“crime of violence,” because solicitation inherently presents
a substantial risk and high degree of threat of violence.23
Prakash compels the result in this case, because the guideline
commentary for 8 U.S.C. § 1326 convictions provides that
“ ‘aggravated felony’ has the meaning given to that term in 8
U.S.C. § 1101(a)(43).”24 This guideline provision makes
Prakash indistinguishable from this case. Because solicitation
is an aggravated felony under 8 U.S.C. § 1101(a)(43)(F), and
U.S.S.G. § 2L1.2(b)(1)(C) cmt. n.3(A) says that aggravated
felony in U.S.S.G. § 2L1.2(b)(1)(C) has the same meaning as
in 8 U.S.C. § 1101(a)(43), our holding that solicitation of a
crime of violence is itself a crime of violence under
§ 1101(a)(43)(F) compels the conclusion that solicitation of
murder is also a crime of violence under § 2L1.2(b)(1)(A)(ii).
[5] Contreras-Hernandez’s argument for a distinction
20
United States v. Cornelio-Pena, 435 F.3d 1279 (10th Cir. 2006).
21
Id. at 1286.
22
579 F.3d 1033 (9th Cir. 2009).
23
Id. at 1036-37.
24
U.S.S.G. § 2L1.2(b)(1)(C) cmt. n.3(A).
UNITED STATES v. CONTRERAS-HERNANDEZ 71
based on the ineffectuality of his solicitation does not distin-
guish solicitations from the listed equivalents. His practical
problem of hiring a hit man who turned out to be a police
informant does not distinguish him from criminal conspirators
who unknowingly recruit police undercover agents into their
midst. That the criminals may be poor judges of character,
when they seek criminal assistance for their criminal acts,
does not alter their criminal purpose and motive, or their
criminal act.
2. Mitigation
[6] Contreras-Hernandez argues that the district court erred
by failing to consider his mitigating reason for coming into
the United States illegally, bringing his son back to Mexico
when Contreras-Hernandez’s brother could no longer care for
him. He correctly points out that the district court must con-
sider the factors set out in 18 U.S.C. § 3553(a) when imposing
a sentence.
The statute says that a court must “consider”25 the listed
factors, not that it must reduce the sentence below the guide-
lines range if any mitigating factor is present. “A within-
Guidelines sentence ordinarily needs little explanation,” and
the district court “need not tick off each of the § 3553(a) fac-
tors to show that it has considered them,” nor articulate “how
each § 3553(a) factor influences its determination of an
appropriate sentence.”26
[7] The record satisfactorily demonstrates that the district
court, taking Contreras-Hernandez’s attorney’s representation
regarding his motive as true, considered it. The district court
explicitly referenced the § 3553(a) factors, Contreras-
25
The statute reads: “The court, in determining the particular sentence
to be imposed, shall consider” the factors. 18 U.S.C. § 3553(a) (emphasis
added).
26
United States v. Carty, 520 F.3d 984, 992 (9th Cir. 2008).
72 UNITED STATES v. CONTRERAS-HERNANDEZ
Hernandez’s “personal history and characteristics,” and the
“circumstances of this arrest” when making its sentencing
determination. This demonstrates that the district court judge
“considered the parties’ arguments and ha[d] a reasoned basis
for exercising his own legal decisionmaking authority,”27
which satisfies the requirements of our case law. Contreras-
Hernandez had tried to hire a hit man to kill his wife, yet got
the bottom end of the guideline range, even though the prose-
cutor and probation officer recommended the middle of the
range. Since defense counsel’s argument and Contreras-
Hernandez’s allocution focused on his beneficent motive for
illegal reentry, that argument is a likely explanation for the
district court’s decision to choose the bottom of the range.
That the district court listened to counsel and thought about
the motive is demonstrated by the court’s comment after
imposing the sixty-three-month sentence that coming back to
the United States to retrieve his son, even under the worst cir-
cumstances for his son, would land Contreras-Hernandez back
in jail.
3. Sufficiency of the indictment
Contreras-Hernandez argues that his sentence had to be
limited to a maximum of two years under subsection (a) of 8
U.S.C. § 1326, not the ten- and twenty-year maximums under
subsection (b), because the indictment did not allege the date
of his prior deportation. The indictment alleged the date he
was found in the United States, that he had “previously” been
deported, and that his deportation was “subsequent to October
28, 2005.” But the indictment did not state the deportation
date itself.
[8] Contreras-Hernandez correctly cites United States v.
Covian-Sandoval28 for the proposition that for an element of
§ 1326(b)(2) to increase to the maximum sentence, the predi-
27
Rita v. United States, 551 U.S. 338, 356 (2007).
28
462 F.3d 1090, 1097 (9th Cir. 2006).
UNITED STATES v. CONTRERAS-HERNANDEZ 73
cate felony conviction must be prior to the predicate deporta-
tion, not subsequent to it, since the statute says the deportation
has to be “subsequent to” the felony conviction. He argues
that under Apprendi v. New Jersey29 and Blakely v. Washington,30
the indictment must state the date of the deportation, because
it is an element of the crime, so that failure to state the date
is structural error and harmless-error analysis cannot be
applied.
[9] Our decisions in United States v. Mendoza-Zaragoza31
and United States v. Garcia-Hernandez32 compel rejection of
this argument. We held in Mendoza-Zaragoza that “an indict-
ment will support the 1326(b) sentence enhancement if it
alleges a removal date, thus enabling a sentencing court to
compare that date to the dates of any qualifying felony con-
victions to determine whether the sentence-enhancing
sequence is satisfied.”33 Subsequently, in United States v.
Garcia-Hernandez, we considered an indictment in the identi-
cal form as Contreras-Hernandez’s: Both indictments alleged
the date the alien was found in the United States, and alleged
that the removal was subsequent to a designated date, but did
not state the removal date.34 We held that even though the
indictment did not state the removal date, it sufficed to sup-
port an enhanced sentence under subsection (b) of § 1326,
because “it contains enough information to allow the district
29
530 U.S. 466 (2000).
30
542 U.S. 296, 301-02 (2004).
31
567 F.3d 431 (9th Cir. 2009).
32
569 F.3d 1100 (9th Cir. 2009).
33
567 F.3d 431, 434 (9th Cir. 2009).
34
Contreras-Hernandez’s indictment states that Contreras-Hernandez
“was removed from the United States subsequent to October 28, 2005.”
In Garcia-Hernandez, the indictment stated that “defendant OSCAR
JAVIER GARCIA-HERNANDEZ was removed from the United States
subsequent to April 29, 2003.” United States v. Garcia-Hernandez, 569
F.3d 1100, 1103 (9th Cir. 2009).
74 UNITED STATES v. CONTRERAS-HERNANDEZ
court to establish at sentencing that the alien’s removal
occurred after the qualifying conviction.”35
4. Apprendi
[10] Subsection (b) of 8 U.S.C. § 1326 raises the maxi-
mum sentence from two years to ten or twenty, based on prior
convictions. The court rather than a jury makes the requisite
findings of fact that increase the sentence. Because Contreras-
Hernandez’s crime was deemed to be an aggravated felony,
this subsection increased his maximum sentence to twenty
years. Contreras-Hernandez argues such judicial fact-finding
is unconstitutional under Apprendi v. New Jersey,36 though
conceding that under our current binding precedent the law is
otherwise. This argument is foreclosed by Almendarez-Torres
v. United States37 and United States v. Beng-Salazar.38
III. Conclusion
[11] Solicitation of murder is an “aggravated felony” for
purposes of 8 U.S.C. § 1236(b)(2) and a “crime of violence”
for purposes of sentencing guideline § 2L1.2(b)(1)(A)(ii). The
district court performed its obligation to consider the Section
3553 factors.
AFFIRMED.
35
Id.
36
530 U.S. 466 (2000).
37
523 U.S. 224, 226-27 (1998) (holding that a prior conviction that trig-
gers an increased maximum sentence need not be proved to a jury).
38
452 F.3d 1088, 1091 (9th Cir. 2006) (stating that Almendarez-Torres
has not been overruled).