NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT MAR 25 2011
MOLLY C. DWYER, CLERK
U .S. C O U R T OF APPE ALS
UNITED STATES OF AMERICA, No. 09-10463
Plaintiff - Appellee, D.C. No. 2:08-cr-00421-WBS-1
v.
MEMORANDUM *
TERRENCE BRECKENRIDGE,
Defendant - Appellant.
Appeal from the United States District Court
for the Eastern District of California
William B. Shubb, Senior District Judge, Presiding
Argued and Submitted March 14, 2011
San Francisco, California
Before: PAEZ, BERZON, and BEA, Circuit Judges.
Terrence Breckenridge appeals the 60-month sentence imposed following
his guilty plea to being a felon in possession of a firearm, in violation of 18 U.S.C.
§ 922(g)(1). Breckenridge argues that the base offense level for his sentence was
improperly increased under U.S.S.G. § 2K2.1(a)(4), and that as a result, his
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
sentence must be vacated. We have jurisdiction under 28 U.S.C. § 1291, and we
review de novo whether a prior conviction qualifies for a sentencing enhancement.
United States v. Almazan-Becerra, 537 F.3d 1094, 1097 (9th Cir. 2008). We
affirm.
To determine whether a defendant’s prior conviction constitutes a
“controlled substance offense” under U.S.S.G. § 2K2.1(a)(4), we first compare the
categorical language of the statute of conviction with the Guideline definition of a
“controlled substance offense.” The parties agree—as they must—that a violation
of California Health & Safety Code § 11352(a) is not categorically a “controlled
substance offense” within the meaning of U.S.S.G. § 2K2.1(a)(4). See Young v.
Holder, --- F.3d ----, 2011 WL 257898 *4 (9th Cir. 2011).
Applying the modified categorical approach, Breckenridge argues that his
1993 conviction does not qualify as a “controlled substance offense” within the
meaning of U.S.S.G. § 2K2.1(a)(4). In particular, Breckenridge argues that the
grand jury transcript associated with his 1993 conviction is not judicially
noticeable evidence of the facts of his conviction under Shepard v. United States,
544 U.S. 13 (2005).
The transcript of Breckenridge’s 1993 plea colloquy demonstrates that the
state court relied on the grand jury transcript as a factual basis for Breckenridge’s
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no contest plea. The plea transcript proves that Breckenridge’s attorney and the
state prosecutor both agreed to this approach. Breckenridge contends that the
grand jury transcript is not judicially noticeable under Shepard because
Breckenridge’s attorney—but not Breckenridge himself—stipulated that the grand
jury transcript supplied a factual basis for his 1993 plea. Breckenridge argues that
if a defendant does not personally confirm that a document provides the factual
basis for his plea, the document is not judicially noticeable under Shepard.
We disagree. The California Supreme Court permits defense counsel to
stipulate to a factual basis for a client’s plea. People v. Holmes, 32 Cal. 4th 432,
442 (2004). In this context, we have held that facts admitted by defense counsel in
the defendant’s presence during a plea colloquy constitute admissions by the
defendant. See United States v. Hernandez-Hernandez, 431 F.3d 1212, 1219 (9th
Cir. 2006) (holding that a defendant was bound by his lawyer’s stipulation to the
factual basis supporting his prior California state court plea agreement); United
States v. Ferreboeuf, 632 F.2d 832, 836 (9th Cir. 1980).
Because the stipulation by Breckenridge’s attorney can be imputed to
Breckenridge, we hold that the grand jury transcript is judicially noticeable under
Shepard. Breckenridge does not argue in his brief that the grand jury transcript, if
allowed under Shepard, fails to demonstrate that he was convicted of a “controlled
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substance offense” within the meaning of U.S.S.G. § 2K2.1(a)(4). Therefore, we
affirm the district court’s application of U.S.S.G. § 2K2.1(a)(4).
AFFIRMED.
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