United States v. Daniel Palma-Bibiano

FILED
NOT FOR PUBLICATION DEC 26 2014

MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 13-10678

Plaintiff - Appellee, DC No. 4:13 cr 1336 CKJ

v.
MEMORANDUM*
DANIEL PALMA-BIBIANO,

Defendant - Appellant.

Appeal from the United States District Court
for the District of Arizona
Cindy K. Jorgenson, District Judge, Presiding

Submitted December 9, 2014**
San Francisco, California

Before: TASHIMA and PAEZ, Circuit Judges, and QUIST, Senior District
Judge.***

*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2)(C).
***
The Honorable Gordon J. Quist, Senior United States District Judge
for the Western District of Michigan, sitting by designation.
Daniel Palma-Bibiano (“Palma”) appeals his 37-month sentence for illegal

reentry after deportation, in violation of 8 U.S.C. § 1326(a), as enhanced under §

1326(b)(2). We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. §

3742(a), and we affirm.

1. Palma argues that the district court improperly concluded that his

2010 conviction was a “crime of violence” as that term is defined under United

States Sentencing Guidelines § 2L1.2(b)(1)(A)(ii). In 2010, Palma pleaded guilty

to several crimes, two of which are relevant here: Arizona Revised Statutes §§ 13-

1203, 13-1204. In United States v. Cabrera-Perez, we concluded that, if the

“limited class of documents” that Shepard v. United States, 544 U.S. 13 (2005),

permits the district court to consult in applying the modified categorical approach

demonstrates that a defendant was convicted of Arizona Revised Statutes § 13-

1203(A)(2) and/or § 13-1204(A)(2), the crime of conviction is a crime of violence

under § 2L1.2(b)(1)(A)(ii). 751 F.3d 1000, 1005-06 (9th Cir. 2014).1 Palma’s

record of conviction contains three Shepard-approved documents: the indictment,

the plea agreement, and the minute entry recording Palma’s judgment and

1
In Cabrera-Perez, we also concluded that §§ 13-1203 and 13-1204
are not categorically crimes of violence, but that they are divisible under Descamps
v. United States, 133 S.Ct. 2276 (2013). 751 F.3d at 1005-06 & n.3. Palma does
not dispute either conclusion here.

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conviction. “When a court using the modified categorical approach to determine

whether an underlying conviction is a predicate offense relies solely on the link

between the charging papers and the abstract of judgment, that link must be clear

and convincing.” Medina-Lara v. Holder, 771 F.3d 1106, 1113 (9th Cir. 2014). In

other words, the abstract of judgment must “clearly reference[] the count to which

the defendant pleaded guilty.” Id.

Here, Palma’s record of conviction contains several “clear references” to the

indictment. The plea agreement provides that Palma pleaded guilty to “Count 1:

AGGRAVATED ASSAULT, A CLASS 3 FELONY.” Moreover, the minute entry

detailing Palma’s judgment and sentence references “Count 1” on five separate

occasions. These documents demonstrate that Palma pleaded guilty to a specific

count of the indictment (Count 1). Accordingly, the district court was entitled to

“consider the facts alleged in the [indictment]” to discern Palma’s crime of

conviction. Coronado v. Holder, 759 F.3d 977, 986 (9th Cir. 2014); see also id.

(“Where the minute order or other equally reliable document specifies that a

defendant pleaded guilty to a particular count of a criminal complaint, the court

may consider the facts alleged in the complaint.”).

Count 1 charges Palma with “using a shotgun, a deadly weapon or

dangerous instrument, intentionally plac[ing] REDACTED in reasonable

3
apprehension of imminent physical injury.” This language tracks the text of §§

13-1203(A)(2) and 13-1204(A)(2) exactly. Thus, the district court properly

determined that Palma was convicted of these subsections. See Cabrera-Perez,

751 F.3d at 1006 (concluding that the defendant had been convicted of §§ 13-

1203(A)(2) and 13-1204(A)(2) where the defendant pleaded guilty to two counts in

the complaint that tracked the statutes’ text “word-for-word”). Moreover, because

§§ 13-1203(A)(2) and 13-1204(A)(2) are “crime(s) of violence,” see Cabrera-

Perez, 751 F.3d at 1005, the district court properly applied the 16-level

enhancement under § 2L1.2(b)(1)(A)(ii) of the Sentencing Guidelines in

calculating Palma’s sentence.

2. Palma further argues that the district court erred by failing adequately

to explain its reasons for rejecting his request to impose a sentence below the

lowest sentence suggested by the Guidelines (37 months). Because Palma failed to

raise this argument in the district court, we review this claim for plain error. See

United States v. Valencia-Barragan, 608 F.3d 1103, 1108 (9th Cir. 2010). “[A]

sentencing judge does not abuse his discretion when he listens to the defendant’s

arguments and then simply finds the circumstances insufficient to warrant a

sentence lower than the Guidelines range.” Id. (internal citations, quotation marks,

and brackets omitted). The record here demonstrates that the sentencing judge

4
permitted Palma to present his argument for why the court should impose a

sentence below the Guidelines before imposing the lowest sentence recommended

by the Guidelines. Under this Court’s precedent, nothing more was required.

3. Finally, Palma argues that the district court imposed his sentence

based on erroneous facts. Because Palma did not object at the sentencing hearing

to the facts he contends are erroneous, we review the district court’s factual

findings for plain error. See United States v. Santiago, 466 F.3d 801, 803 (9th Cir.

2006). To demonstrate plain error, Palma “bears the burden of showing that the

district court relied on clearly erroneous facts, affecting his substantial rights, when

either (1) calculating the Guidelines range or (2) determining his sentence.”

United States v. Christensen, 732 F.3d 1094, 1103 (9th Cir. 2013). To find clear

error, we must be “left with the definite and firm conviction that a mistake has

been committed.” Id. (internal quotation marks omitted). Here, Palma has failed

to demonstrate that the district court relied on clearly erroneous facts in

determining his sentence. It is unclear whether the district court’s statement that

Palma was “turned back at the border . . . on two different occasions” was a

description of the two instances in which Palma had been arrested for illegally

entering the United States, or, as Palma argues, an incorrect determination that

Palma was “turned back” on two additional occasions. In other words, we are not

5
left with a “definite and firm conviction” that the district court committed a

mistake in determining Palma’s sentence.

Even assuming that the district court erred in its factual findings, this error

did not “affect[ Palma’s] substantial rights.” “To conclude that a defendant’s

substantial rights were affected, ‘there must be a reasonable probability that the

error affected the outcome of the sentencing.’” United States v. Whitney, 673 F.3d

965, 972 (9th Cir. 2012) (quoting United States v. Marcus, 560 U.S. 258, 262

(2010) (brackets omitted)). No such reasonable probability exists here. The

district court refused to grant Palma’s request for a downward variance based on its

conclusion that there was “nothing warranting” the departure, as well as its

conclusion that Palma had attempted to reenter the country “quickly after his

deportation,” and, finally, his “assaultive behavior.” It is unclear what role, if any,

the district court’s (allegedly) erroneous conclusion that Palma was “turned back at

the border” on more than two occasions played in its refusal to grant a downward

variance. “Where the effect of an error on the result in the district court is

uncertain or indeterminate – where we would have to speculate – the appellant has

not met his burden of showing a reasonable probability of a different result.”

Christensen, 732 F.3d at 1106 (internal citations and quotation marks omitted).

AFFIRMED.