NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 13a0084n.06
Nos. 11-4342, 11-4378
FILED
UNITED STATES COURT OF APPEALS Jan 23, 2013
FOR THE SIXTH CIRCUIT DEBORAH S. HUNT, Clerk
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, )
) ON APPEAL FROM THE UNITED
v. ) STATES DISTRICT COURT FOR
) THE NORTHERN DISTRICT OF
RICARDO APODACA, (11-4342) ) OHIO
FRANCISCO FELIX-FELIX, (11-4378) )
)
Defendants-Appellants. ) OPINION
Before: COLE, DONALD, Circuit Judges; RUSSELL, Senior District Judge.*
DONALD, Circuit Judge. Ricardo Apodaca and Francisco Felix-Felix (“Felix”) each
pleaded guilty to conspiracy to distribute cocaine and cocaine base. Both now appeal their sentences.
Apodaca argues that his California conviction of assault with a deadly weapon other than a firearm
cannot be a predicate for career offender status. Felix claims that his prior conviction under
California Health and Safety Code (“California HSC”) 11359 cannot be a predicate for career
offender status because the government did not prove that the offense is a controlled substance
offense with Shepard documents, and that the district court did not indicate that it understood its
discretion regarding the value of his substantial assistance. For the following reasons, we affirm.
*
The Honorable Thomas B. Russell, United States Senior District Judge for the Western
District of Kentucky, sitting by designation.
Nos. 11-4342, 11-4378
United States v. Apodaca and Felix-Felix
I. BACKGROUND
After being charged in a multi-count indictment arising out of a massive drug trafficking
scheme, Apodaca pleaded guilty to conspiracy to distribute cocaine and cocaine base, in violation
of 21 U.S.C. § 846. The plea preserved Apodaca’s right to appeal the district court’s decision of
whether to sentence him as a career offender under U.S.S.G. § 4B1.1.
At Apodaca’s sentencing hearing on November 29, 2011, the district court considered
whether Apodaca’s two prior offenses qualified him as a career offender under § 4B1.1. The first
prior offense was a 1998 Minnesota conviction for conspiracy to distribute methamphetamine. The
second was a 2008 California conviction for assault with a deadly weapon other than a firearm under
California Penal Code § 245(a)(1). Apodaca argued that the California conviction was not a felony,
and, thus, could not be a predicate offense for career offender status. The district court disagreed
because the offense is punishable by a term exceeding one year; it sentenced Apodaca to 210 months
imprisonment followed by ten years of supervised release and a $100 special assessment.
Felix was charged in the same indictment and he, too, pleaded guilty to conspiracy to
distribute cocaine and cocaine base, in violation of 21 U.S.C. § 846. As part of the plea deal, Felix
waived the right to appeal “except as specifically reserved”; the reserved exceptions include:
(a) any punishment in excess of the statutory maximum; (b) any sentence to the
extent it exceeds the greater of any mandatory minimum sentence or the maximum
of the sentencing range . . . found applicable by the Court; or (c) the Court’s
determination, if any, that defendant meets the criteria for sentencing as a career
offender under U.S.S.G. § 4B1.1.
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United States v. Apodaca and Felix-Felix
His plea also reserved the right to appeal based on ineffective assistance of counsel or prosecutorial
misconduct. At his plea hearing, the court explained the plea waiver in detail and asked Felix
whether he had reviewed the waiver carefully with his attorney, whether he understood the waiver,
and whether he still wished to plead guilty. To each question, Felix responded in the affirmative.
At Felix’s sentencing hearing on December 9, 2011, the district court considered whether
Felix was a career offender under § 4B1.1 and whether to grant a downward departure. The
Presentence Investigation Report (“PSR”) indicated that Felix had two relevant prior convictions:
a 1999 California conviction for possession of marijuana for sale, in violation of California HSC
11359, and a 2001 California conviction for possession of a controlled substance for sale. The
government proved the 1999 conviction with the only documents available: a case summary from
California, case “minutes” from California showing that Felix pleaded nolo contendre to violation
of California HSC 11359, a criminal history report from Los Angeles County, and an indictment.
Felix argued that these documents were not sufficient under Shepard v. United States, 544 U.S. 13
(2005), to prove that the 1999 conviction was not a simple possession conviction, and thus, he
argued, this offense could not be a predicate for career offender status. The government responded
that the only way to violate California HSC 11359 was through possession of marijuana for sale and
that this offense is categorically a controlled substance offense; additional documents were not
necessary. The district court found that the documents adequately proved that Felix was convicted
of possession of marijuana for sale, that it is a controlled substance offense, and that Felix is a career
offender under § 4B1.1. The court also granted the government’s motion for a downward departure
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United States v. Apodaca and Felix-Felix
for Felix’s substantial assistance, pursuant to U.S.S.G. § 5K1.1, after a sidebar in which the
government explained the details of Felix’s cooperation. With the requested three-level reduction,
the new Guidelines range was 188-235 months. After considering the nature of the offense and
Felix’s acceptance of responsibility, the court sentenced Felix to 188 months imprisonment followed
by five years of supervised release and a $100 special assessment.
Both defendants appealed their sentences and we consolidated the appeals.
II. ANALYSIS
A. Apodaca’s Appeal of His Career Offender Status
Apodaca challenges the district court’s finding that he is a career offender under U.S.S.G.
§ 4B1.1 on the grounds that his California conviction for assault with a deadly weapon other than
a firearm is not a felony. We review a district court’s ruling that a defendant is eligible to be
sentenced as a career offender de novo. United States v. Meeks, 664 F.3d 1067, 1069 (6th Cir.
2012); see also United States v. Wynn, 579 F.3d 567, 570 (6th Cir. 2009) (reviewing whether a prior
conviction is a “crime of violence” under § 4B1.1 de novo). We also review de novo questions of
statutory interpretation underlying the eligibility issue. United States v. Morris, 203 F.3d 423, 424
(6th Cir. 2000).
Under § 4B1.1(a), a defendant is a career offender if:
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Nos. 11-4342, 11-4378
United States v. Apodaca and Felix-Felix
(1) the defendant was at least eighteen years old at the time the defendant committed
the instant offense . . . , (2) the instant offense 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.
There is no question that Apodaca has met the first and second prongs. The sole question here is
whether his California conviction for assault with a deadly weapon other than a firearm may be
deemed a prior felony conviction for purposes of this section.
Apodaca’s California conviction falls under California Penal Code § 245(a)(1), in which
“[a]ny person who commits an assault upon the person of another with a deadly weapon other than
a firearm . . . shall be punished by imprisonment in the state prison for two, three, or four years, or
in a county jail for not exceeding one year.” CAL. PENAL CODE § 245(a)(1) (West 2012). When a
sentencing court sentences a defendant pursuant to the last option, the offense is treated as a
misdemeanor under California law. CAL. PENAL CODE § 17(b) (West 2012) (making a crime a
“misdemeanor for all purposes” after a judgment imposing a sentence other than state prison). In
California, this is termed a “wobbler” offense because, in essence, the sentencing judge has the
option of making the offense a felony or a misdemeanor, depending on the sentence imposed. See
United States v. Boumelhem, 339 F.3d 414, 425-26 (6th Cir. 2003). Apodaca contends that his
conviction was only a misdemeanor because the court chose to impose a sentence of 365 days in
county jail, making the conviction a misdemeanor “for all purposes.”
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United States v. Apodaca and Felix-Felix
In prior circumstances where we have dealt with California wobbler offenses, we have looked
to the designation under California law to determine whether the offense was a misdemeanor or a
felony. See United States v. Robinson, 390 F.3d 853, 879-80 (6th Cir. 2004); United States v.
Boumelhem, 339 F.3d at 425-27. However, both Robinson and Boumelhem involved a sentencing
enhancement under 18 U.S.C. § 922, under which “any state offense classified by the laws of the
State as a misdemeanor” are expressly excluded from the felony definition. See 18 U.S.C. § 921(20).
Here, the applicable Guideline is quite different. A “prior felony conviction” means a “prior adult
federal or state conviction for an offense punishable by . . . a term exceeding one year, regardless
of whether such offense is specifically designated as a felony and regardless of the actual sentence
imposed.” U.S.S.G. § 4B1.2 cmt. 1 (emphasis added). The designation of the offense under
California law and the actual sentence imposed is irrelevant. The only relevant question is whether
the California offense is punishable by a term exceeding one year.
Apodaca argues the California statute effectively encompasses two offenses: one that is
punishable by a longer term in state prison and one that is punishable by county jail for a term “not
exceeding one year.” See CAL. PENAL CODE § 245(a)(1). By selecting the county jail option, he
argues, the California sentencing court restricted itself to a sentence “not exceeding one year” and
this is the equivalent of convicting him of an offense not punishable by a term exceeding one year.
We find this to be a misreading of the statute. The statute encompasses a single offense: “assault
with a deadly weapon . . . other than a firearm.” Id. That single offense “shall be punished by
imprisonment . . . for two, three or four years or in a county jail for not exceeding one year.” Id. The
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United States v. Apodaca and Felix-Felix
statute provides for multiple punishment options, not multiple offense options. The single offense
is punishable by a term exceeding one year, and this satisfies § 4B1.1.
Even if it were appropriate for us to look more closely to the intent of California law, it is
apparent that Apodaca’s California offense is not a misdemeanor. Apodaca was not, as he contends,
sentenced to a misdemeanor sentence. Rather, he was sentenced to 365 days in county jail,
suspended, credit for 144 days, and five years of probation. Under California law, where a court
suspends a sentence and orders probation, it is considered a conviction, but no judgment has been
rendered. See People v. Esparza, 253 Cal. Ct. App. 2d 362, 364 (1967); see also United States v.
Soto-Lara, 471 F. App’x 720, 722 (9th Cir. 2012); United States v. Robinson, 967 F.2d 287, 293 (9th
Cir. 1992), abrogated in part on other grounds by Ortega-Mendez v. Gonzales, 450 F.3d 1010, 1020
(9th Cir. 2006). Section 17(b) offenses are regarded as felonies until a judgment is entered. People
v. Glee, 82 Cal. Ct. App. 4th 99, 103 (2000). Apodaca makes no argument to show that a judgment
was actually rendered, so it would not be considered a misdemeanor even in California.
Accordingly, the district court did not err in finding that Apodaca is a career offender under § 4B1.1.
C. Felix’s Appeal of His Career Offender Status
Felix, too, challenges the district court’s finding that he is a career offender under U.S.S.G.
§ 4B1.1. Felix argues on appeal that the government did not adequately prove that his 1999
California conviction was a controlled substance offense, and, thus, this offense cannot be used as
a predicate for § 4B1.1 career offender status. Specifically, he argues that the case summary and
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United States v. Apodaca and Felix-Felix
docket sheet the government relied on were “non-Shepard documents,” which he claims is improper
under Shepard v. United States, 544 U.S. 13 (2005). The government acknowledges that these
documents do not satisfy Shepard, but it argues that it did not have to provide Shepard documents
in this case because Felix did not challenge the fact of the conviction and the statutory definition was
adequate to determine the nature of the offense. Again, we review a defendant’s eligibility to be
sentenced as a career offender de novo. Meeks, 664 F.3d at 1069.
We use a categorical approach to determine whether a prior offense is a controlled substance
offense. United States v. Galloway, 439 F.3d 320, 322 (6th Cir. 2006). This means that a court
usually only need review the fact of conviction and the statutory definition of the predicate offense
to determine whether it is a controlled substance offense. Id. If, however, the relevant statue does
not provide a clear answer, then the sentencing court may consult other documents. Id. at 323.
In Shepard, the Supreme Court endorsed the categorical approach for determining whether
a prior conviction of burglary was a violent felony under the ACCA, but allowed the sentencing
court to rely on additional documents when the defendant was convicted under a non-generic statute.
544 U.S. at 19-26. Appropriate documents include “the charging document, the terms of a plea
agreement or transcript of colloquy . . . in which the factual basis for the plea was confirmed by the
defendant, or to some comparable judicial record.” Id. at 26. In the ACCA context, we have noted
that Shepard documents are only appropriate where “the crime at issue contains at least two
categories, at least one way of committing the offense is a crime of violence, and at least one way
of committing the offense is not.” United States v. Young, 580 F.3d 373, 385 (6th Cir. 2009). We
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United States v. Apodaca and Felix-Felix
have also held that Shepard applies to determining whether a prior conviction is a controlled
substance offense under § 4B1.1. Galloway, 439 F.3d at 323. For this analysis, the court may rely
on Shepard documents if the convicting statute does not make it clear whether the defendant’s
offense qualifies as a controlled substance offense. Id. By necessary implication, this means that
when the statute is clear on its face as to whether it is a controlled substance offense, it is
inappropriate to consider Shepard documents.
Felix’s 1999 conviction was for violation of a statute that provides that “every person who
possesses for sale any marijuana, except as otherwise provided by law, shall be punished” in a
“county jail for 16 months, or two or three years.” CAL. HEALTH & SAFETY CODE § 11359 (West
2011); CAL. PENAL CODE § 1170(h). There is no other way to violate this statute. A “controlled
substance offense” under § 4B1.1 is an offense “punishable by imprisonment for a term exceeding
one year” that prohibits “the possession of a controlled substance . . . with intent to manufacture,
import, export, distribute, or dispense.” U.S.S.G. § 4B1.2(b). The California conviction for
possession of marijuana for sale fits this definition.
Felix does not challenge the fact of the offense or the specific convicting statute. He merely
argues that the government did not prove its case. The government presented a case summary from
California, case “minutes” from California, a criminal history report from Los Angeles County, and
an indictment to prove the nature of this conviction. These were the only documents that exist in
California regarding the offense. The documents show that Felix was charged with and pleaded nolo
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United States v. Apodaca and Felix-Felix
contendre to a violation of California HSC 11359. We find that the district court did not err in
relying on these documents to show the fact of the conviction.
D. Felix’s Challenge Regarding the District Court’s Sentencing Discretion
Felix also challenges his sentence on the ground that the district court did not state on the
record that it understood its sentencing discretion. The result of this misunderstanding, he claims,
is that when the court granted the government’s motion for a downward departure pursuant to §
5K1.1, it merely adopted the government’s suggestion rather than making an independent assessment
of the value of his substantial assistance. See United States v. Grant, 636 F.3d 803, 816 (6th Cir.
2011) (noting that a district court is free to give a lesser or greater reduction than recommended
based on an independent assessment of the value of the substantial assistance). The government
responds that this appeal fits squarely within the appeal waiver in Felix’s plea and that review of this
issue is precluded. We review de novo the question of whether a defendant has waived the right to
appeal in a plea waiver. United States v. Smith, 344 F.3d 479, 483 (6th Cir. 2003).
There is no question that a defendant may waive the right to appeal by means of a valid plea
agreement. United States v. Toth, 668 F.3d 374, 377 (6th Cir. 2012); Smith, 344 F.3d at 483. This
court is bound by that agreement so long as the present appeal falls within the scope of the waiver,
and so long as the waiver was knowing and voluntary. Toth, 668 F.3d at 378; Smith, 344 F.3d at
483.
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Nos. 11-4342, 11-4378
United States v. Apodaca and Felix-Felix
As for the scope, Felix’s plea expressly waived his appeal rights “except as specifically
reserved.” The only specific reservations are for ineffective assistance, prosecutorial misconduct,
or one of three specific sentencing decisions. The three sentencing decisions reserved were a
sentence in excess of the statutory maximum, a sentence higher than the applicable Guidelines range,
and a determination that Felix is a career offender. Felix’s challenge that the district court did not
understand its sentencing discretion cannot be classified as any of these. He does not allege that his
counsel or the prosecutor did anything improper. He was not sentenced above his applicable
Guidelines range, and no statutory minimum applied because the court granted a § 5K1.1 motion.
See United States v. Hameed, 614 F.3d 259, 262-63 (6th Cir. 2010) (noting that a sentencing court
is not bound by the statutory minimum when it grants a motion for downward departure pursuant
to § 5K1.1.) This challenge does not arise out of the court’s decision regarding Felix’s career
offender status. Thus, the plea waiver applies to this challenge.
To determine whether a waiver was knowing and voluntary, we look to the plea itself as well
as to the plea colloquy. See United States v. Swanberg, 370 F.3d 622, 626 (6th Cir. 2004); see also
United States v. Murdock, 398 F.3d 491, 497 (6th Cir. 2005) (finding error where the district court
did not inform the defendant of the appeal waiver as required by Rule 11(b)(1)(N)). Here, the plea
itself states that Felix had been advised by counsel of the right to appeal his sentence conferred by
18 U.S.C. § 3742, and that he “expressly and voluntarily waives those rights.” At his plea hearing,
the district court carefully explained that all appeal rights had been waived with the exception of the
ones listed in the plea, which it also explained. The court asked Felix if his attorney had explained
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United States v. Apodaca and Felix-Felix
this carefully, and Felix then conferred with his attorney in court. The court asked Felix whether he
understood the waiver and whether he still wished to plead guilty and Felix responded “yes” to both
questions. There is nothing here that would suggest that the waiver could have been anything other
than knowing and voluntary. See Swanberg, 370 F.3d at 626 (considering a waiver knowing and
voluntary when the court explained the waiver at the plea hearing although the court later
erroneously informed the defendant that he had the right to appeal). Felix knowingly and voluntarily
waived his right to appeal this issue and we will not review it.
III. CONCLUSION
For the foregoing reasons, the sentences imposed by the district court are affirmed as to both
Apodaca and Felix.
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