United States v. Ramiro Ramos-Medina

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA , No. 09-50408
Plaintiff-Appellee,
D.C. No.
v. 3:08-cr-03418-JM-1

RAMIRO RAMOS-MEDINA , ORDER AND
Defendant-Appellant. AMENDED OPINION

Appeal from the United States District Court
for the Southern District of California
Jeffrey T. Miller, Senior District Judge, Presiding

Argued and Submitted
March 8, 2012—Pasadena, California

Filed June 21, 2012
Amended January 11, 2013

Before: Jerome Farris, Richard R. Clifton,
and Sandra S. Ikuta, Circuit Judges.

Opinion by Judge Clifton
2 UNITED STATES V . RAMOS-MEDINA

SUMMARY*

Criminal Law

The panel amended a June 21, 2012, opinion and denied
a petition for panel rehearing, and the court denied a petition
for rehearing en banc, in a case in which the panel affirmed
a conviction and sentence for illegally re-entering the United
States after previously having been deported.

In the amended opinion, the panel held that United States
v. Becker, 919 F.2d 568 (9th Cir. 1990), and Lopez-Cardona
v. Holder, 662 F.3d 1110 (9th Cir. 2011), establish that first-
degree burglary under Calif. Penal Code § 459 is
categorically a crime of violence and thus an “aggravated
felony” for purposes of the Immigration and Nationality Act.
The panel therefore affirmed the conviction, rejecting the
defendant’s challenge to the validity of immigration
authorities’ decision to deport him via the expedited
administrative removal procedure and their determination that
he was not eligible for discretionary relief.

Affirming the crime-of-violence enhancement of the
defendant’s sentence pursuant to U.S.S.G. § 2L1.2(b)(1)(A)
based on his § 459 conviction, the panel applied the modified
categorical approach and concluded that the defendant was
convicted of all the elements of generic burglary.

The panel also held that the district court did not err in
denying the defendant a two-level downward adjustment for

*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
 UNITED STATES V . RAMOS-MEDINA 3

acceptance of responsibility under U.S.S.G. § 3E1.1(a). The
panel distinguished the district court’s denial of the
adjustment here from cases in which district courts
interpreted the Sentencing Guidelines to forbid the award of
such an adjustment to any defendant who forces the
government to prove his guilt at trial.

COUNSEL

Vincent J. Brunkow, Federal Defenders of San Diego, Inc.,
San Diego, California, for Appellant.

Laura E. Duffy, Bruce E. Castetter, Charlotte E. Kaiser
(argued), United States Attorney’s Office, San Diego,
California, for Appellee.

Sean Riordan, San Diego, California, for Amicus Curiae
ACLU of San Diego and Imperial Counties.

ORDER

This court’s opinion, filed June 21, 2012, is amended by
inserting the words “first-degree” before “burglary” in the
following places: on page 7304 of the slip opinion, in the
second sentence of the first paragraph; on page 7305, in the
third sentence of the second full paragraph; on page 7306, in
the first sentence under the heading “A. Ramos’s Prior
Deportation;”on page 7307, in the first sentence of the first
full paragraph and in the first and second sentences of the last
(partial) paragraph; on page 7308, in the first full sentence on
the page and the last sentence of the first full paragraph; on
page 7309, in the first sentence on the page (where the words
4 UNITED STATES V . RAMOS-MEDINA

“The petitioner in” should not be italicized); on page 7310, in
the first and second sentences of the first full paragraph; and
on page 7312, in the first full sentence on the page (excluding
the Taylor citation), beginning with the words “As described
above”.

The opinion is also amended by inserting “first-degree”
before “California” in the penultimate sentence in the first
partial paragraph on page 7308, by inserting “for first-degree
burglary” before “under § 459”in the last full sentence on
page 7309, and by inserting “as defined by California Penal
Code § 459” before “involves” in the last sentence (excluding
the Id. citation) of the first full paragraph on page 7310.

The opinion is amended by the addition of the following
new sentence at the end of footnote 2 on page 7306:

Finally, the opinion is amended by replacing the last two
paragraphs, on pages 7316–17, with the following paragraph:

In this case, the district court did not
make the same mistake of law. It noted the
fact that “this case went to a full blown jury
trial,” but it based its final decision on “the
facts of this case and on this particular record”
as a whole. This was the correct analytical
 UNITED STATES V . RAMOS-MEDINA 5

approach. See Cortes, 299 F.3d at 1038.4 The
district court’s ultimate decision that
Petitioner had not adequately accepted
responsibility was not clearly erroneous. “[A]
defendant who . . . frivolously contests[]
relevant conduct that the court determines to
be true has acted in a manner inconsistent
with acceptance of responsibility.” U.S.S.G.
§ 3E1.1 cmt. n.1(A). Ramos contested the
fact and validity of his deportation at trial.
The district court asked Ramos’s counsel not
to pursue this line of argument any further
because it “r[an] afoul of the in-limine motion
order with respect to the deportation order”
and was not supported by any “offer of
proof.” In addition, Ramos disputed during
trial and in a motion for judgment of acquittal
that he ever re-entered the United States. The
court denied the motion, holding that “[t]he
evidence is rather overwhelming that . . . the
defendant was detected and detained” in the
United States. On this record, the district
court did not clearly err in finding that
Ramos’s actions were inconsistent with
acceptance of responsibility. Accordingly, we
affirm Ramos’s sentence.

Footnote 4 within that paragraph, following the citation “See
Cortes, 299 F.3d at 1038.” is as follows:

Under this approach, a district court may deny
the reduction after “balanc[ing] all the
relevant factors,” Cortes, 299 F.3d at 1039,
but—in doing so—it “may not consider
6 UNITED STATES V . RAMOS-MEDINA

against the defendant any constitutionally
protected conduct.” United States v. Sitton,
968 F.2d 947, 962 (9th Cir. 1992) (quoting
United States v. Watt, 910 F.2d 587, 592 (9th
Cir. 1990)).

With the opinion as amended, the Appellant’s petition for
panel rehearing and petition for rehearing en banc, filed
August 6, 2012, is denied. The full court has been advised of
the petition for rehearing and rehearing en banc and no judge
has requested a vote on whether to rehear the matter en banc.
See Fed R. App. P. 35; 9th Cir. R. 35-1 & advisory committee
note 2. No subsequent petitions for rehearing, rehearing en
banc, or rehearing before the full court may be filed.

OPINION

CLIFTON, Circuit Judge:

Ramiro Ramos-Medina appeals from his conviction and
sentence for illegally re-entering the United States after
previously having been deported. We conclude that Ramos’s
prior conviction for first-degree burglary under California
Penal Code § 459 qualified as a crime of violence under the
immigration laws and for sentencing purposes. We also hold
that the district court did not err in denying Ramos a two-
level downward adjustment for acceptance of responsibility
under Sentencing Guidelines § 3E1.1(a). We distinguish the
district court’s denial of an acceptance of responsibility
adjustment here from cases in which district courts
interpreted the Guidelines to forbid the award of such an
adjustment to any defendant who forces the government to
 UNITED STATES V . RAMOS-MEDINA 7

prove his guilt at trial. See United States v. Cortes, 299 F.3d
1030, 1038 (9th Cir. 2002); United States v. Ochoa-Gaytan,
265 F.3d 837, 842–43 (9th Cir. 2001). We affirm.

I. Background

In 2007, Ramos pled guilty to a charge of first-degree
residential burglary under California Penal Code § 459. The
court sentenced him to two years in prison.

Immigration officers determined that Ramos’s conviction
qualified as a “crime of violence” under 8 U.S.C. § 16(b) and
was thus an “aggravated felony” under the Immigration and
Nationality Act (“INA”), 8 U.S.C. §§ 1101(a)(43)(F);
1227(a)(2)(A)(iii). They explained to Ramos that this meant
he could be removed to Mexico under an administrative order
without appearing before an Immigration Judge. See
8 U.S.C. §§ 1227(a)(2)(A)(iii), 1228(b). They also explained
to Ramos that this procedure made him ineligible for
discretionary relief from removal. See 8 U.S.C. § 1228(b)(5).
Ramos signed a form acknowledging that he did not wish to
contest his deportation and did not wish to seek withholding
of removal. A Final Administrative Removal Order was
issued, and Ramos was taken to the Mexican border and
released.

Five days later, Border Patrol agents apprehended Ramos
on the United States side of the border. Ramos admitted that
he had illegally crossed back into the United States. He was
charged with violating 8 U.S.C. § 1326, which makes it a
crime for any alien who has been deported to re-enter the
United States without permission.
8 UNITED STATES V . RAMOS-MEDINA

Ramos moved to dismiss the indictment. He argued that
his California burglary conviction did not qualify as a
conviction for an aggravated felony and that it had therefore
been improper for the immigration authorities to deport him
via the expedited administrative process and to tell him that
he was not eligible for discretionary relief. The district court
held that his conviction for first-degree burglary under
California law did qualify as an aggravated felony and denied
Ramos’s motion. Ramos was tried before a jury and
convicted.

The district court calculated the Sentencing Guidelines
range. It determined that a base offense level of eight applied
to Ramos’s conviction. It applied a 16-level enhancement
under Guidelines § 2L1.2(b)(1)(A) because it determined that
Ramos’s prior burglary conviction qualified as a “crime of
violence.” The district court considered but rejected a two-
level downward adjustment for acceptance of responsibility.
It reasoned that

upon apprehension Mr. Ramos did admit the
elements of the conviction; however, this case
went to a full-blown jury trial, and,
importantly, I think the defense vigorously in
its examination of adverse witnesses and in its
argument to the jury challenged the
deportation removal element.

See U.S.S.G. § 3E1.1(a). Given the adjusted offense level of
24 and Ramos’s criminal history level of V, the Guidelines
suggested a sentence of 92 to 115 months.

The district court identified several reasons for a shorter
sentence, however. One of the reasons was that “at the time
 UNITED STATES V . RAMOS-MEDINA 9

of Mr. Ramos’s apprehension, he had the right instincts by
essentially admitting the elements, coming to terms with his
case and cooperating with the authorities, and admitting that
he was a deported alien found in the United States.” The
district court characterized this final reason as going
“generally to the acceptance of responsibility you were
talking about, although not expressly acceptance of
responsibility” for the purposes of the two-level downward
adjustment. The district court settled on a sentence of 42
months.1

II. Discussion

We review de novo the district court’s denial of Ramos’s
motion to dismiss his indictment based on alleged defects in
his deportation. See United States v. Muro-Inclan, 249 F.3d
1180, 1182 (9th Cir. 2001). We review de novo the district
court’s interpretation of the Sentencing Guidelines. See
United States v. Rosas, 615 F.3d 1058, 1066 (9th Cir. 2010).
We review for clear error the district court’s finding that
Ramos did not accept responsibility for his crime. See id.

1
The district court concluded that Ramos’s final sentence could be
justified either as a downward departure under Guidelines § 5K2.0 or as
a below-Guidelines sentence based on the district court’s discretion under
United States v. Booker, 543 U.S. 220, 245 (2005) and the factors listed
in 18 U.S.C. § 3553(a).
10 UNITED STATES V . RAMOS-MEDINA

A. Ramos’s Prior Deportation

Ramos argues that his prior conviction for first-degree
burglary under California Penal Code § 4592 did not qualify
as an “aggravated felony.” Ramos was removable
irrespective of whether his prior conviction was for an
aggravated felony because he had entered this country
illegally. See 8 U.S.C. § 1227(a)(1)(B). The aggravated
felony determination was relevant, however, because it was
a prerequisite to the immigration authorities’ decision to
deport Ramos via the expedited administrative removal
procedure and their determination that he was not eligible for
discretionary relief. See 8 U.S.C. §§ 1227(a)(2)(A)(iii),
1228(b), 1229c(a)(1); United States v. Garcia-Martinez,
228 F.3d 956, 960 (9th Cir. 2000). Ramos argues that the
district court should not have allowed this tainted deportation
to serve as the predicate to criminal prosecution for post-
deportation re-entry under 8 U.S.C. § 1326. See generally
United States v. Ubaldo-Figueroa, 364 F.3d 1042, 1048 (9th
Cir. 2004) (describing what a § 1326 defendant must prove to
prevail in such a collateral attack on his prior deportation).

Our decisions in United States v. Becker, 919 F.2d 568
(9th Cir. 1990), and Lopez-Cardona v. Holder, 662 F.3d 1110
(9th Cir. 2011), establish that first-degree burglary under

2
That statute subjects to punishment “[e]very person who enters
[various enumerated structures] . . . with intent to commit grand or petit
larceny or any felony.” Cal. Penal Code § 459. If the burglar enters “an
inhabited dwelling house, vessel, as defined in the Harbors and Navigation
Code, which is inhabited and designed for habitation, floating home, as
defined in subdivision (d) of Section 18075.55 of the Health and Safety
Code, or trailer coach, as defined by the Vehicle Code, or the inhabited
portion of any other building,” the burglary is “burglary of the first
degree.” Cal. Penal Code § 460.
 UNITED STATES V . RAMOS-MEDINA 11

California Penal Code § 459 is categorically a crime of
violence and thus an “aggravated felony” for the purposes of
the INA. We therefore affirm Ramos’s conviction.

In Becker, we held that first-degree burglary under
California Penal Code § 459 qualified as a “crime of
violence” under the Sentencing Guidelines. 919 F.2d at 573.
The defendant in Becker had prior convictions for first-degree
burglary under California Penal Code § 459 when he was
convicted of bank robbery. Id. at 570. The district court held
that each of the prior convictions counted as a “crime of
violence” and sentenced the defendant accordingly. Id. The
Sentencing Guidelines in effect at the time defined “crime of
violence” by reference to 18 U.S.C. § 16. Id. at 569 (citing
U.S.S.G. § 4B1.2 (1988)). Subsection (b) of 18 U.S.C. § 16
provided that any offense “that is a felony and that, by its
nature, involves a substantial risk that physical force against
the person or property of another may be used in the course
of committing the offense” was a “crime of violence.”
Accordingly, we examined whether first-degree burglary
under California Penal Code § 459 by its nature involved a
substantial risk of force. Becker, 919 F.2d at 571. We
reasoned that “[a]ny time a burglar enters a dwelling with
felonious or larcenous intent there is a risk that in the course
of committing the crime he will encounter one of its lawful
occupants, and use physical force against that occupant either
to accomplish his illegal purpose or to escape apprehension.”
Id.; see also Leocal v. Ashcroft, 543 U.S. 1, 10 (2004)
(burglary is “[t]he classic example” of a felony that involves
a substantial risk of physical force under 18 U.S.C. § 16(b)).
We concluded that California first-degree burglary was a
“crime of violence” under 18 U.S.C. § 16(b) and the then
current Sentencing Guidelines. Becker, 919 F.2d at 573; see
also Park, 649 F.3d at 1178–80.
12 UNITED STATES V . RAMOS-MEDINA

After we decided Becker, the Sentencing Commission
removed the reference to 18 U.S.C. § 16 from the relevant
section of the Sentencing Guidelines and replaced it with the
Commission’s own definition of “crime of violence.” See
United States v. Aguila-Montes de Oca, 655 F.3d 915, 919
(9th Cir. 2011) (en banc) (citing U.S.S.G. § 2L1.2 cmt.
n.1(B)(iii)). Under the new definition, a crime is a “crime of
violence” if it is included in a categorical list of generic
“crimes of violence” or is some other “offense under federal,
state, or local law that has an element the use, attempted use,
or threatened use of physical force against the person of
another.” U.S.S.G. § 2L1.2 cmt. n.1(B)(iii). Since crimes
that present merely a risk of force are not necessarily “crimes
of violence” under the new definition, the revision rendered
Becker inapplicable to sentencing for a violation of 8 U.S.C.
§ 1326. It did not, however, disturb Becker’s conclusion that
first-degree burglary under § 459 qualifies as a “crime of
violence” for the purposes of 18 U.S.C. § 16(b) and other
statutes that incorporate 18 U.S.C. § 16(b) by reference,
including the INA.

We recognized the continued vitality of Becker as a
construction of the INA in Lopez-Cardona, 662 F.3d at
1112–13. The petitioner in Lopez-Cardona, like the
defendants in Becker, had been convicted of first-degree
burglary under § 459. Id. at 1111. The Immigration Judge
and Board of Immigration Appeals determined that this
conviction qualified as a “crime of violence” under 18 U.S.C.
§ 16(b), and that the petitioner was therefore ineligible for
withholding of removal. Id. at 1112. On appeal, we
considered whether our decision in Aguila-Montes that
burglary under § 459 was not categorically a “crime of
violence” under the current version of the Sentencing
Guidelines overruled Becker’s holding that such burglary was
 UNITED STATES V . RAMOS-MEDINA 13

categorically a crime of violence under 18 U.S.C. § 16(b). Id.
at 1112–13. We reasoned that our recognition in Aguila-
Montes that § 459’s unlawfulness requirement was different
than federal generic burglary’s unlawfulness requirement did
not change the fact that the conduct prohibited by § 459
involved a substantial risk of force. Every violation of § 459
might not present that level of risk, but “the proper inquiry
for the categorical approach is whether the conduct covered
by the crime presents the requisite risk of injury ‘in the
ordinary case.’” Id. at 1112 (quoting James v. United States,
550 U.S. 192, 208 (2007)); see also United States v. Park,
649 F.3d 1175, 1179–80 (9th Cir. 2011) (holding that § 459
is categorically a “crime of violence” under Guidelines
§ 4B1.2(a)(2) because “the usual or ordinary first-degree
burglary in California involves conduct that presents a serious
risk of physical violence and injury to others”).
Consequently, we concluded that Becker’s construction of
18 U.S.C. § 16(b) remained good law in the immigration
context and made the petitioner ineligible for withholding of
removal. Id.

We recently reached an identical result in Chuen Piu
Kwong v. Holder, 671 F.3d 872, 877–78 (9th Cir. 2011). In
that case, as in Lopez-Cardona, the petitioner argued that
Aguila-Montes implied that a conviction for first-degree
burglary under § 459 is no longer a “crime of violence” under
the INA. Id. at 877. Again, however, we recognized that
Aguila-Montes “did not contradict or affect Becker’s holding
that first-degree burglary under § 459 is a crime of violence
because it involves a substantial risk that physical force may
be used in the course of committing the offense.” Id. at 878
(citing Lopez-Cardona, 662 at 1113).
14 UNITED STATES V . RAMOS-MEDINA

Like the defendant in Becker and the petitioners in Lopez-
Cardona and Kwong, Ramos was convicted for first-degree
burglary under California Penal Code § 459. And just as in
those cases, we conclude that the conviction is a “crime of
violence” under 18 U.S.C. § 16(b) because the crime of first-
degree burglary as defined by California Penal Code § 459
involves a substantial risk of harm in the ordinary case. See,
e.g., Park, 649 F.3d at 1179–80.

Ramos argues that we should not consider ourselves
bound by the decisions in Lopez-Cardona and Kwong
because he presents a different argument than did the
petitioners in those cases. In support of that proposition he
cites Webster v. Fall, 266 U.S. 507, 511 (1925) (“Questions
which merely lurk in the record, neither brought to the
attention of the court nor ruled upon, are not to be considered
as having been so decided as to constitute precedents.”). See
also, e.g., Galam v. Carmel (In re Larry’s Apartment, L.L.C.),
249 F.3d 832, 839 (9th Cir. 2001) (holding that a question
lurked in the record of a previous case because “we had no
occasion to consider” it). The continuing vitality of Becker
was not an issue that “merely lurk[ed] in the record” of
Lopez-Cardona and Kwong, however. That was the central
question.

We are bound by the decisions in Lopez-Cardona and
Kwong. There has been no change in the relevant statutes or
regulations, nor in any governing authority, notably an
intervening decision of the Supreme Court.3 Absent such a

3
Both Lopez-Cardona and Kwong were decided after Aguila-Montes
and the California decisions Ramos cites: People v. Parson, 187 P.3d 1,
17 (Cal. 2008); People v. Cole, 67 Cal. Rptr. 3d 526, 529, 540 (Cal. Ct.
App. 2007); People v. Nguyen, 46 Cal. Rptr. 2d 840, 841, 844 (Cal. Ct.
 UNITED STATES V . RAMOS-MEDINA 15

change, only an en banc panel of our court may overrule or
revise the binding precedent established by a published
opinion. As we observed in Miller v. Gammie, 335 F.3d 889,
900 (9th Cir. 2003) (en banc): “A goal of our circuit’s
decisions, including panel and en banc decisions, must be to
preserve the consistency of circuit law. The goal is codified
in procedures governing en banc review. See 28 U.S.C. § 46;
Fed. R. App. P. 35.” This panel is not free to disregard the
decision of another panel of our court simply because we
think the arguments have been characterized differently or
more persuasively by a new litigant.

To be sure, if we were persuaded by Ramos’s arguments,
we could ourselves ask our court to take the subject up en
banc, and that happens from time to time. See, e.g., Cyr v.
Reliance Standard Life Ins. Co., 642 F.3d 1202, 1205 (9th
Cir. 2011) (en banc). We have not, however, been persuaded
to take that course here. We affirm Ramos’s conviction.

B. Sentencing Adjustment For Aggravated Felony
Conviction

Ramos’s challenge to the enhancement of his sentence
based on his prior conviction for a “crime of violence”
requires us to apply the current Sentencing Guidelines’
definition of that term. The Guidelines’ Application notes
define a “crime of violence” to include “burglary of a
dwelling” and any other “offense under federal, state, or local
law that has an element the use, attempted use, or threatened
use of physical force against the person of another.” U.S.S.G.

App. 1995); People v. Felix, 28 Cal. Rptr. 2d 860, 867 (Cal. Ct. App.
1994); People v. Salemme, 3 Cal. Rptr. 2d 398, 399, 402 (Cal. Ct. App.
1992).
16 UNITED STATES V . RAMOS-MEDINA

§ 2L1.2 cmt. n.1(B)(iii); Aguila-Montes, 655 F.3d at 919. As
explained in the previous section, because the residual clause
of this definition focuses on the “use, attempted use, or
threatened use of physical force” against a person, Becker’s
holding regarding crimes involving a mere risk of physical
force is no longer applicable.

Instead, we must look to whether Ramos’s burglary
conviction qualified as a “burglary of a dwelling.” The
Supreme Court has held that the generic definition of
burglary “ha[s] the basic elements of 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). As described above, we
held in Aguila-Montes that a conviction for first-degree
burglary under California Penal Code § 459 does not
categorically fall within that definition because “California’s
definition of ‘unlawful or unprivileged entry,’ unlike the
generic definition, permits a conviction for burglary of a
structure open to the public and of a structure that the
defendant is licensed or privileged to enter.” 655 F.3d at 944.
Because a conviction under California Penal Code § 459 is
not categorically a “burglary of a dwelling” constituting a
“crime of violence,” we must therefore apply the modified
categorical approach to determine whether Ramos was in fact
convicted of all the elements of generic burglary. See id. at
945–46. We conclude that he was. We therefore affirm the
district court’s application of the crime of violence sentence
enhancement.

The modified categorical approach “‘permit[s] the
sentencing court to go beyond the mere fact of conviction’”
and look at the judicial records of the defendant’s prior
conviction. Id. at 920 (quoting Taylor, 495 U.S. at 602).
 UNITED STATES V . RAMOS-MEDINA 17

When a defendant is convicted in conjunction with a guilty
plea, the sentencing court may look to “the statement of
factual basis for the charge . . . shown by a transcript of plea
colloquy or by written plea agreement presented to the court.”
Shepard v. United States, 544 U.S. 13, 20 (2005) (internal
citation omitted). When a defendant stipulates during his
plea colloquy that a police report, probation report or similar
document contains the factual basis for his plea, the court
may also examine the incorporated document. See id.; United
States v. Almazan-Becerra, 537 F.3d 1094, 1097–1100 (9th
Cir. 2008); United States v. Espinoza-Cano, 456 F.3d 1126,
1131–32 (9th Cir. 2006).

In applying the modified categorical approach, the court
may take into account only facts on which the defendant’s
conviction “necessarily rested.” Aguila-Montes, 655 F.3d at
935–36. That does not mean, however, that courts are limited
only to facts that show an element of the offense. Id. at
936–40. As long as the prosecution’s theory of the case made
proof of a given fact “necessary” to the defendant’s
conviction, that fact is within the scope of the modified
categorical approach, irrespective of whether the fact is
directly relevant to an element of the offense or merely
incidental. Id.

During Ramos’s plea colloquy, Ramos and his attorney
confirmed that the admissions in Ramos’s probation report
formed the factual basis of Ramos’s guilty plea. Ramos
admitted to gaining entry to his neighbor’s apartment through
a window without permission or privilege, stealing some
jewelry, and fleeing out the window when the neighbor
returned. These facts demonstrate that the neighbor’s
apartment was not open to the public and that Ramos was not
licensed or privileged to enter the apartment. Because
18 UNITED STATES V . RAMOS-MEDINA

Ramos’s conviction for burglary “necessarily rested” on facts
showing that he made an unlawful or unprivileged entry into
the apartment with intent to commit a crime, Aguila-Montes,
655 F.3d at 941, we conclude that Ramos was convicted of a
“burglary of a dwelling,” which is a crime of violence under
U.S.S.G. § 2L1.2(b)(1)(A). Accordingly, the district court’s
application of a sixteen-level sentencing enhancement was
not erroneous.

C. Sentencing Adjustment for Acceptance of
Responsibility

The Sentencing Guidelines allow district courts to grant
a two-level downward adjustment to a defendant who “clearly
demonstrates acceptance of responsibility for his offense.”
U.S.S.G. § 3E1.1(a). The defendant bears the burden of
showing that he has accepted responsibility for his actions.
Cortes, 299 F.3d at 1038 (citing U.S.S.G. § 3E1.1(a)).

Ramos argues that the district court erroneously
interpreted the Sentencing Guidelines to forbid a downward
adjustment for acceptance of responsibility when a defendant
pleads not guilty and goes to trial. We disagree with Ramos’s
characterization of the district court’s decision. The district
court did not base its denial of the adjustment on Ramos’s
decision to put the government to its proof alone, but
searched Ramos’s conduct as a whole to determine whether
he nevertheless accepted responsibility. We hold that this
analysis met the standard described in our previous cases.

A guilty plea is one way a defendant can demonstrate
acceptance of responsibility, but it is not the only way.
Cortes, 299 F.3d at 1038. A defendant’s right to contest his
guilt before a jury is protected by the Constitution, and his
 UNITED STATES V . RAMOS-MEDINA 19

decision to do so “cannot be held against him.” Id. (citing
United States v. Vance, 62 F.3d 1152, 1157 (9th Cir. 1995)).
Accordingly, a defendant who puts the government to its
proof may still be eligible for a downward adjustment if, and
only if, he has “otherwise demonstrated sincere contrition.”
Id.; see also U.S.S.G. § 3E1.1, cmt. n.2 (2007); Ochoa-
Gaytan, 265 F.3d at 842–43; United States v. McKinney,
15 F.3d 849, 852 (9th Cir. 1994).

We decided Ochoa-Gaytan, Cortes, and McKinney before
the Supreme Court’s opinion in Booker rendered the
Guidelines advisory. 543 U.S. at 245. Booker makes the rule
we announced in those cases less urgent, for a defendant’s
sentence now ultimately depends on the district court’s
judgment, not on the defendant’s eligibility for certain
sentencing range adjustments prescribed by the Guidelines.
Apart from the calculation of the appropriate range under the
advisory Guidelines, the sentencing court may consider
acceptance of responsibility separately in imposing a
sentence, even if the court determined that the defendant did
not qualify for a formal adjustment on those grounds under
the Guidelines. This case was an example of that. See
U.S.S.G. § 5K2.0 (listing grounds for departing from the
otherwise-recommended range); 18 U.S.C. § 3553(a) (listing
factors on which district courts may base a below-Guidelines
sentence). As described above, the district court imposed a
sentence substantially below the advisory guideline range in
part because of Ramos’s admissions.

Nevertheless, we continue to review whether the district
court correctly calculated the Guidelines range as the first
step in our review of criminal sentences. See United States v.
Barsumyan, 517 F.3d 1154, 1157 (9th Cir. 2008). Pursuant
to this task, we review how district courts have applied the
20 UNITED STATES V . RAMOS-MEDINA

acceptance of responsibility adjustment. See, e.g., United
States v. Garrido, 596 F.3d 613, 617–18 (9th Cir. 2010).

We vacated the sentence in Ochoa-Gaytan because we
concluded that the district court denied an acceptance of
responsibility adjustment based on the defendant’s decision
to contest the evidence against him at trial. 265 F.3d at 842.
The court ignored the fact that “at the time of [the
defendant’s] arrest, he did admit . . . his [immigration]
status,” and “made no findings concerning whether Ochoa-
Gaytan demonstrated contrition.” Id. at 842, 844 (internal
quotations omitted). Instead, it took into account only the
fact that the defendant

“moved to suppress his statements. He went
to trial. The issue was factual guilt. It wasn’t
to protect or preserve some constitutional
issues. I mean, it’s been an all-out attack on
his conviction. And I don’t see how 3E1.1.
acceptance applies. Basically, that is a whole
guideline inducement to facilitate pleading
guilty and to sweeten the pot.

...

[L]egally, I do not believe in any way that this
adjustment applies on this kind of case. . . .”

Id. at 842 (quoting the district court; alterations in Ochoa-
Gaytan). On appeal, we concluded that the district court
mistakenly applied a per se bar against downward adjustment
based on the defendant’s decision to go to trial. Id. at 844.
 UNITED STATES V . RAMOS-MEDINA 21

Similarly, we concluded that the same mistake had been
made in Cortes. 299 F.3d at 1039. The sentencing court had
stated:

“In terms of acceptance of responsibility, I
also find that’s a legal issue, and that the
defendant in putting into question, and
determination by the jury, the issue of . . .
specific intent . . . . And this Court does not
believe it is appropriate to award him any
points for acceptance of responsibility.”

Id. (quoting the district court). Because it appeared that “the
district court may have believed, as a matter of law, that
Cortes was ineligible for the reduction,” we vacated the
defendant’s sentence and remanded “to allow the district
court to fully explicate the issue in the first instance.” Id.

In this case, the district court did not make the same
mistake of law. It noted the fact that “this case went to a full
blown jury trial,” but it based its final decision on “the facts
of this case and on this particular record” as a whole. This
was the correct analytical approach. See Cortes, 299 F.3d at
1038.4 The district court’s ultimate decision that Petitioner
had not adequately accepted responsibility was not clearly
erroneous. “[A] defendant who . . . frivolously contests[]
relevant conduct that the court determines to be true has acted
in a manner inconsistent with acceptance of responsibility.”

4
Under this approach, a district court may deny the reduction after
“balanc[ing] all the relevant factors,” Cortes, 299 F.3d at 1039, but— in
doing so— it “may not consider against the defendant any constitutionally
protected conduct.” United States v. Sitton, 968 F.2d 947, 962 (9th Cir.
1992) (quoting United States v. Watt, 910 F.2d 587, 592 (9th Cir. 1990)).
22 UNITED STATES V . RAMOS-MEDINA

U.S.S.G. § 3E1.1 cmt. n.1(A). Ramos contested the fact and
validity of his deportation at trial. The district court asked
Ramos’s counsel not to pursue this line of argument any
further because it “r[an] afoul of the in-limine motion order
with respect to the deportation order” and was not supported
by any “offer of proof.” In addition, Ramos disputed during
trial and in a motion for judgment of acquittal that he ever re-
entered the United States. The court denied the motion,
holding that “[t]he evidence is rather overwhelming
that . . . the defendant was detected and detained” in the
United States. On this record, the district court did not
clearly err in finding that Ramos’s actions were inconsistent
with acceptance of responsibility. Accordingly, we affirm
Ramos’s sentence.

AFFIRMED.