UNITED STATES v. HOOKS (2019)

MEMORANDUM ***

Mitchell Hooks appeals the district court’s judgment sentencing him to a 32-month prison sentence for being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g). We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742, and we affirm.

1. The district court did not err in applying a base offense level of 20 pursuant to § 2K2.1(a)(4)(A) of the United States Sentencing Guidelines. We review de novo whether a conviction qualifies as a “controlled substance offense” under the Sentencing Guidelines,¹ Cabantac v. Holder, 736 F.3d 787, 792 (9th Cir. 2013) (per curiam), but we must “uphold the district court’s factual findings used to support a sentencing enhancement absent clear error.” United States v. Mattarolo, 209 F.3d 1153, 1159 (9th Cir. 2000). There is no clear error here, because there are judicially noticeable documents in the record—e.g., Hooks’s state plea agreement and the charging document—on which the court could rely and which clearly establish that the possession of cocaine was an element of Hooks’s state law conviction.² See Reina-Rodriguez v. United States, 655 F.3d 1182, 1191 (9th Cir. 2011) (quoting Shepard v. United States, 544 U.S. 13, 16, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005)).

2. The district court did not err in considering documents produced by a probation officer rather than a government attorney. Courts are statutorily permitted to consider a probation officer’s calculations of the applicable sentencing guideline ranges,³ and they are likewise permitted to consider judicially-reviewable documentation provided by the same probation officer in support of those calculations. Cf. United States v. Felix, 561 F.3d 1036, 1045 (9th Cir. 2009) (allowing review of “documents provided by the probation officer”).

AFFIRMED.

FOOTNOTES

1.   Hooks does not dispute that Nevada Revised Statute § 453.337 is divisible as to controlled substance, and that the district court could therefore apply the modified categorical approach of determining whether his state law felony conviction constitutes a “controlled substance offense.” See Descamps v. United States, 570 U.S. 254, 257, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013).

2.   Hooks argues that the “charging document” attached to the plea agreement consists exclusively of the first page of the Information. However, that page does not on its own state any charges and is incomplete without the second page of the Information—which is in the record and which states that Hooks was charged with possession of cocaine—as it ends in the middle of a sentence.

3.   See Molina-Martinez v. United States, ––– U.S. ––––, 136 S.Ct. 1338, 1342, 194 L.Ed.2d 444 (2016); see also 18 U.S.C. § 3552(a); Fed. R. Crim. P. 32(d), (g).