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UNITED STATES OF AMERICA, Plaintiff, v. RAMON EDUARDO RAMOS, Defendant.
ORDER RE: SENTENCING
Defendant Ramon Eduardo Ramos was convicted of being a felon in possession of a firearm and ammunition, in violation of 18 U.S.C. § 922(g)(1), pursuant to an open plea to the Court. Dkt. No. 18. In advance of the sentencing hearing, the parties presented two significant legal disputes. The first involves the question whether Defendant should be sentenced under the Armed Career Criminal Act (ACCA), which imposes a mandatory minimum sentence of 15 years' imprisonment when a defendant has three previous convictions for violent felonies committed on separate occasions. 18 U.S.C. § 924(e)(1). The second involves the question whether Defendant's prior convictions for felony assault under California law qualify as violent felonies for purposes of calculating the applicable base offense level. The Court concludes that Defendant cannot be sentenced under the ACCA, but that Ninth Circuit law requires this Court to consider his felony assault convictions to be violent felonies when calculating the base offense level.
On February 25, 2022, the parties submitted a joint statement in support of Defendant's open plea, which set forth the nature of the offense, the potential penalties, and the factual basis for the guilty plea. In the factual basis, Defendant admitted that he knowingly possessed a firearm and ammunition that were manufactured outside the State of California and transported across state lines, that he previously had been convicted of at least one felony crime punishable by a term of imprisonment exceeding one year, and that he knew of this conviction when he possessed the firearm and ammunition. Dkt. No. 17.
In preparing the joint statement, the parties discussed whether Defendant would admit that he previously had been convicted of three violent felonies committed on separate occasions. They ultimately agreed that Defendant would not make those admissions after defense counsel stated that “the Court could find him ACCA-eligible without his admissions to specific prior convictions.” Dkt. No. 37-1, at ¶ 7 (citing United States v. Walker, 953 F.3d 577, 578 (9th Cir. 2020)). After further discussions, the parties agreed to state only that “[t]he enhanced penalties of [18 U.S.C.] § 924(e)(1) apply if defendant has three previous convictions for a violent felony or a serious drug offense, or both, as defined by law.” Dkt. No. 17, at ¶ 2.
On March 7, 2022, less than two weeks after the joint submission by the parties, the U.S. Supreme Court decided Wooden v. United States, 142 S. Ct. 1063 (2022). In Wooden, the defendant previously had been convicted of 10 burglaries in a single indictment for burglarizing 10 units in a single storage facility in one evening, and the question was whether those convictions occurred on different occasions under § 924(e)(1). The Supreme Court held that “[t]he answer is no,” because “[c]onvictions arising from a single criminal episode ․ can count only once under ACCA.” 142 S. Ct. at 1067. In reaching this decision, the Supreme Court expressly declined to address the separate question whether a defendant has a Sixth Amendment right to have a jury determine if prior crimes had occurred on different occasions. Id. at 1068 n.3.1
Before the scheduled sentencing hearing, the Court directed the parties to respond to their respective positions on the legal issues raised in the sentencing memoranda. The parties agree that the issue whether violent felony convictions were “committed on occasions different from one another” for purposes of the ACCA, 18 U.S.C. § 924(e)(1), is a jury question. Dkt. No. 37, at 3; Dkt. No. 38, at 1. Since Defendant did not admit to this fact, the Government seeks to force Defendant to (1) submit to a limited jury trial on this issue, (2) withdraw his guilty plea, or (3) waive his jury trial right. Defendant disagrees, asserting that he stands on his plea and that the ACCA's mandatory minimum cannot apply in this case. The parties also dispute the applicable base offense level. The Government has submitted certified records establishing that Defendant previously had been convicted twice of assault with a deadly weapon (Cal. Pen. Code § 245(a)(1)) and once of battery with serious bodily injury (Cal. Pen. Code § 243(d)). Defendant contends that these prior convictions do not qualify as violent felonies under U.S.S.G. § 2K2.1(a)(2).2
At the sentencing hearing, the Court heard argument and provided an oral tentative ruling on the two principal legal issues. The Court continued sentencing to allow the parties an opportunity to address the tentative. The parties have now filed supplemental briefs, and the matter is ready for decision.
The first question is whether Defendant is constitutionally entitled, pursuant to his plea, to be sentenced for violating § 922(g)(1) without further consideration of the sentencing enhancement under § 924(e)(1).
The Fifth Amendment's Double Jeopardy Clause “protects a defendant against ․ a second prosecution for the same offense after conviction ․” United States v. Patterson, 381 F.3d 859, 862–63 (9th Cir. 2004). Jeopardy attaches when a court accepts a valid guilty plea. Id. at 864. After accepting a guilty plea, the district court generally lacks discretion to vacate it. Id.; United States v. Flores, 650 F. App'x 362, 363 (9th Cir. 2016); United States v. Ramos-Tadeo, 475 F. App'x 651, 652 (9th Cir. 2012). A guilty plea can be vacated over a defendant's objection only if the plea colloquy was defective, such as when a judge fails to state an element of the crime. See, e.g., United States v. Seesing, 234 F.3d 456, 462 (9th Cir. 2000). However, “a plea is not defective for failure to admit a fact relevant to a sentencing enhancement.” Ramos-Tadeo, 475 F. App'x at 653. Vacating a validly entered guilty plea and retrying a defendant over his objection violates the Fifth Amendment's protection against double jeopardy. Patterson, 381 F.3d at 864–65.
The Government concedes that it would be inappropriate to set aside the guilty plea if Defendant neglected to admit “a fact relevant to a sentencing enhancement.” Dkt. No. 42, at 3 (quoting Ramos-Tadeo, 475 F. App'x at 653). But the Government argues that Defendant's plea colloquy was defective under Rule 11(b)(3) because the separate-occasions fact—which was not admitted—is an essential element of the offense rather than a fact relevant to a sentencing enhancement. Dkt. No. 42, at 3–5. This argument is inconsistent with the statutory requirements necessary to sustain a conviction for the crime charged in the indictment.
Defendant is charged in the indictment with being a felon in possession in violation of 18 U.S.C. § 922(g)(1). In submitting the joint statement for the change of plea, the Government recognized the elements of this offense, stating:
In order for defendant to be guilty of the crime charged in the indictment, that is, felon in possession of a firearm and ammunition, in violation of Title 18, United States Code, Section 922(g)(1), the following must be true:
a. First, defendant knowingly possessed a firearm and ammunition;
b. Second, the firearm and ammunition had been transported from one state to another, or between a foreign nation and the United States;
c. Third, at the time defendant possessed the firearm and ammunition, defendant had been convicted of a crime punishable by imprisonment for a term exceeding one year; and
d. Fourth, at the time defendant possessed the firearm and ammunition, defendant knew that he had been convicted of a crime punishable by imprisonment for a term exceeding one year.
Dkt. No. 17, at 1–2; see also United States v. Beasley, 346 F.3d 930, 933 (9th Cir. 2003) (stating elements of the offense); Model Crim. Jury Instr. 9th Cir. 14.16 (2022) (same).
The Government did not state or suggest that there were any other elements of the charged offense. On the contrary, the Government recognized that the mandatory-minimum provision in § 924(e)(1) was a sentencing enhancement. In a separate section of the joint statement entitled “Penalties,” the Government referred to that provision as providing “enhanced penalties.” Dkt. No. 17, at 2. And the Government was correct to do so. Section 924(e) is a “sentencing enhancement” provision. McNeill v. United States, 563 U.S. 816, 819 (2011) (“ACCA's sentencing enhancement applies to individuals who have three previous convictions ․ for a violent felony or a serious drug offense”) (internal citation omitted); United States v. Walton, 881 F.3d 768, 770 (9th Cir. 2018) (referring to the “imposition of a sentencing enhancement under the Armed Career Criminal Act (‘ACCA’), 18 U.S.C. § 924(e)(1)”).
The apparent change in position now taken by the Government is unpersuasive. In advancing this position, the Government relies on cases addressing a defendant's Sixth Amendment right to a jury trial on facts that increase the minimum and maximum punishment prescribed by law. See Apprendi v. New Jersey, 530 U.S. 466 (2000); Alleyne v. United States, 570 U.S. 99 (2013); see also United States v. Collazo, 984 F.3d 1308, 1322 (9th Cir. 2021) (en banc) (discussing Apprendi and Alleyne). It is true that this constitutional analysis asks whether the fact to be established is an “element” of the crime. Alleyne, 570 U.S. at 106. The inquiry in those cases, however, was for the specific purpose of determining whether the adjudicated facts must be decided by a jury under the Sixth Amendment because they affect the applicable sentencing range, including any mandatory minimum or statutory maximum sentence. Alleyne, 570 U.S. at 108 (“Facts that increase the mandatory minimum sentence are therefore elements and must be submitted to the jury and found beyond a reasonable doubt.”); see Collazo, 984 F.3d at 1322 (“We treat drug type and quantity as elements under [21 U.S.C.] section 841(b)(1) only for [the] constitutional purposes” of protecting a defendant's Sixth and Fifth Amendment rights as required by Apprendi and Alleyne).
The Government does not cite any case supporting its position in the context of the Fifth Amendment's Double Jeopardy Clause. Indeed, the principal case on which it relies, United States v. Seesing, did not raise any question about double jeopardy because the defendant moved to withdraw his plea. 234 F.3d at 458. The Government instead seeks to apply Sixth Amendment jurisprudence to the Double Jeopardy Clause without any meaningful explanation of the propriety of doing so. The proposed application, however, would engulf and thus render meaningless the conceded principle that, under Ninth Circuit law, “a plea is not defective for failure to admit a fact relevant to a sentencing enhancement.” Ramos-Tadeo, 475 F. App'x at 653 (holding that jeopardy attached because an illegal alien's failure to admit the date of his prior deportation “is relevant only to sentencing” and thus did not render the guilty plea “defective”) (citing Patterson, 381 F.3d at 865). Section 924(e)(1) is clearly a sentence-enhancement provision. As the Supreme Court has explained:
Ordinarily, a defendant convicted of being a felon in possession of a firearm, in violation of § 922(g)(1), faces a maximum sentence of ten years. § 924(a)(2). If the offender's prior criminal record includes at least three convictions for “serious drug offense[s]” or “violent felon[ies],” however, ACCA mandates a minimum sentence of 15 years. § 924(e)(1).
Shular v. United States, 140 S. Ct. 779, 783 (2020).3 This explanation makes clear the distinction between the crime and the enhancement.
The Government next argues that if the Ninth Circuit rule is applied here, then armed career criminals can avoid sentencing enhancements by pleading open to the court without making the requisite admissions. This is an overstatement. The result in this case only occurred because the parties agreed that Defendant did not have to admit the sentence-enhancing facts. The Government remains free to seek appropriate admissions to address all material allegations in the indictment, including those supporting a sentencing enhancement. If a defendant refuses to admit those allegations, a district court may reject the plea. United States v. Cokonis, 229 F. App'x 610, 611 (9th Cir. 2007) (holding that a district court did not err in refusing to accept defendant's guilty plea on a drug charge where defendant did not admit to drug quantity, refused to empanel a jury to determine this fact, and refused to waive his jury rights).
In short, Defendant is not subject to the mandatory minimum under § 924(e)(1). This Court accepted the guilty plea to a violation of § 922(g) based on the admissions upon which the parties had agreed, and those admissions did not include the allegations necessary to apply the sentencing enhancement under § 924(e)(1). Jeopardy attached upon the acceptance of the plea, and the Court is not free to set aside the plea or proceed to trial over Defendant's objection.
The parties next dispute whether Defendant's prior felony assault convictions under California law qualify as violent felonies for purposes of calculating the applicable sentencing guidelines in this case. Binding Ninth Circuit law requires this Court to find that they do. United States v. Vasquez-Gonzalez, 901 F.3d 1060, 1067–68 (9th Cir. 2018).
The calculation of the base offense level in this case is 24 if Defendant committed the offense after sustaining two or more felony convictions of “a crime of violence.” U.S.S.G. § 2K2.1(a)(2). Defendant previously had suffered two convictions for assault with a deadly weapon (Cal. Pen. Code § 245(a)(1)) and another conviction for battery with serious bodily injury (Cal. Pen. Code § 243(d)). Defendant acknowledges that those convictions qualify as violent felonies under Vasquez-Gonzalez but argues that “Vasquez-Gonzalez was wrongly decided.” Dkt. No. 41, at 4.
In Vasquez-Gonzalez, the Ninth Circuit examined whether the crime of felony assault under § 245(a)(1) of the California Penal Code was categorically a crime of violence. In doing so, the panel considered the defendant's argument that “§ 245(a)(1) can be satisfied by negligent ․ conduct.” 901 F.3d at 1067. Construing California law, the panel found that “the California Supreme Court expressly rejected the conclusion that the mens rea for assault could be satisfied by negligent or reckless conduct” and instead “requires an intent to commit a battery.” Id. (interpreting People v. Williams, 26 Cal. 4th 779, 787 (2001)).
Defendant contends that the Ninth Circuit misconstrued California law, starting with its reading of Williams. The defense contentions are not without persuasive force. While Williams used the language relied upon by the Ninth Circuit, the California Supreme Court's holding appears to allow for a conviction under § 245(a) based on reckless conduct (as that term is commonly understood). The California Supreme Court explained:
Accordingly, we hold that assault does not require a specific intent to cause injury or a subjective awareness of the risk that an injury might occur. Rather, assault only requires an intentional act and actual knowledge of those facts sufficient to establish that the act by its nature will probably and directly result in the application of physical force against another.
Williams, 26 Cal. 4th at 790; see United States v. Man, 553 F. Supp. 3d 718, 721– 23 (N.D. Cal. 2021) (noting that the California Supreme Court used an “anomalous” meaning of the term “recklessness” that does not preclude a conviction for conscious disregard of a substantial and unjustifiable risk). Indeed, California courts repeatedly have upheld felony convictions under § 245(a) for assaults that appear to involve no more than reckless conduct. See, e.g., People v. Aznavoleh, 210 Cal. App. 4th 1181, 1183–86 (2012) (applying Williams and sustaining assault conviction when the defendant deliberately ran a red light while racing his car and hit another car he did not see in time to stop).
Though there may be reason to doubt the Ninth Circuit's reading of Williams, there is no doubt whatsoever that Vasquez-Gonzalez construed California law to “require[ ] more than recklessness.” 901 F.3d at 1067 n.4 (citing Williams for the proposition that “assault in California requires more than recklessness”); id. at 1067 n.6 (rejecting the defendant's argument that “California prosecutes negligent and reckless conduct under § 245”). Consequently, this Court is not at liberty to disregard Vasquez-Gonzalez based on the recent decision in Borden v. United States, 141 S. Ct. 1817 (2021). In Borden, a Supreme Court plurality concluded that a prior conviction for a crime that “requires only a mens rea of recklessness” does not qualify as a “violent felony” for purposes of § 924(e) of the ACCA. 141 S. Ct. at 1825.4 That conclusion does not undermine the decision in Vasquez-Gonzalez, which construed California law in a manner consistent with the Borden standard. See Man, 553 F. Supp. 3d at 721 (noting that “Vasquez-Gonzalez is fully consistent with Borden”).
Thus, Vasquez-Gonzalez is still good law, and this Court is bound to follow it. Miller v. Gammie, 335 F.3d 889, 893 (9th Cir. 2003).
1. This Court also has no need to decide that question because the parties agree that Defendant is entitled to a jury trial on this enhancement issue. See discussion infra.
2. The Government has filed certified records that the Court finds sufficient to prove the convictions.
3. Section 924 was subsequently amended to increase the maximum sentence for a § 922(g) violation to 15 years. 18 U.S.C. § 924(a)(8) (effective June 25, 2022).
4. The Borden plurality is the controlling opinion. See United States v. Begay, 33 F.4th 1081, 1100 n.2 (9th Cir. 2022) (en banc) (Ikuta, J., dissenting) (noting that the “plurality opinion is a logical subset of Justice Thomas's concurrence”).
Stanley Blumenfeld, Jr. United States District Judge
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Docket No: Case No. 2:21-cr-00480-SB
Decided: September 27, 2022
Court: United States District Court, C.D. California.
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