United States v. 2007-06-05 | 05-50501 | USA VNARVAEZ-GOMEZ | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 UNITED STATES OF AMERICA,
Plaintiff-Appellee, No. 05-50501
v. D.C. No.
 CR-04-02781-BTMLUIS NARVAEZ-GOMEZ, aka Manuel
Gomez-Feliz, OPINION
Defendant-Appellant. 
Appeal from the United States District Court
for the Southern District of California
Barry T. Moskowitz, District Judge, Presiding
Argued and Submitted
December 8, 2006—Pasadena, California
Filed June 6, 2007
Before: Robert R. Beezer, Kim McLane Wardlaw, and
Richard A. Paez, Circuit Judges.
Opinion by Judge Beezer
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COUNSEL
James Fife, Federal Defenders of San Diego, Inc., San Diego,
California, for the defendant-appellant.
Roger W. Haines, Jr., and Michael J. Crowley, Assistant
United States Attorneys, for the plaintiff-appellee.
OPINION
BEEZER, Circuit Judge:
Defendant Luis Narvaez-Gomez (“Gomez”), also known as
Manuel Gomez-Felis, appeals his conviction and sentence for
illegal re-entry after removal in violation of 8 U.S.C. § 1326.
Gomez contends that the district court improperly (1) denied
his motion to suppress post-Miranda statements, (2) excluded
his cross-examination of government witnesses regarding
official record-keeping, (3) imposed a 16-level enhancement
for committing a prior crime of violence and (4) imposed a
sentence greater than two years in violation of Apprendi v.
New Jersey, 530 U.S. 466 (2000).
We have jurisdiction pursuant to 18 U.S.C. § 3742 and 28
U.S.C. § 1291. We affirm the conviction, vacate the sentence
and remand for re-sentencing.
I
Gomez was born in Mexico and was deported from the
United States to Mexico numerous times between 1990 and
2004. Early on September 24, 2005, city police detained
Gomez in a public park in California for violating a city ordi-
nance that prohibits smoking in the park. Based on Gomez’s
responses to their questions and his lack of identifying infor-
mation, the police called the United States Border Patrol for
assistance in ascertaining Gomez’s identity.
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Agent Jill Badousek responded to the call and arrived in the
park at approximately 9:45 a.m. She asked Gomez his name,
place of birth and whether he had any documents to show his
legal presence in the United States. Gomez responded that his
name was Pedro Gomez, that he was born in Mexico and that
he had a legal permanent resident card at his house. Badousek
conducted a records check. The check showed no immigration
documents for a “Pedro Gomez.” Badousek told Gomez of the
negative results and asked if he wanted to be taken to his
house to retrieve immigration documents. Gomez admitted
that he did not have any such documents.
Badousek arrested Gomez, handcuffed him and put him in
the back seat of her vehicle. Without giving Gomez a
Miranda warning, Badousek asked whether he had ever been
arrested by Border Patrol and whether he had ever been
deported. Gomez answered both questions in the affirmative.
Badousek brought Gomez to the Border Patrol station, where
he was placed in a holding cell.
At approximately 2:00 p.m., Border Patrol agent Mark
Hopkins interviewed Gomez with Badousek present. Hopkins
first informed Gomez that he would be processed criminally
rather than administratively and that he faced potential crimi-
nal charges. Hopkins then administered a Miranda warning
and confirmed that Gomez understood his rights. Gomez
waived his rights and indicated that he wanted to make a
statement without an attorney present.
Hopkins questioned Gomez regarding (1) name, citizenship
and birthplace, (2) whether Gomez had previously been
deported, (3) where Gomez had entered the United States
before that deportation, (4) whether Gomez left the United
States after being ordered deported, (5) whether Gomez ever
applied for permission to enter the United States, (6) whether
Gomez had any documentation allowing him to enter or
remain in the United States and (7) when Gomez most
recently entered the United States. Gomez stated that he was
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a citizen of Mexico and had been previously deported. He
admitted having no permission to enter the United States and
no documentation allowing him to be in the United States.
Gomez was charged with violating 8 U.S.C. § 1326, which
prohibits an alien from re-entering the United States after
being deported or removed. He moved to suppress all of his
statements to the Border Patrol agents. After an evidentiary
hearing, the district court determined that only Gomez’s state-
ments to Badousek in her vehicle were inadmissible.
The government brought several motions in limine includ-
ing a motion to prohibit references to document destruction
and poor record-keeping by immigration officials. The district
court granted the motion in part, allowing Gomez to question
the completeness of his own immigration files. The court
excluded cross-examination by Gomez suggesting that he had
undocumented permission to enter the United States, unless
he laid a foundation or made a proffer that he in fact applied
for or received permission.
Gomez was convicted in March 2005 and sentenced on
June 7, 2005. The district court applied a 16-level enhance-
ment under the Sentencing Guidelines based on the finding
that Gomez’s prior conviction for shooting at an inhabited
dwelling constituted a crime of violence under the guidelines.
Gomez received a sentence of 96 months imprisonment. He
timely appealed the judgment and sentence on June 15, 2005.
II
Gomez argues that the district court erred in denying his
motion to suppress the statements he made after receiving
Miranda warnings. We review de novo a district court’s deci-
sion to admit statements that may have been obtained in viola-
tion of Miranda. United States v. Rodriguez-Rodriguez, 393
F.3d 849, 855 (9th Cir. 2005). Underlying factual findings are
reviewed for clear error. Id.
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[1] A defendant’s post-Miranda statements may be inad-
missible if law enforcement officers use a two-step interroga-
tion process. See Missouri v. Seibert, 542 U.S. 600, 617
(2004). A two-step interrogation involves eliciting an
unwarned confession, administering the Miranda warnings
and obtaining a waiver of Miranda rights, and then eliciting
a repeated confession. See id. at 609-10. If the interrogators
deliberately employ the two-step strategy, the district court
must suppress postwarning statements unless the interrogators
take curative measures to apprise the defendant of his rights;
if the two-step method is not deliberate, the postwarning state-
ments are admissible if voluntarily made. Id. at 622 (Ken-
nedy, J., concurring); see also United States v. Williams, 435
F.3d 1148, 1157-58 (9th Cir. 2006) (Justice Kennedy’s con-
currence in Seibert is the Court’s holding because it is narro-
west grounds with which majority of the Court would agree).
[2] Which appellate standard we use to review a district
court’s deliberateness finding is a matter of first impression.
We determine that a deliberateness finding is appropriately
reviewed as a factual finding for clear error. Cf. United States
v. Mashburn, 406 F.3d 303, 306 (4th Cir. 2005) (in case
involving pre- and postwarning statements, only voluntariness
determination was reviewed de novo). Employing the clear
error standard is consistent with our review of similar district
court determinations as to credibility and deliberateness. See
United States v. Celestine, 324 F.3d 1095, 1101 (9th Cir.
2003) (credibility determinations are reviewed for clear
error); Collazo v. Estelle, 940 F.2d 411, 416 (9th Cir. 1991)
(reviewing “whether the defendant’s mind was overborne—
i.e., was his waiver knowing and intelligent—for clear error”
(internal quotations omitted)); United States v. Kimball, 884
F.2d 1274, 1278 & n.3 (9th Cir. 1989) (whether government
deliberately induced defendant to make incriminating state-
ments is reviewed for clear error). Even if a deliberateness
finding is not clearly erroneous, we review de novo the ulti-
mate determination that a defendant’s statements were volun-
tary. Williams, 435 F.3d at 1151, 1158.
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[3] Deliberateness may be found if “objective evidence and
any available subjective evidence, such as an officer’s testi-
mony, support an inference that the two-step interrogation
procedure was used to undermine the Miranda warning.” Id.
at 1158. Objective evidence includes “the timing, setting and
completeness of the prewarning interrogation, the continuity
of police personnel and the overlapping content of the pre-
and postwarning statements.” Id. at 1159 (citing Seibert, 542
U.S. at 615).
[4] The district court concluded that agents Hopkins and
Badousek did not deliberately employ the two-step method
when interrogating Gomez.1 The court properly considered
the objective and subjective evidence of deliberateness
including the informal setting and brief nature of Badousek’s
prewarning interrogation, Hopkins’ involvement only during
the postwarning interrogation, and the lack of any reference
to the prewarning statements during the more comprehensive
postwarning interrogation. The change in setting and time
span of approximately four hours between statements also
indicate a lack of deliberateness. Cf. United States v.
Carrizales-Toledo, 454 F.3d 1142, 1152 (10th Cir. 2006)
(moving defendant to different vehicle and waiting for other
agents to arrive provided sufficient time delay and change in
setting). We conclude that the district court correctly deter-
mined that Badousek and Hopkins did not deliberately
employ a two-step interrogation.
1Gomez asserts that the district court did not make a factual finding as
to deliberateness. He argues that the district court would have been “amaz-
ingly prescient” to make such a finding because our Williams decision did
not issue until the following year. Contrary to Gomez’s assertion, the dis-
trict court explicitly found that “unlike the Seibert case, there is nothing
here where the officers try to get statements from him without Miranda
warnings and then somehow use it to obtain statements with Miranda
warnings.” The district court was also aware of the need to address delib-
erateness because the government referred to the Supreme Court’s deliber-
ateness rule from Seibert, 542 U.S. at 622 (Kennedy, J., concurring),
during the motions hearing.
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Gomez does not dispute that he voluntarily made his post-
warning statements. The district court properly denied
Gomez’s motion to suppress the statements.
III
Gomez argues that the district court committed constitu-
tional error by prohibiting him from cross-examining govern-
ment witnesses regarding official record-keeping. We review
de novo the question “[w]hether limitations on cross-
examination are so severe as to violate the Confrontation
Clause.” United States v. Shryock, 342 F.3d 948, 979 (9th Cir.
2003) (citing United States v. Adamson, 291 F.3d 606, 612
(9th Cir. 2002)).
[5] When a defendant is charged under 8 U.S.C. § 1326, a
district court may exclude irrelevant evidence of INS record-
keeping procedures. Rodriguez-Rodriguez, 393 F.3d at 856. A
defendant who does not assert that he applied for admission
to the United States may not elicit testimony about record-
keeping that suggests his application materials may have been
lost. See id.
[6] Gomez argues that he did not have to claim he applied
for admission in order to cross-examine government wit-
nesses on record-keeping procedures because the prosecution
“opened the door” on the issue. Gomez relies on Badousek’s
testimony that Gomez stated before his arrest that he had doc-
umentation of legal status at home. This argument ignores
Badousek’s further testimony that Gomez recanted the state-
ment after the records check indicated no legal status. The
district court provided ample opportunity for Gomez to make
a proffer that he applied for admission or received permission
to enter the United States. Gomez declined to make any prof-
fer or otherwise put his legal status in dispute.
[7] We conclude that the district court properly excluded
evidence of official record-keeping procedures as irrelevant.
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IV
Gomez argues that the district court improperly applied a
16-level enhancement under the United States Sentencing
Guidelines (“U.S.S.G.”) based on the determination that his
prior conviction for violating California Penal Code section
246 was a crime of violence under U.S.S.G. § 2L1.2. We
agree. We review de novo a district court’s determination that
a prior conviction is a “crime of violence” under the sentenc-
ing guidelines. Rodriguez-Rodriguez, 393 F.3d at 856.
A
[8] The relevant Sentencing Guidelines definition of a
“crime of violence” is a “federal, state, or local law that has
as an element the use, attempted use, or threatened use of
physical force against the person of another.” U.S.S.G.
§ 2L1.2, application note 1(B)(iii).
We first apply the categorical approach set forth in Taylor
v. United States, 495 U.S. 575 (1990), to determine whether
a prior conviction qualifies as a crime of violence under
U.S.S.G. § 2L1.2(b)(1)(A)(ii). United States v. Gonzalez-
Perez, 472 F.3d 1158, 1160 (2007). In doing so, we “look
only to the fact of conviction and the statutory definition of
the prior offense.” Taylor, 495 U.S. at 602.
[9] California Penal Code section 246 provides that a “per-
son who shall maliciously and willfully discharge a firearm at
an inhabited dwelling house, occupied building, occupied
motor vehicle, occupied aircraft, inhabited housecar, . . . or
inhabited camper . . . is guilty of a felony.” We determined
in United States v. Lopez-Torres that a violation of section
246 always involves a threatened use of physical force against
the person of another and thus categorically qualifies as a
crime of violence. See 443 F.3d 1182, 1184-85 (9th Cir.
2006). We must now decide whether our recent en banc opin-
ion in Fernandez-Ruiz v. Gonzales, 466 F.3d 1121 (9th Cir.
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2006) (en banc), abrogates Lopez-Torres such that section 246
is no longer a categorical crime of violence. We conclude that
Fernandez-Ruiz does abrogate Lopez-Torres.
[10] Fernandez-Ruiz limits categorical crimes of violence
to offenses committed through intentional use of force against
the person of another rather than reckless or grossly negligent
conduct. See 466 F.3d at 1132. Although Fernandez-Ruiz
addressed a “crime of violence” under 18 U.S.C. § 16(a), the
relevant definitions under § 16(a) and U.S.S.G. § 2L1.2 are
identical.2 Compare 18 U.S.C. § 16(a) (crime of violence
includes “an offense that has as an element the use, attempted
use, or threatened use of physical force against the person . . .
of another”) with U.S.S.G. § 2L1.2, application note 1(B)(iii)
(crime of violence includes “any offense . . . that has as an
element the use, attempted use, or threatened use of physical
force against the person of another”). We conclude that the
holding in Fernandez-Ruiz applies to the relevant “crime of
violence” definition under § 2L1.2 of the sentencing guidelines.3
We next address whether California Penal Code section
246 is a categorical crime of violence in light of Fernandez-
Ruiz. The language of section 246 does not expressly include
2The government argues that the definitions are different, but the cases
it cites involved enumerated crimes in the “crime of violence” definition
under § 2L1.2 that are not relevant here. See, e.g., United States v. Diaz-
Argueta, 447 F.3d 1167, 1170 (9th Cir. 2006) (rejecting argument that
only aggravated felonies qualify as crimes of violence); Valencia v. Gon-
zales, 439 F.3d 1046, 1053 (9th Cir. 2006) (noting reference to statutory
rape in § 2L1.2 commentary).
3The government argues for the opposite conclusion, relying on our
decisions in Lopez-Torres and United States v. Cortez-Arias, 403 F.3d
1111 (9th Cir. 2005). We reject this argument. Those cases preceded the
controlling en banc decision in Fernandez-Ruiz and did not address the
intent element of section 246. See Miller v. Gammie, 335 F.3d 889, 899-
900 (9th Cir. 2003) (en banc) (panel may depart from circuit precedent
when intervening higher authority has “undercut the theory or reasoning
underlying the prior circuit precedent in such a way that the cases are
clearly irreconcilable”).
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reckless conduct, but we also consider the interpretation of
statutory language in judicial opinions to determine categori-
cal reach. See Ortega-Mendez v. Gonzales, 450 F.3d 1010,
1016 (9th Cir. 2006).
[11] California courts characterize section 246 as a general
intent crime. See People v. Overman, 24 Cal. Rptr. 3d 798,
806 (Cal. Ct. App. 2005). A violation includes discharging a
firearm “in such close proximity to the target that [a defen-
dant] shows a conscious indifference to the probable conse-
quence that one or more [projectiles] will strike the target.”
Id. at 805. The “conscious indifference” intent element is
equivalent to recklessness. See Fernandez-Ruiz, 466 F.3d at
1130 (recklessness is awareness and conscious disregard of
risk of possible injury); People v. Chavira, 83 Cal. Rptr. 851,
855 (Cal. Ct. App. 1970) (“reckless disregard of probable
consequences” is sufficient intent to constitute violation of
section 246). The reckless act needs only be directed toward
the dwelling or building; “it is not strictly necessary . . . that
defendant’s acts demonstrate a conscious disregard for the life
and safety of others.” In re Daniel R., 24 Cal. Rptr. 2d 414,
418 (Cal. Ct. App. 1993). These state precedents demonstrate
that a violation of section 246 may result from purely reckless
conduct and does not categorically constitute a crime of vio-
lence.
B
[12] When an offense is not a categorical crime of violence,
the sentencing court applies the “modified categorical
approach” and “examine[s] the record for ‘documentation or
judicially noticeable facts that clearly establish that the con-
viction is a predicate conviction for enhancement purposes.’ ”
United States v. Corona-Sanchez, 291 F.3d 1201, 1211 (9th
Cir. 2002) (en banc) (quoting United States v. Rivera-
Sanchez, 247 F.3d 905, 908 (9th Cir. 2001)), superseded on
other grounds by U.S.S.G. § 2L1.2, cmt. n.4 (2002). Where
the prior conviction was based on a guilty plea, the sentencing
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court’s review is limited “to those documents ‘made or used
in adjudicating guilt’ such as ‘the terms of the charging docu-
ment, the terms of a plea agreement or [the] transcript of [the]
colloquy between the judge and defendant in which the fac-
tual basis for the plea was confirmed by the defendant, or to
some comparable judicial record of this information.’ ”
United States v. Martinez-Martinez, 468 F.3d 604, 606-07
(9th Cir. 2006) (quoting Shepard v. United States, 544 U.S.
13, 20, 26 (2005)).
[13] Gomez argues that the district court erred in relying
only on the abstract of judgment in determining that his prior
offense was a crime of violence under the modified categori-
cal approach. Although Gomez is correct, see United States v.
Navidad-Marcos, 367 F.3d 903, 908-09 (9th Cir. 2004), the
district court did not have the benefit of our Fernandez-Ruiz
decision and did not conduct a complete modified categorical
analysis. We remand for resentencing, particularly for the dis-
trict court to determine under the modified categorical
approach—consistent with Shepard, 544 U.S. at 20, 26—
whether Gomez had the requisite intent when he committed
his prior offense.
V
Gomez contends that the sentence imposed by the district
court violated the Supreme Court’s decision in Apprendi
because the sentence was based on a factual finding that
Gomez was removed subsequent to a conviction for an aggra-
vated felony. This finding subjected Gomez to an increased
maximum sentence of 20 years. See 8 U.S.C. § 1326(b)(2).
Gomez argues that the date of his removal must be admitted
by him or proved to a jury. See Apprendi v. New Jersey, 530
U.S. 466, 490 (2000).
[14] A district court may enhance a sentence under
§ 1326(b) based on a prior conviction even if the fact of con-
viction was not charged in the indictment, submitted to a jury
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or proved beyond a reasonable doubt. See Almendarez-Torres
v. United States, 523 U.S. 224, 247 (1998). Our precedent
precludes Gomez’s argument that recent Supreme Court deci-
sions have overruled Almendarez-Torres. See United States v.
Covian-Sandoval, 462 F.3d 1090, 1096-97 (9th Cir. 2006)
(citing Ninth Circuit cases that rejected same argument).
Gomez does not dispute that the fact of his removal in 1996
was proved to a jury. The district court permissibly found the
fact of a prior conviction to that removal. See United States
v. Martinez-Rodriguez, 472 F.3d 1087, 1094 (9th Cir. 2007)
(“The district court did not need to determine the date of Mar-
tinez’s deportation because the jury necessarily found that
Martinez was deported after his prior convictions.”); cf.
Covian-Sandoval, 462 F.3d at 1097-98 (district court imper-
missibly found fact of second, subsequent removal because
defendant admitted only first, earlier removal).
REVERSED in part, AFFIRMED in part, and
REMANDED for resentencing.
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