United States v. 2007-07-10 | 06-50169 | USA VSNELLENBERGER | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 UNITED STATES OF AMERICA, No. 06-50169
Plaintiff-Appellee, D.C. No.
v. CR-05-00064-AHS
MICHAEL LEE SNELLENBERGER, aka ORDER 
Michael Lee Cutter, Michael Lee AMENDING
Davidson, Robert Eugene Frehly, OPINION AND
Cutter Snellenberger, “Cutter”, AMENDED
Defendant-Appellant. OPINION

Appeal from the United States District Court
for the Central District of California
Alicemarie H. Stotler, District Judge, Presiding
Argued and Submission Deferred February 6, 2007
Submitted February 13, 2007
Pasadena, California
Filed April 3, 2007
Amended July 10, 2007
Before: Warren J. Ferguson, Eugene E. Siler, Jr.,* and
Michael Daly Hawkins, Circuit Judges.
Opinion by Judge Ferguson
*The Honorable Eugene E. Siler, Jr., Senior United States Circuit Judge
for the Sixth Circuit, sitting by designation.
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COUNSEL
Gail Ivens, Deputy Federal Public Defender, Los Angeles,
California, for the defendant-appellant.
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Anne C. Gannon, Assistant United States Attorney, Santa
Ana, California, for the plaintiff-appellee.
ORDER
The Opinion filed on April 3, 2007, slip op. page 3839, and
appearing at 480 F.3d 1187 (9th Cir. 2007), is amended, and
the Concurrence by Judge Hawkins, filed together with the
Opinion, is withdrawn.
The amendments to the Opinion are as follows:
At slip op. page 3842, in the first paragraph, the second and
third sentences are deleted and the following is substituted in
their place:
Having previously noted that a minute order is “not
a judicial record that can be relied upon” to establish
the nature of a prior conviction, United States v.
Diaz-Argueta, 447 F.3d 1167, 1169 (9th Cir. 2006),
we now explicitly so hold.
At slip op. page 3847, line 9: footnote “5” is deleted.
At slip op. page 3848, in the first indented paragraph, line
1: “In sum, any inquiry beyond” is substituted for “Any
inquiry beyond”.
At slip op. page 3848, in the first indented paragraph, line
4: “Shepard, 544 U.S. at 23 n.4” is substituted for “Id. at 23
n.4”.
At slip op. page 3848, between the first incomplete para-
graph (ending “For this same reason, a minute order cannot
establish the factual elements underlying a plea to a prior
offense.”) and the first indented paragraph (beginning “In
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sum, any inquiry beyond the language of the convicting stat-
ute . . . .”), the following is inserted:
The government argues that our holding means
this court will treat minute orders differently from
abstracts of judgments, despite the documents’ simi-
larities. The government relies on a line of pre-
Shepard cases, such as United States v. Velasco-
Medina, 305 F.3d 839, 852 (9th Cir. 2002); United
States v. Corona-Sanchez, 291 F.3d 1201, 1211 (9th
Cir. 2002) (en banc); and United States v. Rodriguez-
Rodriguez, 393 F.3d 849, 857 (9th Cir. 2005). Our
post-Shepard cases, however, have rejected the use
of abstracts of judgments in conducting the modified
categorical approach. See United States v. Narvaez-
Gomez, ___ F.3d ___, 2007 WL 1614778, *5 (9th
Cir. 2007) (citing United States v. Navidad-Marcos,
367 F.3d 903, 908-09 (9th Cir. 2004)); see also Ruiz-
Vidal v. Gonzales, 473 F.3d 1072, 1078-79 (9th Cir.
2007); Martinez-Perez v. Gonzales, 417 F.3d 1022,
1029 (9th Cir. 2005).5
With these amendments, the petition for panel rehearing is
DENIED. No further petitions for panel rehearing may be
filed.
5Nothing in our holding implies that either minute orders or abstracts of
judgments are “categorically unreliable.” United States v. Sandoval-
Sandoval, ___ F.3d ___, 2007 WL 1490353, *1 (9th Cir. 2007). We recog-
nize, for example, that an abstract of judgment may be used to prove the
“fact of conviction” under Taylor. 495 U.S. at 601; see United States v.
Valle-Montalbo, 474 F.3d 1197, 1201-02 (9th Cir. 2007). Nonetheless,
neither abstracts of judgments nor minute orders may be considered under
the modified categorical approach defined in Shepard. 544 U.S. at 26.
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OPINION
FERGUSON, Circuit Judge:
This case presents the question of whether a minute order,
coupled with a charging document, may be sufficient under
Shepard v. United States, 544 U.S. 13 (2005), to establish a
prior crime of violence for purposes of sentence enhancement.
Having previously noted that a minute order is “not a judicial
record that can be relied upon” to establish the nature of a
prior conviction, United States v. Diaz-Argueta, 447 F.3d
1167, 1169 (9th Cir. 2006), we now explicitly so hold.
FACTUAL AND PROCEDURAL BACKGROUND
In March 2005, Michael Lee Snellenberger
(“Snellenberger”) was indicted for unarmed bank robbery
pursuant to 18 U.S.C. § 2113(a). He pled guilty to the charge
in October of that year. At sentencing, the government
requested a sentence enhancement under the United States
Sentencing Guidelines Manual (“Guidelines” or “U.S.S.G.”),
based on Snellenberger’s status as a “career offender.”
U.S.S.G. §§ 4B1.1, 4B1.2 (2002). In 1991, Snellenberger had
pled nolo contendere to burglary under section 459 of the Cal-
ifornia Penal Code (“Cal. Penal Code § 459” or “§ 459”). The
government asserted that this prior crime qualified as one of
violence under the Guidelines.
The District Court agreed and determined that, in combina-
tion with another prior offense,1 the § 459 conviction qualified
Snellenberger as a career offender. This finding raised his
guidelines offense level from 19 to 29 and increased the advi-
sory guideline range for his sentence from 63-78 months to
1Snellenberger does not contest that he has a history of one prior offense
that falls under U.S.S.G. §§ 4B1.1, 4B1.2. He challenges only the District
Court’s finding that his 1991 conviction should count as a second prior
felony.
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151-188 months. The court imposed a sentence of 151 months
imprisonment, a special assessment of $100, and a three year
term of supervised release with various conditions. Snellen-
berger has appealed the sentencing court’s reliance on the
career offender provisions of U.S.S.G. § 4B1.2.
STANDARD OF REVIEW
We review de novo the lower court’s “interpretation and
application” of the Sentencing Guidelines. United States v.
Franklin, 235 F.3d 1165, 1168 (9th Cir. 2000); see United
States v. Cantrell, 433 F.3d 1269, 1279 (9th Cir. 2006) (no
change after United States v. Booker, 543 U.S. 220 (2005)).
We also review de novo the determination of the defendant’s
career offender status. United States v. Kelly, 422 F.3d 889,
891-92 (9th Cir. 2005).
DISCUSSION
[1] A court may deem a defendant a career offender eligible
for a sentence enhancement under the Guidelines if the defen-
dant has “at least two prior felony convictions of either a
crime of violence or a controlled substance offense,” and was
at least eighteen years old at the time he or she committed a
third felony that was also a “crime of violence or a controlled
substance offense.” U.S.S.G. § 4B1.1(a), (b). The Guidelines
define a “crime of violence” as “any offense under federal or
state law, punishable by imprisonment for a term exceeding
one year, that [ ] has as an element the use, attempted use, or
threatened use of physical force against the person of another,
or [ ] is burglary of a dwelling . . .” or another offense enu-
merated or described in this provision. U.S.S.G. § 4B1.2(a)
(emphasis added). The dispute in this case focuses on whether
Snellenberger’s 1991 burglary conviction qualifies as bur-
glary of a dwelling.2
2On appeal, Snellenberger does not contest the categorization of the
instant offense as a crime of violence.
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[2] Burglary under Cal. Penal Code § 459 is defined more
broadly than burglary of a dwelling. The California statute
includes, inter alia, burglary of a shop, warehouse, barn, sta-
ble, train car, aircraft, mine, or underground portion of a
mine. Cal. Penal Code § 459.3 Therefore, Snellenberger’s
§ 459 conviction does not necessarily imply that he pled to
burglary of a dwelling, and it cannot provide the basis for
concluding that he is a career offender qualified for a sentence
enhancement. See, e.g., Franklin, 235 F.3d at 1170 (“We have
previously and unequivocally held that California Penal Code
section 459 is far too sweeping to satisfy the Taylor definition
of generic burglary.”) (referring to definition even broader
than “crime of violence” under U.S.S.G. § 4B1.2(a)).
In Taylor v. United States, 495 U.S. 575, 600 (1990) (inter-
preting 18 U.S.C. § 924(e) but relying on broader rationale),
the Supreme Court held that sentencing courts must generally
assess prior convictions using a “formal categorical approach,
looking only to the statutory definitions of the prior offenses,
and not to the particular facts underlying those convictions.”
See also United States v. Becker, 919 F.2d 568, 570 (9th Cir.
1990) (applying Taylor rule concerning Armed Career Crimi-
nal Act to section 4B1.1 of the Sentencing Guidelines). The
Court explained that a fact-based approach would contravene
Congressional intent and create “practical difficulties and
potential unfairness,” as it could lead to mini-trials concerning
the factual bases for prior convictions. Taylor, 495 U.S. at
3The complete statutory definition of burglary is as follows:
Every person who enters any house, room, apartment, tenement,
shop, warehouse, store, mill, barn, stable, outhouse or other
building, tent, vessel, . . . floating home . . . railroad car, locked
or sealed cargo container . . . trailer coach . . . any house car . . .
inhabited camper . . . vehicle as defined by the Vehicle Code,
when the doors are locked, aircraft . . . or mine or any under-
ground portion thereof, with intent to commit grand or petit lar-
ceny or any felony is guilty of burglary. . . .
Cal. Penal Code § 459.
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601. Taylor did provide an exception to the categorical rule
for “a narrow range of cases where . . . the charging paper and
jury instructions actually required the jury to find all the ele-
ments of [the narrower, qualifying offense] in order to con-
vict.” Id. at 602; see Shepard, 544 U.S. at 17 (describing
Taylor exception). Where the jury instructions in combination
with the charging document demonstrated that the jury neces-
sarily had to find all the factual elements of the qualifying
offense, the sentencing court could “go beyond the mere fact
of conviction” to reach the logical conclusion that the defen-
dant had committed the qualifying offense. Taylor, 495 U.S.
at 602.
[3] In Shepard, 544 U.S. at 19, the Supreme Court applied
the rationale of Taylor to a prior conviction resulting from a
plea. Shepard held that in pleaded cases, the “closest analog”
to jury instructions is “the statement of the factual basis for
the charge, shown by a transcript of plea colloquy or by writ-
ten plea agreement presented to the court, or by a record of
comparable findings of fact adopted by the defendant upon
entering the plea.” Id. at 20 (internal citation omitted). The
Court ruled that a sentencing court’s inquiry into the facts of
a prior crime cannot include consideration of complaint appli-
cations or police reports, and instead “is generally limited to
examining the statutory definition, charging document, writ-
ten plea agreement, transcript of plea colloquy, and any
explicit factual finding by the trial judge to which the defen-
dant assented.” Id. at 16.
In this case, Snellenberger maintains that the government
has provided insufficient evidence to establish that his 1991
burglary plea under Cal. Penal Code § 459 involved a crime
of violence. The government submitted at sentencing copies
of two documents from the convicting court: an information
and a minute order. The information lists factual allegations
and specifically charges Snellenberger with, inter alia, first
degree residential burglary in violation of Cal. Penal Code
§ 459. Under California law, burglary in the first degree nec-
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essarily encompasses all factual elements of “burglary of a
dwelling,” so if Snellenberger had pled guilty to this charge,
he would necessarily have admitted to burglary of a dwelling.
See Cal. Penal Code §§ 450, 460(a), (b). However, like any
charging document, the information is insufficient alone to
prove the facts to which Snellenberger admitted. See Ruiz-
Vidal v. Gonzales, 473 F.3d 1072, 1078 (9th Cir. 2007);
United States v. Parker, 5 F.3d 1322, 1327 (9th Cir. 1993).
The government therefore relies heavily on the minute order,
which states that Snellenberger entered a nolo contendere plea
to “459 Penal Code (first degree).”
[4] Snellenberger maintains that the sentencing court
should not have considered the minute order. We agree. To
establish that a defendant committed a prior crime of vio-
lence, the government must provide the sentencing court with
“the terms of a plea agreement or transcript of [a] colloquy
between [the] judge and defendant in which the factual basis
for the plea was confirmed by the defendant, or [ ] some com-
parable judicial record of this information.” Shepard, 544
U.S. at 26. As we previously recognized in Diaz-Argueta, 447
F.3d at 1169, a minute order is not a comparable judicial
record under Shepard.4
[5] A minute order is not sufficient because it does not con-
tain “the factual basis for the plea [as] confirmed by the
defendant.” Shepard, 544 U.S. at 26. On the contrary, it con-
tains no facts and no indication that it has even been shown
to the defendant. The one-page form simply provides a tiny
space in which to list the statute under which the defendant
has been convicted. Such a document cannot be considered
4We decided in Diaz-Argueta, 447 F.3d at 1169, that, under Shepard,
a minute order of the state court was “not a judicial record that c[ould] be
relied upon to prove” the felony status of a prior conviction under
U.S.S.G. § 2L1.2(b)(1)(A)(ii), but that Diaz-Argueta’s particular prior
offense was a felony as a matter of statutory interpretation. Ultimately, we
remanded the case because the sentencing court had failed to consider any
of the factors of 18 U.S.C. § 3553(a). Id. at 1170, 1171.
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“comparable” to “a plea agreement or transcript of [a] collo-
quy between the judge and the defendant.” Id.
[6] The government asserts that California evidentiary law
treats minute orders as accurate in the absence of substantial
evidence to the contrary, but this argument misses the point.
See Shepard, 544 U.S. at 22-23 (rejecting argument that docu-
ments could be considered reliable if uncontradicted). The
question is not whether the documents are admissible under
general rules of evidence, but whether they are adequate to
meet the government’s evidentiary burden of clearly and
unequivocally establishing the facts underlying a prior con-
viction so as to justify the enhancement of a criminal sen-
tence. As the Supreme Court noted when ruling that
complaints and police reports could not be considered, the
defendant was never asked if the information contained in the
reports was true or accurately reflected his plea. Id. at 18. For
this same reason, a minute order cannot establish the factual
elements underlying a plea to a prior offense.
The government argues that our holding means this court
will treat minute orders differently from abstracts of judg-
ments, despite the documents’ similarities. The government
relies on a line of pre-Shepard cases, such as United States v.
Velasco-Medina, 305 F.3d 839, 852 (9th Cir. 2002); United
States v. Corona-Sanchez, 291 F.3d 1201, 1211 (9th Cir.
2002) (en banc); and United States v. Rodriguez-Rodriguez,
393 F.3d 849, 857 (9th Cir. 2005). Our post-Shepard cases,
however, have rejected the use of abstracts of judgments in
conducting the modified categorical approach. See United
States v. Narvaez-Gomez, ___ F.3d ___, 2007 WL 1614778,
*5 (9th Cir. 2007) (citing United States v. Navidad-Marcos,
367 F.3d 903, 908-09 (9th Cir. 2004)); see also Ruiz-Vidal v.
Gonzales, 473 F.3d 1072, 1078-79 (9th Cir. 2007); Martinez-
Perez v. Gonzales, 417 F.3d 1022, 1029 (9th Cir. 2005).5
5Nothing in our holding implies that either minute orders or abstracts of
judgments are “categorically unreliable.” United States v. Sandoval-
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[7] In sum, any inquiry beyond the language of the convict-
ing statute “must be narrowly construed” to implement Con-
gressional intent and avoid endless evidentiary hearings
concerning prior offenses. Shepard, 544 U.S. at 23 n.4. A sen-
tence enhancement based on facts underlying a prior convic-
tion must rely on a judicial record of those facts. Id. at 26. The
government has submitted no such record regarding Snellen-
berger’s § 459 conviction, and the enhancement of his sen-
tence was in error.
CONCLUSION
The District Court should not have considered a minute
order in ruling on whether Snellenberger’s conviction under
Cal. Penal Code § 459 involved burglary of a dwelling and
therefore a crime of violence. The government has failed to
meet its burden of demonstrating that Snellenberger qualified
as a career offender, eligible for a sentence enhancement
under the Guidelines. For the foregoing reasons, we
VACATE the decision below and REMAND for a new sen-
tencing hearing.
Sandoval, ___ F.3d ___, 2007 WL 1490353, *1 (9th Cir. 2007). We recog-
nize, for example, that an abstract of judgment may be used to prove the
“fact of conviction” under Taylor. 495 U.S. at 601; see United States v.
Valle-Montalbo, 474 F.3d 1197, 1201-02 (9th Cir. 2007). Nonetheless,
neither abstracts of judgments nor minute orders may be considered under
the modified categorical approach defined in Shepard. 544 U.S. at 26.
8268 UNITED STATES v. SNELLENBERGER

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