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November 1, 2016
  United States v. Diaz - Ninth Circuit
Headline: In a case of first impression, Ninth Circuit panel concludes that California's Proposition 47, which allows certain felony convictions to be reclassified as misdemeanor convictions, does not undermine a prior conviction's felony-status for purposes of 21 U.S.C. § 841.

Areas of Law: Criminal Law

Issues Presented: Whether a criminal defendant, previously convicted and sentenced in accordance with 21 U.S.C. § 841, is eligible to have his federal sentence reduced pursuant to California's Proposition 47, which permits certain state law felony convictions to be reclassified as misdemeanor convictions.

Brief Summary:
The named defendant and appellant, Jesse Vasquez ("Vasquez"), was convicted of his third drug trafficking related felony in 2009 and was sentenced in 2010 to life in prison, in accordance with sentencing guidelines of The Controlled Substance Act, 21 U.S.C. § 841, which mandates a sentence of life imprisonment because of Vasquez's "prior [California] convictions for a felony drug offense."

In 2014, California voters passed and enacted Proposition 47, "The Safe Neighborhoods and Schools Act," codified at Cal. Penal Code § 1170.18. Among other things, Proposition 47 reduced future convictions under Cal. Health & Safety Code § 11350(a) from a felony to a misdemeanor. Additionally, Proposition 47 permitted previously convicted felons the opportunity to petition the court for a "recall of sentence," which, if granted, would reclassify existing felony convictions as misdemeanor convictions. In 2015 Vasquez petitioned the court and was granted a reclassification of a 1996 felony conviction under § 11350(a) to a misdemeanor conviction.

Upon reclassification, Vasquez filed this appeal to challenge his sentence of life in prison, arguing that he is no longer convicted of three drug related felonies because his 1996 conviction no longer counts for purposes of § 841. The Ninth Circuit panel disagreed and affirmed his original sentence of life in prison on grounds that reclassification of a felony conviction to a misdemeanor conviction pursuant to Proposition 47 did not change or affect prior sentencing enhancements mandated by § 841.

Significance: The Ninth Circuit panel concluded that California's Proposition 47 does not apply retroactively to undermine a prior conviction's felony status for purposes of sentencing enhancements under 21 U.S.C. § 841.

Extended Summary:
Jesse Vasquez ("Vasquez") was a mid-level leader in the Florencia Trece gang who was convicted of drug-related crimes for his part in the gang's drug trafficking operations. In 2009, the district court sentenced Vasquez to life imprisonment due to Vasquez's two prior California felony convictions, one of which was under Cal. Health & Safety Code § 11350(a). Due to Vasquez's two prior California felony convictions, Vasquez qualified for a mandatory sentence enhancement pursuant to 21 U.S.C. § 841.

Section 841 imposes a mandatory life sentence if a defendant "commits [a violation of § 841] after two or more prior convictions for a felony drug offense have become final. 21 U.S.C. § 841(b)(1)(A). A "felony drug offense" is "an offense that is punishable by imprisonment for more than one year under any law of the United States or of a State or foreign country." 21 U.S.C. § 802(44).

Four years after Vasquez received his life sentence, California passed and enacted Proposition 47, The Safe Neighborhoods and Schools Act, codified at Cal. Penal Code § 1170.18, which, inter alia, reduced future convictions under § 11350(a) from a felony to a misdemeanor. The statute allows certain felony convictions to be reclassified as misdemeanor convictions and Cal. Penal Code § 1170.18(b) provides that "[a]ny felony conviction that is recalled and resentenced . . . or designated as a misdemeanor . . . shall be considered a misdemeanor for all purposes." Cal. Penal Code § 1170.18(n) also provides that "[n]othing in this and related sections is intended to diminish or abrogate the finality of judgments in any case not falling within the purview of this act."

Upon the enactment of § 1170.18, Vasquez petitioned for and was granted the reclassification of his 1996 conviction under § 11350(a) from a felony conviction to a misdemeanor conviction. Upon receiving this reclassification, Vasquez appealed his 2010 sentence of life imprisonment arguing that because he successfully petitioned in 2014 to have his 1996 conviction re-designated as a misdemeanor, that conviction no longer counts as a prior felony conviction for purposes of § 841..

The Ninth Circuit panel disagreed with Vasquez and held that § 1170.18 did not alter the prior felony conviction status as it pertains to § 841. The panel noted that federal law, not state law, controlled the interpretation of federal law (see United States v. Norbury, 492 F.3d 1012, 1014 (9th Cir. 2007) and that "[a]lthough the [state's] statute [can] determine the status of the conviction for purposes of state law, it [can]not rewrite history for the purposes of the administration of the federal criminal law or the interpretation of federal criminal statutes." United States v. Bergeman, 592 F.2d 533, 536 (9th Cir. 1979); United States v. Cisneros, 112 F.3d 1272, 1280 (5th Cir. 1997) (quoting United States v. Morales, 854 F.2d 65, 68 (5th Cir. 1988). Following this precedent, the Ninth Circuit panel held that federal law, not California law, determines the effect of California's reclassification of Vasquez's federal sentence enhancement pursuant to § 841.

The panel relied primarily on the Supreme Court's ruling in McNeill v. United States, 563 U.S. 816 (2011). In McNeill, the defendant had been convicted in the early 1990's of violating North Carolina drug laws, for which the maximum sentence was at least ten years. In 1994, North Carolina reduced the maximum sentence such that the North Carolina convictions no longer qualified for the sentencing enhancement prescribed under 18 U.S.C. §§ 924(e)(1) and 924(e)(2)(A)(ii). McNeil, 563 U.S. at 818. McNeill argued that because North Carolina had changed its laws, his prior conviction did not qualify as a "serious drug offense," but the Court disagreed and held that North Carolina's changes to McNeill's state conviction had no effect on his federal sentence. Id. at 819. The Court explained that the Armed Career Criminal Act asked a "backward-looking question" and that the "only way to answer [this question] is to consult the law that applied at the time of that conviction" because this "avoids the absurd results that would follow from consulting current state law to define a previous offense." Id. at 819-20.

The Ninth Circuit panel acknowledged that the issue of whether a state that permits reclassifying particular felony convictions as misdemeanors requires a federal court to revisit a federal sentence enhancement imposed under § 841 was a matter of first impression. However, the panel analogized Vasquez's appeal to cases that addressed whether dismissing or expunging a predicate state conviction invalidates a federal enhancement under § 841. Norbury, 492 F.3d 1012, 1015 (holding that a state's later dismissal or expungement of a predicate state conviction had no bearing on whether § 841's requirements were met). Accordingly, the Ninth Circuit panel reasoned that other than the circumstance "where the dismissal or expungement alters the legality of the original state conviction - such as where there was a trial error or it appears the defendant was actually innocent of the underlying crime," a federal enhancement "does not depend upon the mechanics of state post-conviction procedures, but rather involves the [state] conviction's underlying lawfulness."

The panel determined that, like the provision at issue in McNeill, § 841 is also a "backward-looking," inquiry which only requires that the defendant have committed his federal crime "after two or more prior convictions for a felony drug offense have become final." § 841(b)(1)(A). Thus, it is immaterial whether a state makes a change to a state conviction after it has become final because it "does not alter the historical fact of the [prior state] conviction" becoming final, which is what § 841 requires. United States v. Dyke, 718 F.3d 1282, 1293 (10th Cir. 2013), cert. denied, 134 S.Ct. 365 (2013).

In Vasquez's case, there was no doubt that Vasquez committed a federal drug offense after having been convicted of two prior drug felonies and that those prior convictions had become final. These convictions were felony convictions at the time of his final sentence-enhancement qualifying conviction and thus any change to the state law after the fact has no bearing on the felony-status for purposes of § 841.

The Ninth Circuit panel therefore held that (1) § 1170.18 did not undermine a prior conviction's felony-status for purposes of § 841 and (2) California's later actions cannot change the fact that Vasquez committed his federal offense after 'two or more convictions for a felony drug offense [had] become final" and affirmed the district court.

To read the full opinion, please visit:
https://cdn.ca9.uscourts.gov/datastore/opinions/2016/09/21/10-50029.pdf

Panel: Jerome Farris, Jay S. Bybee, and N. Randy Smith, Circuit Judges.

Argument Date: November 2, 2015

Date of Issued Opinion: September 21, 2016

Docket Number: 10-50029; 10-50052; 10-50058; 10-50059; 10-50062; 10-50064; 10-50072; 10-50076; 10-50113; 10-50115

Decided: Affirmed the district court's sentencing of Jesse Vasquez, asserting that (1) § 1170.18 did not undermine a prior conviction's felony-status for purposes of § 841 and (2) California's later actions cannot change the fact that Vasquez committed his federal offense after 'two or more convictions for a felony drug offense [had] become final.".

Case Alert Author: Ryan Schley

Counsel:
Karen Landau (argued), Oakland, California, for Defendant-Appellant Manuel Hernandez.

Ethan Balogh (argued) and Jay Nelson, Coleman, Balogh & Scott LLP, San Francisco, California, for Defendant-Appellant Jesse Vasquez.

Kenneth Reed, Santa Ana, California, for Defendant-Appellant Gilbert Oliva Diaz.

Verna Wefald, Pasadena, California, for Defendant-Appellant Arturo Cruz.

Wayne Young, Santa Monica, California, for Defendant-Appellant Alberto Hernandez.

David Phillips, Riverside, California, for Defendant-Appellant Noe Gonzalez.

Holly Sullivan, San Diego, California, for Defendant-Appellant Francisco Flores.

Michael Khouri, Khouri Law Firm, Irvine, California, for Defendant-Appellant Luis A. Aguilar.

Robinson Harley, Santa Ana, California, for Defendant-Appellant Cesar Dela Cruz.

Elana Shavit Artson (argued), Allison Westfahl Kong, and Robert Dugdale, Assistant United States Attorneys; Stephanie Yonekura, Acting United States Attorney; United States Attorney's Office, Los Angeles, California, For Plaintiff-Appellee.

Donald M. Falk, Mayer Brown LLP, Palo Alto, California; Travis Crum, Mayer Brown LLP, Washington, D.C.; Michael Romano, Stanford Law School Justice Advocacy Project, Stanford, California; David M. Porter, Co-Chair, NACDL Amicus Curiae Committee, Sacramento, California; for Amici Curie National Association of Criminal Defense Lawyers and Stanford Law School Justice Advocacy Project.

Author of Opinion: Judge Jay S. Bybee

Circuit: Ninth Circuit panel

Case Alert Supervisor: Professor Glenn Koppel

    Posted By: Glenn Koppel @ 11/01/2016 05:29 PM     9th Circuit  

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