USA v. Diaz

Filing

Filed order and amended opinion (JEROME FARRIS, JAY S. BYBEE and N. RANDY SMITH).The court s opinion filed April 20, 2016, appearing at 821 F.3d 1051(9th Cir. 2016), is hereby amended. An amended opinion is filed herewith. With this amended opinion, the panel has voted to deny the petitions for panel rehearing. The full court has been advised of the petitions for rehearing en banc, and no judge has requested a vote on whether to rehear the matter en banc. Fed. R. App. P. 35. The petitions for rehearing and the petitions for rehearing en banc, filed June 2, 2016, June 3, 2016 and July 1, 2016 are DENIED. No subsequent petitions for rehearing or rehearing en banc may be filed. [10130959] [10-50029, 10-50052, 10-50058, 10-50059, 10-50062, 10-50064, 10-50072, 10-50076, 10-50113, 10-50115]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.

No. 10-50029
D.C. No.
8:07-cr-00202DOC-2

GILBERT OLIVA DIAZ, AKA
Chaparro, AKA Gilberto Oliva,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.

No. 10-50052
D.C. No.
8:07-cr-00202DOC-4

ARTURO CRUZ, AKA Art,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ALBERTO HERNANDEZ, AKA
Cruiser, AKA Sugar,
Defendant-Appellant.

No. 10-50058
D.C. No.
8:07-cr-00202DOC-7

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2

UNITED STATES V. DIAZ

UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.

No. 10-50059
D.C. No.
8:07-cr-00202DOC-5

JOSE GONZALEZ, AKA Black, AKA
Negro,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.

No. 10-50062
D.C. No.
8:07-cr-00202DOC-6

NOE GONZALEZ, AKA Lil Black,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
MANUEL HERNANDEZ, AKA Frog,
Defendant-Appellant.

No. 10-50064
D.C. No.
8:07-cr-00202DOC-9

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UNITED STATES V. DIAZ
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.

3
No. 10-50072
D.C. No.
8:07-cr-00202DOC-1

JESSE VASQUEZ, AKA Pelon,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.

No. 10-50076
D.C. No.
8:07-cr-00202DOC-8

FRANCISCO FLORES, AKA Lil Frank,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
LUIS A. AGUILAR, AKA Woody,
Defendant-Appellant.

No. 10-50113
D.C. No.
8:07-cr-00202DOC-23

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4

UNITED STATES V. DIAZ

UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.

No. 10-50115
D.C. No.
8:07-cr-00202DOC-16

CESAR DELA CRUZ, AKA Thumper,
Defendant-Appellant.
ORDER AND
AMENDED
OPINION

Appeal from the United States District Court
for the Central District of California
David O. Carter, District Judge, Presiding
Argued and Submitted November 2, 2015
Pasadena, California
Filed April 20, 2016
Amended September 21, 2016
Before: Jerome Farris, Jay S. Bybee,
and N. Randy Smith, Circuit Judges.
Order;
Opinion by Judge Bybee

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UNITED STATES V. DIAZ

5

SUMMARY*

Criminal Law
The panel issued an amended opinion affirming a
sentence, denied a petition for panel rehearing, and denied on
behalf of the court a petition for rehearing en banc, in a case
in which Jesse Vasquez received a sentence of life
imprisonment mandated under 21 U.S.C. § 841(b)(1)(A)
because of his two prior felony drug convictions.
Four years after his sentencing, California adopted
Proposition 47, which allowed California courts to reclassify
certain felony convictions as misdemeanors. Vasquez
successfully petitioned a California court to reclassify one
of his prior California felonies—on which his federal
enhancement was based—as a misdemeanor.
The panel held that Proposition 47 does not undermine a
prior conviction’s felony status for purposes of § 841, and
that California’s later actions cannot change the historical fact
that Vasquez committed his federal offense “after two or
more convictions for a felony drug offense [had] become
final.”
The panel addressed other issues in a concurrently-filed
memorandum disposition.

*

This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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UNITED STATES V. DIAZ
COUNSEL

Karen Landau (argued), Oakland, California, for DefendantAppellant Manuel Hernandez.
Ethan Balogh (argued) and Jay Nelson, Coleman, Balogh &
Scott LLP, San Francisco, California, for DefendantAppellant Jesse Vasquez.
Kenneth Reed, Santa Ana, California, for DefendantAppellant Gilbert Oliva Diaz.
Verna Wefald, Pasadena, California, for Defendant-Appellant
Arturo Cruz.
Wayne Young, Santa Monica, California, for DefendantAppellant Alberto Hernandez.
David Philips, Riverside, California, for Defendant-Appellant
Jose Gonzalez.
Thomas Wolfsen, Orange, California, for DefendantAppellant Noe Gonzalez.
Holly Sullivan, San Diego, California, for DefendantAppellant Francisco Flores.
Michael Khouri, Khouri Law Firm, Irvine, California, for
Defendant-Appellant Luis A. Aguilar.
Robison Harley, Santa Ana, California, for DefendantAppellant Cesar Dela Cruz.

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UNITED STATES V. DIAZ

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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 PlaintiffAppellee.
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 Curiae National Association of Criminal Defense
Lawyers and Stanford Law School Justice Advocacy Project.

ORDER
The court’s opinion filed April 20, 2016, appearing at
821 F.3d 1051(9th Cir. 2016), is hereby amended. An
amended opinion is filed herewith.
With this amended opinion, the panel has voted to deny
the petitions for panel rehearing.
The full court has been advised of the petitions for
rehearing en banc, and no judge has requested a vote on
whether to rehear the matter en banc. Fed. R. App. P. 35.
The petitions for rehearing and the petitions for rehearing
en banc, filed June 2, 2016, June 3, 2016 and July 1, 2016 are
DENIED. No subsequent petitions for rehearing or rehearing
en banc may be filed.

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UNITED STATES V. DIAZ
OPINION

BYBEE, Circuit Judge:
Jesse 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. The district
court sentenced Vasquez to life imprisonment because his
two prior California felonies qualified him for a mandatory
sentence enhancement under 21 U.S.C. § 841.
Four years after Vasquez’s sentencing, California adopted
Proposition 47, which allowed California courts to reclassify
certain felony convictions as misdemeanor convictions.
Vasquez successfully petitioned a California court to
reclassify one of his prior California felonies—on which his
federal enhancement was based—as a misdemeanor.
Vasquez now argues that his federal enhancement should be
invalidated because he no longer stands convicted of one of
the two prior felonies as § 841 requires.1
We hold that Proposition 47 does not change the
historical fact that Vasquez violated § 841 “after two or more
prior convictions for a felony drug offense [had] become
final.” 21 U.S.C. § 841(b)(1)(A). We therefore affirm.
I
In 2007, Vasquez was charged with multiple counts of
racketeering and drug related crimes. Shortly after, the
United States filed an information alleging that Vasquez
1

Other issues raised in this case are addressed in a memorandum
disposition filed concurrently with this opinion.

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qualified for a sentence enhancement under the Controlled
Substances Act, 21 U.S.C. § 841, because of his two prior
felony drug convictions—one of which was a 1996
conviction under California Health and Safety Code section
11350(a) for possession of a controlled substance. In 2009,
Vasquez was convicted. At sentencing in 2010, the district
court imposed life imprisonment, a sentence mandated under
21 U.S.C. § 841(b)(1)(A) because of Vasquez’s “prior
[California] convictions for a felony drug offense.”
In November 2014, California voters enacted Proposition
47, “the Safe Neighborhoods and Schools Act.” Cal. Penal
Code § 1170.18 (codifying Proposition 47); see People v.
Rivera, 183 Cal. Rptr. 3d 362, 363 (Ct. App. 2015). Among
other things, Proposition 47 reduced future convictions under
§ 11350(a) from a felony to a misdemeanor. Proposition 47
also permits previously-convicted defendants to petition the
court for a “recall of sentence,” which, if granted, would
effectively reclassify their qualifying felonies as
misdemeanors. See Cal. Penal Code § 1170.18(a). In
February 2015 Vasquez did just that: He successfully
petitioned the Los Angeles County Superior Court to recall
his 1996 felony conviction, and the court resentenced him to
a misdemeanor.2

2

Vasquez’s petition, and the Superior Court’s action, took place
between the time the district court rendered Vasquez’s sentence and his
appeal was heard by this court. Vasquez filed a supplemental brief on the
issue and asked the panel to consider it as part of his appeal. The
government responded on the merits, but also suggested that the panel
should remand this question because it was not raised below. Because this
issue has arisen while the appeal is pending, and because it is a legal
question which has been fully briefed, we may decide it here for the first
time on appeal. See United States v. Carlson, 900 F.2d 1346, 1349 (9th
Cir. 1990) (holding that we may review a new issue on appeal where it

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Proposition 47’s new statutory changes provide 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(k). However, the court need not recall a felony
sentence if it finds, in its discretion, that re-classifying the
defendant would pose an unreasonable danger to the
community. Cal. Penal Code § 1170.18(b). The statute 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.” Cal.
Penal Code § 1170.18(n).
II
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). Vasquez argues 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. We disagree. California’s actions—taken long after
Vasquez’s state conviction became “final”—have no bearing
on whether § 841’s requirements are satisfied.

arose because of a recent change in law or other “exceptional”
circumstance); Gates v. Deukmejian, 987 F.2d 1392, 1407–08 (9th Cir.
1992) (exercising discretion to address defendants’ argument based on
change in law during pendency of appeal). We have determined to
exercise our discretion and decide this question.

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A
Federal law, not state law, governs our interpretation of
federal statutes. See United States v. Norbury, 492 F.3d
1012, 1014 (9th Cir. 2007) (“Whether a defendant’s prior
state conviction was a ‘conviction’ [within the meaning of
§ 841] is a question of federal, not state, law.”); see also
Dickerson v. New Banner Inst., Inc., 460 U.S. 103, 111–12
(1983) (noting that consulting federal law to determine the
meaning of “convicted” “makes for desirable national
uniformity unaffected by varying state laws, procedures, and
definitions”), holding superseded by statute, as stated in
Logan v. United States, 128 S. Ct. 475, 479–80 (2007). As
we explained when analyzing a defendant’s “convicted felon
status” under the Omnibus Crime Control and Safe Streets
Act: “Although 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)
(quotation and citation omitted); see also United States v.
Cisneros, 112 F.3d 1272, 1280 (5th Cir. 1997) (“[W]e are not
bound by [state law’s] treatment of a felony conviction when
we apply the federal sentence-enhancement provisions.”
(quoting United States v. Morales, 854 F.2d 65, 68 (5th Cir.
1988)). We therefore apply federal law, not California law,
to determine the effect of California’s reclassification on
Vasquez’s federal sentence enhancement under § 841.
When a state grants post-conviction relief to a defendant
with respect to his state felony conviction, we do not
generally apply those changes retroactively for purposes of
determining whether a federal sentencing statute’s
requirements are met. See, e.g., Norbury, 492 F.3d at 1015;

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see also United States v. Salazar-Mojica, 634 F.3d 1070,
1072–74 (9th Cir. 2011) (holding in the context of U.S.
Sentencing Guidelines that a defendant had still “previously
been deported after being convicted of a felony,” even though
his felony was later reduced to a misdemeanor). The
Supreme Court’s decision in McNeill v. United States,
563 U.S. 816 (2011), illustrates why we avoid undoing
federal sentences after the fact. Under the Armed Career
Criminal Act, the sentencing court had to determine whether
the defendant had “three previous convictions . . . for a
violent felony or a serious drug offense,” “for which a
maximum term of imprisonment of ten years or more is
prescribed by law.” 18 U.S.C. §§ 924(e)(1), 924(e)(2)(A)(ii).
McNeill had been convicted in the early 1990’s of violating
North Carolina drug laws for which the maximum penalty
was at least ten years. McNeill, 563 U.S. at 818. However,
in 1994 North Carolina reduced the maximum sentence for
his offense; as of 1994, the state offense no longer qualified
for the federal enhancement. Id. McNeill argued that,
because the state had changed its laws, his prior conviction
did not qualify as a “serious drug offense.” Id. The Court
disagreed, holding that the state’s changes to McNeill’s state
conviction had no affect on his federal sentence. Id. at 819.
The Supreme Court explained that the ACCA asked a
“backward-looking question” and the “only way to answer
[this question] is to consult the law that applied at the time of
that conviction . . . [this] avoids the absurd results that would
follow from consulting current state law to define a previous
offense.” Id. at 819–20 (emphasis added).
Proposition 47 presents a slight variation on what effect,
if any, we must give to subsequent acts affecting a prior state
sentence. We have never specifically addressed whether a
state that permits reclassifying particular felony convictions

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13

as misdemeanors requires a federal court to revisit a federal
sentence enhancement imposed under § 841. But we have
addressed whether dismissing or expunging a predicate state
conviction invalidates a federal enhancement under this
section. See Norbury, 492 F.3d 1012. In Norbury, we held
that a state’s later dismissal or expungement of a predicate
state conviction had no bearing on whether § 841’s
requirements were met. Id. at 1015. In other words, despite
the fact that the state felony conviction was now expunged,
this did not change the historical fact that, for purposes of
§ 841, the defendant had been convicted of the felony in the
past. Id. We noted one exception: 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.
Id. (citing Dickerson, 460 U.S. at 115).3 Other than this
circumstance, we explained that a federal enhancement “does
not depend upon the mechanics of state post-conviction
procedures, but rather involves the [state] conviction’s
underlying lawfulness.” Id.
B
Like the ACCA provision at issue in McNeill, § 841 is a
“backward-looking,” McNeill, 563 U.S. at 821, inquiry
requiring only that a defendant have committed his federal
crime “after two or more prior convictions for a felony drug
offense have become final,” 21 U.S.C. § 841(b)(1)(A)
(emphasis added). The statute tells us what event triggers the
enhancement: two state convictions that are “final.” Id. As
the Tenth Circuit has explained: “The question posed by
3

Proposition 47 did not make Vasquez innocent of his felony
possession of controlled substance. Rather, it downgraded the offense.

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§ 841(b)(1)(A) is whether the defendant was previously
convicted, not the particulars of how state law later might
have” permitted relief from the defendant’s state conviction.
United States v. Dyke, 718 F.3d 1282, 1293 (10th Cir. 2013),
cert. denied, 134 S. Ct. 365 (2013). In other words, a state
making a change to a state conviction, after it has become
final, “does not alter the historical fact of the [prior state]
conviction” becoming final—which is what § 841 requires.
Id. at 1292 (quoting Dickerson, 460 U.S. at 115). Even where
a state has fully eradicated a predicate state conviction by
dismissing it or expunging it—a more drastic change than
merely reclassifying it as a misdemeanor—“as a matter of
plain statutory meaning there [is] . . . no question” the
defendant committed his crime “after a [prior state felony]
conviction” has become final. Dyke, 718 F.3d at 1292.
Congress could, of course, give retroactive effect to
changes in state law for purposes of federal statutes “for
policy reasons unrelated to innocence or an error of law.”
United States v. Law, 528 F.3d 888, 911 (D.C. Cir. 2008) (per
curium). Indeed, it has done so in other circumstances. See
United States v. Yepez, 704 F.3d 1087, 1090–91 (9th Cir.
2012) (per curium) (en banc) (discussing carve-outs in the
U.S. Sentencing Guidelines). But in § 841, Congress did not.
One purpose for § 841 is to discourage repeat offenders. If a
state provides relief for a prior state drug conviction, after the
defendant has committed another, federal, drug crime, “it’s
unclear why a [federal] statute aimed at punishing recidivism
(as § 841(b)(1)(A) is) would afford the defendant” relief in
his federal sentence. Dyke, 718 F.3d at 1293.
Ignoring later state actions for purposes of federal
sentences also aligns with the Supreme Court’s repeated
admonishments that federal laws should be construed to

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15

achieve national uniformity. See Dickerson, 460 U.S. at 112.
As we explained in Bergeman, “[i]f a conviction were to be
determined by application of the different . . . statutes of each
state, then the application of federal criminal sanctions would
depend solely upon where the defendant’s previous
conviction had occurred.” 592 F.2d at 537. We doubted that
Congress would have “intended a federal criminal law to be
applied in such a patchwork fashion.” Id.; see also United
States v. McGlory, 968 F.2d 309, 350 (3d Cir. 1992) (“[W]e
note the confusion in sentencing likely to result if the
sentencing court had to analyze the status of every prior state
conviction in terms of the status of state law. . . . This would
entail applying changes in state law retroactively to final
convictions.”).
III
Vasquez argues his case is different because California
applies Proposition 47 retroactively, so we should treat his
1996 felony conviction as if it never existed. But there are
two problems with this argument. First, it is not clear that
even California would apply Proposition 47 retroactively in
a sentence enhancement case such as ours. Although
California’s new statute allows defendants to request
reclassification and a reduced sentence, the statute expressly
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.” Cal.
Penal Code § 1170.18(n). The California Supreme Court
previously addressed a state statute that permits California
courts to reclassify a “wobbler” offense—one that can be
punished as either a felony or a misdemeanor—to be a
misdemeanor upon completion of probation, even if the
defendant was originally convicted of a felony. And the

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California Supreme Court observed that the reclassification
of a felony to a misdemeanor does not necessarily mean the
crime will be treated as a misdemeanor retroactively for the
purpose of other statutory schemes. See People v. Park,
56 Cal. 4th 782, 795–803 (2013) (finding that a felony
wobbler reduced to a misdemeanor would count as a prior
felony conviction for purposes of a sentencing enhancement
under Cal. Penal Code § 667(d)(1), but would not count as a
prior felony conviction for purposes of a sentencing
enhancement under Cal. Penal Code § 667(a)).
Second, even if California decided to give Proposition 47
retroactive effect for purposes of its own state law, that
would not retroactively make Vasquez’s felony conviction a
misdemeanor for purposes of federal law. As we have
explained, § 841 explicitly tells us when it applies: When a
defendant (1) commits a federal drug offense (2) after being
convicted of two or more felony drug offenses that have
“become final.” 21 U.S.C. § 841(b)(1)(a). There is no doubt
Vasquez committed a federal drug offense, nor is there any
doubt his state felony convictions “have become final.”
We thus hold that California’s Proposition 47, offering
post-conviction relief by reclassifying certain past felony
convictions as misdemeanors, does not undermine a prior
conviction’s felony-status for purposes of § 841. 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.”
AFFIRMED.