United States v. Snellenberger

PER CURIAM Opinion; Concurrence by Judge GRABER; Dissent by Judge MILAN D. SMITH, JR.

We must decide whether a court may consider a clerk’s minute order when applying the modified categorical approach of Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143,109 L.Ed.2d 607 (1990).

Facts

Michael Snellenberger walked into a bank with a threatening note and walked out with a small sum of money. He was quickly arrested and eventually pleaded guilty to unarmed bank robbery. The district court calculated a Sentencing Guidelines range of 151 to 188 months and sentenced Snellenberger to 151 months. On appeal, he challenges the calculation of the sentencing range.

Analysis

1. Snellenberger’s sentencing range was greatly elevated when the district court determined that he was a career offender. To qualify as a career offender, a defendant must be convicted of a crime of violence or a drug offense after having previously committed two such crimes. U.S.S.G. § 4Bl.l(a). Snellenberger’s crime of conviction, bank robbery, is a crime of violence; one of his prior convictions, sale of methamphetamine, is a drug offense. Under dispute is his other prior: burglary in violation of California Penal Code § 459.

A “crime of violence,” as defined in U.S.S.G. § 4B1.2(a), includes (among other things) “burglary of a dwelling.” If Snel-lenberger’s prior conviction qualifies as burglary of a dwelling, it’s a crime of violence. There are two possible reasons why it might not qualify: First, California’s burglary statute is broader than the generic definition of burglary adopted by the Supreme Court as the benchmark in Taylor. Generic burglary is limited to entry into a “building or other structure,” *701495 U.S. at 598, 110 S.Ct. 2143, whereas California burglary covers entry into all manner of other places — tents, railroad cars, automobiles, aircraft, mines, even outhouses. Second, the Sentencing Guidelines are even narrower than the generic definition of burglary; whereas generic burglary may be committed in a commercial building, only burglaries of dwellings qualify as crimes of violence.

When the statute of conviction is broader than the generic definition, we can’t tell categorically whether the prior conviction qualifies as a strike. Rather, we must use the so called modified categorical approach, which requires us to determine — if we can — whether the conduct for which the defendant was convicted fits within the federal definition of the offense. Id. at 602, 110 S.Ct. 2143. As applied to Snellenberger, we must figure out whether the conduct to which he pleaded guilty was burglary of a building or other structure (as Taylor requires) and further whether the burglary was of a dwelling (as the Sentencing Guidelines require). If we can tell both of these things with reasonable certainty, the prior conviction counts and Snellenberger is a career criminal.

The Supreme Court in Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005), listed the types of documents we may consider in applying the modified categorical approach: “the statutory definition, charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented.” Id. at 16, 125 S.Ct. 1254. We have the charging document — here an information — but it charges two burglaries. Count 1 charges burglary of a “dwelling house,” but count 2 charges burglary of a vehicle. Other than the statutory definition, the record contains none of the documents to which the Supreme Court refers in Shepard. How can we tell, then, whether Snellenberger pleaded guilty to count 1 (which would count as a strike against him) or count 2 (which wouldn’t)?

The district court relied on the state court clerk’s minute order. California Penal Code § 1207 provides that “[w]hen judgment upon a conviction is rendered, the clerk must enter the judgment in the minutes, stating briefly the offense for which the conviction was had.... A copy of the judgment of conviction shall be filed with the papers in the case.”

The minute order is a printed form bearing the name of the court at the top, followed by the case caption. The body consists of numbered lines, each calling for some information to be inserted by checking a box or writing in a blank. Line 56 starts with a box through which an “X” has been drawn; it reads “Defendant personally withdraws plea of not guilty to count(s)_,” and “1” is written in the blank. Line 57 also starts with a box through which an “X” has been drawn, and indicates a plea of nolo contendere to count 1.

Together, these lines establish that Snel-lenberger pleaded nolo contendere to count 1, which charged him with “en-terfing] an inhabited dwelling house and trailer coach and inhabited portion of a building occupied by Peter MacPherson, with the intent to commit larceny and any felony.” Because the three noun phrases are connected by “and” rather than “or,” the charging document and minute order, if consulted, establish that Snellenberger committed burglary of a dwelling.

Snellenberger challenges the district court’s reliance on the minute order, arguing that it isn’t among the documents listed by the Court in Shepard. But that list was illustrative; documents of equal reliability may also be considered. See Shepard, 544 U.S. at 26, 125 S.Ct. 1254(permit-*702ting use of “comparable” judicial records). The clerk’s minute order easily falls within the category of documents described: It’s prepared by a court official at the time the guilty plea is taken (or shortly afterward), and that official is charged by law with recording the proceedings accurately. The clerk presumably exercises that duty as faithfully and diligently as, for example, court reporters, upon whose transcripts we regularly depend. Indeed, the Shepard list expressly references the transcript of the plea colloquy as a document we may properly rely on, even though the transcript itself (as opposed to the reporter’s notes on which it is based) is generally prepared days or weeks — and sometimes years— after the in-court proceedings.

Snellenberger also complains that the minute order is not something that is approved, or even seen, by the parties, so he shouldn’t be held responsible for its contents. It’s not clear from the record whether parties to a criminal case in California are given copies of the clerk’s minute order at the time it is placed in the case file, but there is certainly no suggestion that it’s a secret document. A defendant can always check the case file and ensure that any materials placed there accurately reflect the proceedings; presumably, doing so is part of every criminal defense lawyer’s professional obligation. In any event, by analogy to transcripts, it’s enough that the minute order was prepared by a neutral officer of the court, and that the defendant had the right to examine and challenge its content, whether or not he actually did. Having failed to challenge or correct the minute order in state court — perhaps because there wasn’t a basis for doing so — Snellenberger is now bound by what it says: He pleaded nolo contendere to the burglary of a dwelling, satisfying this aspect of the generic definition of the crime for purposes of U.S.S.G. § 4331.1(a).

We therefore hold that district courts may rely on clerk minute orders that conform to the essential procedures described above in applying the modified categorical approach. United States v. Diaz-Argueta, 447 F.3d 1167, 1169 (9th Cir.2006), which suggested the contrary, is to that extent overruled.

2. In the district court, Snellen-berger unsuccessfully argued that, even if the minute order were considered, his conviction wasn’t a generic burglary within the meaning of Taylor. On appeal, he didn’t make that argument in his opening brief. See Def.’s Supp. Br. to Rh’g En Banc 4 & n.4 (Snellenberger “has not previously challenged the application of the career offender guideline to his case on the ... basis” “that California burglary is missing the element of unprivileged entry”). We therefore decline to reach the issue. See, e.g., United States v. Ankeny, 502 F.3d 829, 835 n. 3 (9th Cir.2007); Leon v. IDX Sys. Corp., 464 F.3d 951, 957 n. 3 (9th Cir.2006).

No special circumstances justify our raising the question sua sponte. The fact that Snellenberger made this argument in the district court demonstrates that the absence of the later-decided Navarro-Lopez v. Gonzales, 503 F.3d 1063 (9th Cir. 2007) (en banc), didn’t deter him from making the argument in the first place. Nothing prevented him from appealing the district court’s adverse ruling on that issue. We therefore express no opinion on the application of Navarro-Lopez to the facts of this case.

AFFIRMED.

*703APPENDIX

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