NOT RECOMMENDED F OR FUL L -TEXT PUB L I CATI ON File Na me: 12a0856n.06 No. 10-5253 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

UNI TED STATES OF AMERI CA,

Plaintiff-Appellee ,
v. VI NCENTE CORONA

Def endant- Appellant. ) ) ) ) ) ) ) ) ) On Appea l from the United States District Court for the Ea stern District

of Tenne ssee

Be fore : BOG GS and GI BB ONS, Circuit J udg es; RUSSEL L , Senior District J udg e. * RU SS E L L , Se nior District J udg e: Def endant- Appellant V in c e n te Co r o n a ( “ Co r o n a ” ) a p p e a ls his conviction fo r v ar i o u s drug offe nses and conspirac y to commit money launder ing. The fivecount criminal indictment char g ed Corona and others with conspirac y to transport and sell coca ine and marijuana within the Easter n District of Tenne ssee, conspirac y to commit money launder ing, and three separ ate instances of aiding and abetting others in the d i s t ribution of five or more kilogr ams of coca ine. His conviction on all five counts followed afte r a nine-da y jury trial. He was sentenc ed to a term of l ife im priso n m en t af t er the district court found he had two previous felony drug convictions and e nhance d his sentence under 21 U .S.C. §§ 851 and 841(b)(1) (A).

The Honora

ble Thomas B. Russell, United States S en i o r Di strict J udg e for the Western * District of Ke ntucky , sitti ng by desig nation. -1-No. 10-5253, United States v. Vince nte Corona

C o ro n a n ow appea ls his conviction and sentenc e, citing err ors in eac h. He arg ues t h at

reve rsal of his conviction is justified beca use the Gover

nment i n t ro duced impermissible hear say evidenc e from an unindicted coconspirator. Corona arg ues his mandatory life sen t en ce is proce durally and substantively unrea sonable beca use he does not have the requisite felony drug convictions to justify his enhanc ed sentenc e. He further say s the district court was not bound by the jury ’s deter

mination on drug quantity and should have found he was responsible for a smaller amount. Finding no err or below, w e af firm both the conviction and the life sentenc e. I. A. P ret rial factual b ackground During trial, the Gover

nment alleg ed Corona was involved in a plot to transport coca ine and marijuana from C alifornia to are as of east Tennessee and north Geor g ia for sale and distribution. Coconspirators Richard Robinson, Dennis Richardson, J erma ine Hug hes, and Kimberly Robinson testified for the Gover

nment in exchang e for sentenc ing consideration. Collectively , these witnesses indicated Corona

was the c onspiracy ’s major sourc e of c ocaine

. R ichar d Robinson and Richardson said Corona beg an supply ing them with coca i n e an d marijuana in 2004. The two rec eived wee k l y s h i p m en t s of coca ine, provided by Corona, from California to Tenne ssee we ighing betwee n five and twenty -seve n kilogr ams. Richard Robinson’s wi fe , Kimberly Robinson, acc ompanied him to sever al meeting s with Corona wher e drug
transac tions occur

red. Wit nesses testified that, in all, Corona supplied more than 200 kilogr ams of

coca ine t o the drug orga

nization in east T en nessee . Distributors in the conspiracy also purcha sed

-2-No. 10-5253, United States v. Vince nte Corona

marijuana from both Corona and a n unindicted coconspirator named “Worm.” The marijuana too was shipped f

rom California. I n 2005, Richard Robi nson was arre s t ed fo r hi s drug -re lated activities and was held i n the Knox County Detention Center. Richardson and Hug hes continued to eng ag e in the conspirac y during Richard Robinson’s inca rce ration. At some point, Hug hes spoke with Worm i n an attempt to acquir e more narc otics. Hug hes testified that Worm re s p o nded that he did not “mess with the white s id e o f t h e fe n ce, he onl y messed with the gre en si de of the fence.” Hug hes i nterpre ted t he statement to mean Worm did not deal coc aine. Kimberly Robinson beg an cooper ating with law enf o r c e me n t f

o ll o w in g h e r h

usband’s arr est. I n November of 20 0 5 , she started rec ording her conver sations with Richardson and Corona. Richardson eventua lly broker ed a meeting on Dec ember 15, 2005, betwee n Kimberly Robinson and Corona in L os Ang eles. There , the two discussed the continued sale of coca ine and its eventua l distribution in Tenne ssee. Kimberly Robinson and Corona ag ree d to meet ag ain in J anuar y of 2006 beca use he did not possess coca ine to sell her at that time. On J anuar y 4, 2006, Kimberly Robinson and Richardson spoke about her anticipate d p u rcha se of coca ine from Corona. I n the taped

conver sation, Richar d son advised her that Corona would sell coca ine for $14,500 a kilogr am. Kimberly Robi n s o n agre ed to meet Corona in California three day s later to make the purcha se. Richardson confirme d at trial t h at he had spoken with Corona about the price and rela y ed the information to Kimberly

Robinson. K im b e r ly Robinson, Richardson, and Corona met in California on J anuar y 7, 2006. The th

r e e spoke about Corona’s future sales o f coca ine to Kimberly Robinson and Richardson. Corona -3-No. 10-5253, United States v. Vince nte Corona

outlined future transac tions, with cash pay ments by Kimberly Robinson on Fr iday s and delivery of

coca ine on the following Monday s. He also en v i sioned the incre ase of sales to eig ht kilogr ams a

wee k. Wit h Kimberly Robinson’s as s i s t ance , this conver sation was secr etly rec orded by law enfor ceme nt officials. I mmediately following this g ather ing, law enfor ceme nt arr ested Corona and Richards on. Whil e incar cer ated befor e trial, Corona encour ag ed both Richardson and Hug hes to wro n gl y char acte rize their drug activities as only involving the sale of marijuana and not coca ine beca use the penalties for the former involve less jail time. Both men declined and eventua lly offe red testimony to the contra

ry ag ainst Corona. B. Statem ents by coconspirator At trial, Corona attacke d the Gover nment’s strateg y to paint him as the conspirac y ’s source of coca ine. He instead insinuated that the Gover nment’s witnesses had framed him to protec t Worm, the conspirac y ’s true connec tion for coca ine. To undermine this arg ument, the Gover nment elicited testimony from Hug hes at trial to demonstrate Worm traff icked solely in marijuana

. The pertinent testimony is as follows: Hug hes: [ Richard Robinson] asked me to g et in touch wit h h i s h o m e b o y

Worm and let him know ever y thing was all rig ht. Th at h e woul d holler at him, when e very thing wa s over with. Gover nment: Did y ou, in fac t, contact Worm? Hug hes: Yes, sir. Gover nment: And when y ou spoke with Worm at Richard Robinson’s reque st, did y ou talk with him about the possibil ity of buy ing mor e drug s? Hug hes: I talked to him about - I know I reme mber one conver satio n I h ad I

told him it was dry in terms of somethi n g t o s m o k e. I wanted to smoke, inquiring about if I could buy persona lly some marijuana for my own use pe rsonally

. -4-No. 10-5253, United States v. Vince nte Corona

Gover nment: What did W orm say , when y ou asked him that? Hug hes: Well, first he said he didn’t mess with the white side of the fenc e, he

only messed with the gre en s i de of the fenc e. That is what I said, y eah, I only want something to smoke. Gover nment: When he said he didn’t mess with the white side of the fen ce, what did y ou understand him to mean? Hug hes: That he didn’t de al coc aine. R. 485, TT 2/14/08, Hug hes p. 32-33. Corona’s attorney objected, arg uing that Worm’s statements

wer e hearsay that did not meet any relevant exception. The dist rict court overr uled t he objection, finding that Worm was a part of the conspirac y and the rema rk was in further ance of the conspirac y pursuant to Fe dera l Rule of Evidence 801(d)( 2)(E)

. C. Sentencing issu es The Gover

nment offe red notice befor e trial under 21 U.S.C

. § 8 5 1 t h at it would seek to enhanc e the penalties Corona fac ed as provided by 21 U.S.C. § 841(b)( 1)(A)

. After th e g uilty verdic t, the Gover

nment offe red three qualify i n g fe lony drug convictions as the basis for enhanc ement: (1) a 1998 California conviction for possession of methamphetamin e (“ 1 998 Conviction”), (2) a 1989 fede ral conviction for possession w ith intent to distribute coca ine and (3) a 1987 California

conviction for the sale or transporta tion of coca ine (“1987 Conviction”). Whil e he conce ded the fede ral conviction was a qualify ing felony for enhanc ement p u rposes, Corona lodge d objections to the Gover nment’s use of the two Ca li f o r n ia c o n v ic ti o n s to enhanc e his sentenc e. The district court held a sentenc ing hear ing to revie w the convictions. There , Corona arg ued the Gover nment had not s u s t ai n ed i t s burden of proving beyond a rea sonable doubt that felony drug convictions that had be come f inal resulted f

rom these pr ocee dings in California ’s Superior Court.

-5-No. 10-5253, United States v. Vince nte Corona

The 1998 Conviction unfolded as follows. I n September of 1997, Corona was char g ed with possession of methamphetamine in violation of Hea lth and Safety Code § 11377(a)

. On J anuar y 8, 1998, he was convicted in California Superior Court. The court suspended the proce eding s and order ed him to serve three y ear s probation. Corona chose not to appea l the order of probation and his probation was ter

minated three y ear s later pur suant to California Penal Code § 1203.3. I n the sentenc ing hear ing, the Gover nment relied on a varie ty of exhibi ts from the California court sy stem to show the 1998 Conviction’s finality

. I t introduced c opies of the f elony complaint and charg ing information, the transc ript of the S uperior Court proce eding s wher e C orona pleaded g uilty and probation was order ed, minute entries from Superior Court indicating he pleade d g uilty 1 and was place d on probation, and exhibi ts showing h e d i d n ot appea l the order of probation. I n conjunction with the rec ord, the district court examined the California Hea lth and Safety Code and conclude d possession of methampheta mine was a felony drug offe nse. The underly

ing rec ord prese nts the following narr ative for the 1 9 8 7 C onviction. I n September of 1987, Corona was char g ed with the sal e or transport of a controlled substance in violation of Hea lth and Safety Code § 11352. C o ro n a p l ea d ed g uilty to the char g e in Municipal Court in California, which then cer tified the plea to Superior Court. On November 6, 1987, Superior Court acc epted the g uilty plea en t er ed in Municipal Court for violating § 11352. Superior Court suspended the proce eding s and order ed Corona to serve three y ear s probation. Corona did not appea l

A minute entry is “pre pare d by a court officia l at the time the g uilty plea is taken (or shortly 1 afte rwa rd), a nd that officia l is c harg ed by law with re cording the proc eeding s acc urate ly .” United States v. Snellenberge r , 548 F.3d 699 , 7 0 2 (9th Cir. 2008) (desc ribing minute entries from the California state c ourts). -6-No. 10-5253, United States v. Vince nte Corona

the court’s order of probation. Ag ain, Corona’s p robation was terminated sever al y ear s later pursuant to California Pena l Code § 1203.3. At the district court hear ing, the Gover nment introduced a n u m ber of cer tified rec ords as evidenc e of the 1987 Conviction. These included copies of the criminal complaint, multipl e minute

en tries from the Municipal and Superior Courts documenting Corona’s plea and probati o n ar y sentenc e, a transcr ip t fr om the chang e of plea hear ing in Municipal Court, and minute entries showing Corona violated his probation. This evidentiar y foundation convinced the district court bey ond a re asonable doubt that the 1987 Conviction constitut ed a f inal felony

drug conviction. Corona asser

ted sever al rea sons for the district court to reje ct enhanc ement of his sentenc e. He stated that the Superior Court’s decisions to suspend the proce eding s for eac h conviction, order probation, and terminate probation under California Penal Code § 1203.4 me a n t h is c o n victions wer e not final. He claimed that the exhibi ts introduced wer e unreliable and did not prove bey on d a

rea sonable doubt that the 1998 a nd 1987 Convictions we re final felony convictions. For

the 1998 Conviction, he stated that beca use offe nses under § 11377(a) may be prose cuted a s either a felony

or a misdemeanor under California law, the 1998 Conviction was ac t u al ly a misdemeanor. Unper suaded, the district court deter mined both convictions wer e felony drug offe nses under fede ral law and e nhance d Corona’s se ntence to mandatory life imprisonment. D. Drug quantity determ ination For Count One, the jury found the conspirac y to distribute coca ine involved more than five kilogr ams of the drug

. I t rea ched a simil ar conclusion with the char g es of aiding and abetting others in the distribution of coca ine in Counts Three , Four , and Five. I n a post-trial memorandum, Corona -7-No. 10-5253, United States v. Vince nte Corona

asser ted the district c ourt was not bound by the jury -dete rmined five kilogr am quantities, based on this court’s decision of Un ited States v. Cox , 565 F.3d 1013 (6th Cir. 2009). He arg ued that two kilogr ams was the most he was responsible for b as ed o n the objective proof at trial. The district court de nied this request a nd adopted the jur

y ’s finding on quantity

. II. A. Coconspirator’ s statem ents Corona protests the introduction of statements by Hug hes that Worm’s drug activities wer e limit ed to the sale of marijuana

. Corona stresses that these comments wer e inadmissible hear say and underc ut his defe nse at trial that he was framed by his coconspi rators. The Gover nment say s the
statement is not hear say under Fe dera l Rule of Evidence 801(d)( 2)(E)

. I n the alternative , the Gover nment contends that if Hug hes’s statements wer e inadmissible, the introduction was harmless

err or since the evidenc e in favor of Corona ’s g uilt was overwhe lming. Out- of-c ourt statements betwee n coconspira tors a r e a dmissibl e if they meet the foundational p re re q u i s i t es of Fe dera l Rule of Evidence 801(d)( 2)(E)

. Under the rule, a district court mus t conclude “(1) the conspirac y exis ted; (2) the defe ndant was a member of the conspirac y ; and (3) the

co-c onspirator made the proff er ed statements in further ance of the conspirac y .” United States v. W arman , 578 F.3d 320, 335 (6th Cir. 2009) (citing United States v. W ilson , 168 F.3d 916, 920 (6th Cir. 1999)). “I f it is more likely than not that the decla rant and the defe ndant wer e members of a conspirac y

when the he arsa

y statement wa s made, a

nd that the statement wa s made in further ance of the conspirac y , the hear say is admissible.” United States v. Hitow , 889 F.2d 1573, 1581 (6th Cir. 1989). The district court’s deter mination on whether the foundational criter ia under Rule 801 wer e

-8-No. 10-5253, United States v. Vince nte Corona

met “is a question of fac t f or the district c ourt that [t his court] revie w[s] for clea r err or.” W

arman , 578 F.3d at 335 (citing United States v. Malisz ew s ki , 1 6 1 F.3d 992, 1007 (6th Cir. 1998)). “Howe ver, [t his court] revie w[s] the [di strict] court’s ultimate leg al conclusion reg arding admissibili ty de novo .” Id

. Corona conce des that sufficie nt proof exis ted for the district court to find a conspirac y exis ted and that Worm was a member of the conspira cy . He c ontends that Hug hes’s c onversa tion with Worm was not in further ance of the conspirac y as it promoted his own ag en da to secur e marijuana for his per sonal use. “A statement is ‘in further ance of’ a conspirac y if it is intended to promote the objectives of the conspirac y .” United States v. Clark , 18 F.3d 1337, 1342 (6th Cir. 1994). “Statements that have been found to be ‘in furthe ranc e of’ conspirac ies include statements identify ing other conspirator s and their roles in the conspira cy , statements to inform other c onspirators of the activities or st atus of the conspirac y , and statements as to the source or purcha ser of controlled substances.” Hitow , 889 F.2d at 1581 (interna l citations omitted). “[A] statement may be in further ance of a conspirac y ‘eve n i f not exclusively , or even primarily , made to further the conspiracy .’” W arman , 578 F. 3 d at 3 3 8 (quoting United States v. Tocco , 200 F.3d 401, 419 (6th C i r. 2 0 0 0 ))

. I dle chatter and casua l

conver sations do not meet this threshold and are not proper ly admitted under Rule 801(d)( 2)(E)

. Id

. (citing United States v. Darwich , 337 F.3d 645, 657 ( 6th Cir. 2003)). Given their context, Worm’s comments wer e made in further ance of the conspirac y . See id

. (“Whether a statement was in further ance of a conspirac y turns on the context in which it was made and the intent of the decla rant in making it.”). Acc ording to Hug hes, the convers at i on betwee n

-9-No. 10-5253, United States v. Vince nte Corona

Worm and himself arose out of Richard Robinson’ s reque st that the two men talk about the possibili ty

of continued dr

ug transac tions in spite of R obinson’s incarc eration. Prior to the phone call, Hug hes had never dealt direc tly with Worm even though both wer e aff iliated with Robinson’s org anization. Worm’s statement that he o n l y s o l d marijuana may be char acte rized as bring ing Hug hes up to speed on a seg ment of the conspirac y , specific ally Worm’s responsibilities, with which he had been previously unfamiliar. Put another way , Worm was defining his role in the conspirac y to Hug hes as well as identify ing himself as the source of the marijuana

. Moreove r, Worm’s rema rks to Hug hes that he did not sell coc aine indire ctly identified the sourc e of c ocaine as someone e lse. Statements like these are in further ance of a consp ir a c y a n d th u s a d missible under Rule 801(d)( 2)(E)

. See United States v. Franklin , 415 F.3d 537, 552 (6th Cir. 2005) (statements i d entify ing the participa nts and their roles in a conspirac y are in furtheranc e of that conspirac y ); United States v. Monus , 128 F.3d 376, 392-93 (6th Cir. 1997) (statement that identifies participa nt and explains their role is admissible under Rule 801(d)( 2)(E) ); United States v. Bryan , 35 F.3d 567, 1994 WL 468034
at *7 (6th Cir. 1994) (table) (statements i d en t i fy i n g t he drug ’s source are in further ance of the conspirac y

). The district court’s adoption of this rationale upon admitting Hug hes’s test i m o n y means it did not err w ith this evidentiar y decision. Even assuming that Hug hes’s testimony did not meet the foundational prer equisites for Rule 801(d)( 2)(E) , any err or does not justify reve rsal as the evidenc e at trial ag ainst Corona was abundant and persua sive. Evidentiary ruling s at trial, including t h o s e concerning the admissibili ty of a 2

Corona contends Worm’s statement t o Hug hes violated the Constitution’s Confrontation 2 Clause, and thus reve rsal of his con v i ct ion is nece ssary . As Rule 801(d)( 2)(E) cover s Worm’s -10-No. 10-5253, United States v. Vince nte Corona

coconspirator’s statements, are subject to harmless-e rror analy sis. W arman , 57 8 F.3d at 340-41. Reversa l of a conviction is unwar rante d if it is possible to say with fair assura nce “‘tha t the judgme nt

was not substantially sway ed by the err or.’” Id. at 340 (quoting Kotteakos v. United States , 328 U.S. 750, 765 (1946))

. “‘The err oneous admission of a statement by an unindicted co-c onspirator constitutes harmless err or wh en s u fficie nt other evidenc e demonstrates a defe ndant’s active involvement in the conspiracy .’” United St ates v. Y oung , 5 5 3 F. 3d 1035, 1047-48 (6th Cir. 2009) (quoting United States v. Roge rs , 118 F.3d 466, 477 ( 6th Cir. 1997)). Corona arg ues against harmless-e rror analy sis beca use the evidenc e ag ainst him was not

overw helming. He is mistaken. Richard Robinson, Kimberly Robinson, and Richardson all identified Corona as a source of coca ine for the conspirac y . Richard Robinson and Richardson g ave detailed acc ounts of how they purcha sed larg e quantities of c ocaine from Corona, w hich was la ter packa g ed in front of Corona for shipment. Rich ardson and Hughe s rela y ed that while i n custody , Corona admitted he sold coca ine to the members of the conspirac y and solicited their help to conce al
t h es e past sales. Recorde d conver sations by Kimberly Robinson and her corr oborating testimon y established Corona’s drug distribution activities and his past interac tions with other coconspirators such as Richard Robinson and Richardson. Weighing the evidenc e prese nted at trial with the single

statement to Hug hes, the statement was not hear say and there is no issue with the Confrontation Clause. United States v. Lopez-Me dina , 461 F.3d 724, 746 n. 5 (6t h C i r. 2 0 0 6 ). Even if the statement wer e hear say , it did not violate Corona’s rig hts under the Six th A mendment beca use his statement was non-testimonial. See Crawf ord v. W ashing t o n , 5 4 1 U.S

. 36, 50-51 (2004) (Confrontation Clause targ ets “for mal statement[s] to g overnme nt office rs,” not “ca sual rema rk[s] t o an acqua intance” ); United States v. McCullough , 150 F. App’x 507, 509 (6th Cir

. 2 0 0 5 ) (statements made to companion ar e not testimonial in nature). -11-No. 10-5253, United States v. Vince nte Corona

statement Corona targ ets, it is impossibl e to say t h e j u d gment ag ainst him was “substantially sway ed” by the objected- to testimony

. See W arm a n , 5 7 8 F.3d at 340-41 (whe re district court

e r r o n e o u s ly a d

mitted two hear say statements, testimony of other coconspirators was s u f f ic ie n t to f in d harmless err or); Y

oung , 553 F.3d at 1047-48 (other coconspirators’ corr oboration of a defe ndant’s role in c onspiracy rende red moot a single portion of a witness’s testimony that arg uably contained inadmissible hear say

); see also United States v. Sherrills , 432 F. App’x 476, 485-86 (6th Cir. 2011) (whe re a coconspira

tor’s statement was admitted without nece ssary details for fo u ndational prer equisites, testimony

from coc onspirators and ta ped conve rsations rende red e rror harmless) For these rea sons, Corona’s claims of i nadmissible hear say do not war rant reve rsing his conviction. B. En hancem ent of sentence Corona challeng es the district court’s conclusions that the 1998 and 1987 Convictions wer e final felony drug convictions for the purposes of an enhanc ement under 21 U.S.C. §§ 841 and 851. He insists the district court possessed insufficient or unreliable evidenc e to adjudg e either conviction

as final. Corona continues that the 1998 Conviction was in fac t a misdemeanor under Ca li f o rnia law. Acc ording ly , he asks this court to over turn his sentence of life imprisonment. Sentencing decisions by a district court are revie wed for rea sonablene ss under an abuse- ofdiscretion standard. Unite d States v. W ettstain , 618 F.3d 577, 591 (6th Cir. 2010) (citations omitted). “‘Revie w for rea sonablene ss has bot h proce dural and substantive components.’” United St ates v. Jeross , 521 F.3d 562, 569 (6th Cir. 2008) (quoting United States v. Carter , 510 F.3d 593, 600 (6th Cir. 2007)). Procedur al err ors include improperly calc ulating the g uideline rang e of a sentenc e. Gall -12-No. 10-5253, United States v. Vince nte Corona

v. United States , 552 U.S. 38, 51 (2 0 0 7 ). I f proce durally sound, this court then examines the substantive rea sonablene ss of a sente nce unde r abuse of discre tion. Id

. Criminal defe ndants who commit drug offe nses involving five or more kilogr ams of coca ine and in viol at i o n of section 841(a) shall be sentenc ed to a term of imprisonment not “less than 10 y ear s or more than life.” 21 U.S.C. § 841(b)( 1)(A) , (ii). Section 841 allows fo r a s en tence of mandatory life impris o n m en t if a defe ndant violates § 841(b)( 1)(A) and has “two or more prior convictions for a felony drug offe nse [t hat] have become final.” 21 U.S.C. § 841(b)( 1)(A)

. Where

a defe ndant denies in writing the exis tence of the previous convictions, the district court is require d
to hold a hear ing wher e the g overnme nt must prove bey ond a rea sonable doubt any contested alleg ation of the e arlier

convictions. 21 U.S.C. § 851(c)( 1). A ruling by the district court that a defe ndant has a prior conviction is a fac tual fi n ding. United States v. Chisom , 249 F. App’x 406, 410 (6th Cir. 2007) (citing United States v. Horton , 163 F. App’ x 378, 380 (6th Cir. 2006)). “ The standard of revie w for a district cour t’s fac tual finding s at sentenc ing is clea

r err or.” United States v. Katzopoulos , 437 F.3d 569, 578 (6th Cir. 2006); accord Chisom , 249 F. App’x at 410 (“This Court re v i ew s a district court’s fac tual finding s at sentenc ing for clea

r err or.” (citation omitted)). This court revie ws de novo the leg al conclusion that

a prior conviction is a qualify i n g o ffense under 21 U.S.C. § 841(b)( 1)(A)

. See United States v. McG rattan , 504 F.3d 608, 610 (6th Cir. 2007) (citing United States v. Armstead , 467 F.3d 943, 946 (6th Cir. 2006)); see also United States v. W illiams , 616 F.3d 760, 766 (8th Cir. 2010); United States

v. Norbury , 492 F.3d 1012, 1014 (9th Cir. 2007). Whether the district court relied on the appropr iate ty pe of evidenc e in rea ching its conclusion on past convictions is a pure leg al question and war rants -13-No. 10-5253, United States v. Vince nte Corona

de novo revie w as well. See United States v. Jimene z , 605 F.3d 415, 420 (6th Cir. 2010) abrog ated on other g rounds by Tapia v. United States , 131 S.Ct . 2382 (2011). Having conce ded his g uilt of the prior fede ral felony drug conviction in 1989, we need only
to hold that the district court was corr ect as to either the 1998 Conviction or the 1987 Conviction to impose a mandatory life sentenc e on Corona. Upon revie w, howeve r, we hold that the district court

corr ectly deter mined that both were final fe lony convictions for the purposes of e nhance ment. 1. 1998 Conviction Be tween 1997 and 1998, Corona was arr ested and char g ed with possession o f methamphetamine, in violation of California Hea lth and Safety Code §§ 11377(a) and 11055(d)( 2). Corona say s the district c ourt incorre ctly used the 1998 Conviction to enhanc e his conviction for a number of rea sons: (1) unreliable evidenc e was introduced to support the conviction’s exis tence , (2) the suspension of the imposit ion of his sen t ence and his probation’s dismiss al means no final conviction occur

red for enhanc ement purposes, and (3) even if there was a final drug conviction, it

was a misdemeanor a

nd not a fe lony . Eac h is unpersuasive. Corona admits he was the subject of the 1998 Conviction but contends the Gover nment did
not establish bey ond a rea sonable doubt the California court enter ed a final judgme nt of conviction. A district court’s decision that the evidenc e showed the fac t of a prior conviction bey ond a

rea sonable doubt under § 851(c) (1) is revie wed de novo . United States v. Arreola-Castillo , 539 F.3d 700, 703 (7th Cir. 2008); United States v. W right , 238 F.3d 418, 2000 WL 1846340, at *4 (4th Cir. 2000) (per curium) (table)

. All rea sonable infere nces are viewed in the light most fa vorable to the g overnme nt, United States v. Harris , 369 F.3d 1157, 1167 (10th Cir. 2004); United States v. Gree n , -14-No. 10-5253, United States v. Vince nte Corona

175 F.3d 822, 834 (10th Cir. 1999 ) (c i ting Jack son v. Virginia , 443 U.S. 307, 319 (1979)) , and finding s of fac t are revie wed for clea r err or, United States v. Kellam , 568 F.3d 125, 1 4 3 (4th Cir. 2009). The Gover

nment introduced the transcr ipt from the California Superior Court wher e Corona pleade d g uilty , the judge suspended his sentenc e, and place d him o n three y ear s formal felony probation. I t further produce d copies of the criminal complaint, a cer tified minute entry showing the imposit ion of t he sente nce, a nd documents memorializing his plac ement on probation, along with its revoc ation, term i n at ion, and dismiss al. As these exhibi ts convincing ly established Corona’s conviction bey ond a rea sonable doubt, the d i s t rict court was not mistaken in this reg ard. See W illiams , 616 F.3d at 766-67 (docume nt containing multipl e minute entries was adequate to prove the exist ence of the prior

conviction bey ond a re asonable doubt for enha nceme nt under § 841). Next, Corona advocates for his sentenc ing’ s reve rsal beca use the 1998 Conviction wa s not

a final drug conviction. He decla res as much beca

use the California Superior Court suspended the criminal proce eding , order ed a term of probation, and later dismiss ed the case at the end o f his probation, under California Penal Code § 1 2 0 3

. 4

. Corona char g es that the alternative sentenc ing prec ludes a finding of finality

. The Gover nment responds that the sentenc e of probation and the failure of Corona to a

ppeal the se ntence qualifies as a final convic tion under fe dera l law. The dispositi ve issue is whether a fi n al felony conviction follows from the suspension of criminal proce eding s, an order of probation, and the dismis sal of probation. A prior felony drug conviction m ust be final if it is to be u s ed fo r enhancement purposes. 21 U.S.C. § 841(b)( 1)(A)

. Fe dera l law g overns whether a prior conviction is fin al wi t h i n t h e meaning of § 841. Adams v. -15-No. 10-5253, United States v. Vince nte Corona

United St ates , 622 F.3d 608, 612 ( 6th Cir. 2010). “A c onviction becomes f inal for the purpose of [federa l] sentenc ing when the tim e for taking a direct appea l from the judgme nt of conviction has expired.” United States v. Miller , 434 F.3d 820, 823 (6th Cir. 2006) (citing United States v. W alker , 160 F.3d 10 7 8 , 1093 (6th Cir. 1998)). Other circuits have found finality for feder al enhanceme nt purposes wher e sentenc ing courts have either defe rre d, suspended, or dismiss ed an ea rlier felony conviction. United States v. Law , 528 F.3d 888, 910-11 (D.C. Cir. 2008) (where prior conviction

was set asi d e u n d er Fe dera l Youth Correc tions Act, it was still proper ly considere d as final conviction under § 841); Norbury , 492 F.3d at 1014-15 (enha nceme nt under § 841 was appropr iate

even though previous conviction was dismiss ed); United States v. Mejias , 47 F.3d 401, 403-04 (11th Cir. 1995) (def

endant’ s plea of nolo contende re wher e adjudication was withheld qualified as a prior conviction for e nhance ment). I n United States v. Miller , this c ourt revie wed the application of alternative sentenc ing and questions of finality under § 841. 434 F.3d at 823-24

. T h e district court enhanc ed a defe ndant’s
sentenc e on acc ount of a prior conviction, ev en though the state court in Geor g ia had defe rre d an adjudication of g uilt during his ear lier sentencing

. Id

. at 822. Under Geor g ia l aw, f i rs t o ff en d ers could be sentenc ed to a two-y ear probationar y period, at the end of which the orig i n al v i o l at i o n would be discharg ed without an adjudication of g uilt. Id

. at 823 (citing Ga. Code Ann. § 4 2 -8

- 62(a) ). While the def

endant wa s not considere d to have a criminal convic tion under Ge org ia law, this c ourt found a conviction for the purposes of § 841 beca me final “at the point a t w hich [i t w as] no longe r appe alable.” Id . at 824. As Ge org ia law pe rmitted an appe al of this sentenc e following the order of probation, the defe ndant’s conviction could be used for enhanc ement under § 841. Id

. -16-No. 10-5253, United States v. Vince nte Corona

The case at bar is indisti ng uishable from Miller

. Corona was char g ed and pleade d g uilty to

a felony drug offe nse. The Superior Court suspended the proceeding s and order ed three y ear s of probation in lieu of incar cer ation. Where a California court enter s an order g ranting probation, the eff ect is a final judgme nt that a criminal defe ndant m ay then appeal. Cal. Penal C od e § 1 2 37(a)

. Fa i l u re to file a notice of appea l with the Superior Court within six ty day s results in the order ’s finality and voids the def

endant’ s chanc e to appea l. People v. Ramirez , 72 Cal. Rptr. 3d 340, 344 (Cal. C t

. Ap p . 2008) (citing Cal. Rules of Court, Rule 8.308(a) ). There is no rec ord of Corona having filed a noti ce of appea l following the order of probation. Wit h Corona’s decision not to appea l, the termination of his probation and the subsequent dismiss al of this conviction do not aff ect the deter mination of finality u nder fede ral law. See Adams , 622 F.3d at 612; Miller , 434 F.3d at 3 824. Finally , Corona claims that the 1998 Conviction was n o t a felony at all, but actua lly a misdemeanor under § 17(b) of the California Penal Code. He states that either upon being sentenc ed
to probation in 1998 or upon dismiss al of the char g es in 2001, the violation beca me a misdemeanor. As enhanc ement under § 841 is only appropr iate af t er fi n al felony convictions, Corona say s the district court’s sente nce is in er ror.

Corona draw s a para llel betwee n the resolution of t h e 1 998 Conviction and the case of 3 United States v. Stallings , 301 F.3d 919 (8th Cir. 2002). He say s Stallings stands for the proposition that the entry of a probation order and suspension of the proce eding s may not be char acte rized as a judgme nt ag ainst a criminal defe ndant under California law. We do not believe the holding in Stallings is dispositi ve on the issue at hand. We also note that the Eig hth Circuit has more rec ently sidestepped the prec edent of Stallings and enhanc ed defe ndants’ sentenc es in circ umstances akin to Corona’s. S

ee Un i t ed States v. Ramon-Rodriguez , 492 F.3d 930, 938-40 (8th Cir. 2007); United States v. Slicer , 361 F.3d 1085, 1087 n. 1 ( 8th Cir. 2004). -17-No. 10-5253, United States v. Vince nte Corona

C al i fornia’ s code sets out that “[a] felony is a crime which is punishable with death o r b y imprisonment in the state prison. Every other crime or public offe nse is a misdemeanor except those offe nses that are classified as infrac tions.” Cal. Penal Code § 17(a) (1989). Possession of methamphetamine violates the California Hea lth and Safety Code §§ 11377(a) and 11055(d)( 2). I t is punishable “by imprisonment in a county jail for a period of not more than one y ear or in the state prison.” Cal. Hea lth & Safety Code 11377(a) (1997). S u ch offe nses under California law are commonl y referr ed to as “wobbler s,” since the trial court’s decision on the sentenc e imposed is dispositi ve as to whether the offense qualifies as a felony or a misdemeanor. See U nited States v. Boumelhe m , 339 F.3d 414, 426 (6th Cir. 2003) (citing Calif ornia v. Powell , 212 C al

. Rptr. 454 (1985))

. Section 17(b) of the California Penal Code define s under what circ umstances a wobbler offe nse is a misdemea

nor: (b) When a crime is punishable, in the discretion of the court, by imprisonment in the state prison or by fine or imprisonment in the county jail, it is a misdemeanor for all purposes unde r the following circ umstances: (1) After a judgme nt imposing a punishment other than imprisonment in the state prison.

. . . (3) When the court g rants probatio n t o a defe ndant without imposit ion of sentenc e and at the time of g ran t i n g probation, or on application of the defe ndant or probation office r there afte r, the court decla res the offe nse to be a misdemea

nor. Cal. Penal C ode § 17(b)( 1), (3). “The o ff en s e i s reg arde d as a felony until a judgment i s enter ed, except wher e the court decla res otherwise.” Boumelhe m , 339 F.3d at 426 (citing People v. Soto , 212 Cal. Rptr. 696 (Cal. C t. App. 1985)); accord People v. Banks , 348 P.2d 102,112 (C al

. 1 9 5 9). An -18-No. 10-5253, United States v. Vince nte Corona

order sentenc ing a defe ndant to probation and suspending the proce eding s afte rwa rd does not equate to a misdemeanor judgme nt under § 17(b)( 1). See United States v. Qualls , 108 F.3d 1019, 1022 (9th Cir. 1997); United States v. Hagge rty , 85 F.3d 403, 406- 07 (8th Cir. 1996). This court is not unfamiliar with the law surrounding wobblers. Twice , criminal defe ndants have appea led their convictions arg uing that a district court err ed when it cons t rued a criminal offe nse as a felony

under Califor

nia’s pena l code r ather

than a misdemeanor. See United States v. Robinson , 390 F.3d 853, 879 (6th Cir. 2004); Boumelhe m , 339 F.3d at 426. On both occa sions, the court disag ree d. I n Boumelhe m , the cour

t review ed whe ther a

n offe nse wa s a fe lony

or misdemeanor

under California’s law on wobblers. There , a defe ndant pleade d nolo contende re to char g es of g rand theft in the California’s Superior Court. Boumelhe m , 339 F.3d at 423. The sentenc ing court suspended the proce edings an d en t ere d an order for felony probation. Id

. at 426. The classification of the

ear lier offe nse beca

me an issue when a fede ral district court conclude d the defe ndant was a felon for the purposes of 18 U.S.C. § 922(g ). Id

. at 425. On appea l, this court ruled that entry of a probation order did not qualify as a judgme nt und er § 17(b)( 1) of the California Penal Code, and there fore classifica tion as a misdemeanor was unjustified. Id . at 426 (c iting United St ates v. Robinson , 967 F.2d 287, 293 (9th Cir. 1992)). The court then found misdemeanor trea tment under § 17(b)( 3) was also improper wher e the California court did not decla re on the re co rd t h e offe nse to be a misdemeanor. Id

. at 426-27. Boumelhe m was reaf firm ed a y ear later when t he court ag ain found

a felo n y co n v iction under § 17 of the California Penal Code wher e the defe ndant enter ed a nolo

-19-No. 10-5253, United States v. Vince nte Corona

contende re plea, sentenc e was imposed, and probation was order ed. Robinson , 390 F.3d at 879-80 (re viewing whether

a def endant ha d a prior f

elony conviction under

§ 922(g )). Corona’s c ircumstance s differ littl e fr om the fac ts reviewe d in Boumelhe m and Robinson

. Following his plea of g uilty , the state co u rt kept jurisdiction over the matter, enter ed an order of probation, and suspended the proce eding s. Under these circ umstances, the California court did not enter a misdemeanor judgme nt. See Robinson , 390 F.3d at 879-80; Boumelhe m , 339 F.3d at 426-27. Be cause the 1998 Conviction did not wobble betwee n a felony and misdemeanor, the district court

corr ectly conclude d the 1998 Conviction qualified as a felony conviction under

California law

. I n a l ast-ditch eff

ort to avoid enhanc ement under §§ 841 and 851, betwee n his sentenc in g hear ings on November 17, 2008 and Marc h 30, 2009, Corona petitioned the L os Ang eles Superior Court to reduc e the 1998 Convic t i o n from a felony to a misdemeanor under § 17(b)( 3) of the C al ifornia Penal Code. The Superior Court oblige d and amende d the felony count for the 1 9 9 8 Conviction to a misdemeanor. He now ar g ues that the Superior Court’s eleve nth-hour re branding of the 1998 Conviction prec luded the district court from trea ting it as a felony drug conviction during his sentenc ing. Corona is incorre ct. I n Boumelhe m , this court indicated that for favor able sentenc ing
trea tment, any rec lassification from felony to misdemeanor under § 17 of the California Penal Code

was require d to take place “at the time [t he defe ndant] took the actions that would form the basis of his fede ral conviction.” Boumelhe m , 339 F.3d at 427. Since the California Superior Court did not alter the 1998 Conviction until well afte r the conspirator ial activities that are the foundation of his conviction, the district cour t was justified in enhanc ing his sente nce.

-20-No. 10-5253, United States v. Vince nte Corona

2. 1987 Conviction The district court found that in 1987, Corona was convicted of a felony under California law for t h e s al e o r t ranspor

tation of coca ine. Neither party contests that a conviction for the sale or transporta tion of coca ine would permit enhanc ement of Corona’s sentenc e. See Cal. He a lth & Safety C o d e § 11352(a) (1988) (punishable by a maxi mum term of imprisonment of three , four, or fiv e y ear s). Rather, Corona challeng es the enhanc ement of his sentenc e under §§ 841 and 851 beca use the district court used unreliable forms o f evidenc e, the Gover nment did not establish a final conviction bey on d a rea sonable doubt, and the California Superior Court disposed of char g es in 1987 without issui ng a fina l conviction. On re view, we find Corona is incorr ect on a ll counts. Corona attacks the ty

pe of evidenc e the district court relied on, specific ally exhibi ts from the Municipal Court of California and the cer tified minute entries from the S u p er i o r Court. First, he ques t i o ns the introduction of exhibi ts from the Municipal Court of California, in particula r the
t ra n s cript of his g uilty plea on September 22, 1987, as evidenc e of the exis tence of the 198 7 Conviction. Since a Municipal Court ma y only take a defe ndant’s plea of g uilty and then cer tify it for consideration by the Superior Court, Cal. Penal Code § 859a(b) , Corona say s the plea transcr ipt from the Municipal Court cannot prove the Superior Court acc epted the plea and rende red judgme nt. Wit hout a copy of the transcr ipt of the Superior Court plea colloquy , he insists the Gov er n m en t cannot show a final conviction bey ond a rea sonable doubt. Second, Corona attests that the minute entries from the Superior Court are inadequa te to show a final judgme nt of conviction occur red since they do not offe r an ad eq u ate indicia of reliability

. He seeming ly advocates for a brig ht-line rule requiring the Gover

nment to produce the transcr ipt of the plea hear ing as conclusive proof of a final -21-No. 10-5253, United States v. Vince nte Corona

criminal judgme nt and a g ener al bar ag ainst admitting minute entries for enhanc ement under § 841 beca use of their

inhere nt unreliability . Both of the se ar g uments are unconvincing

. Corona ini t i al l y runs afoul of the gene ral propositi on that when it comes to sentenc ing, “a judge may appropr iately conduct an inquiry broad in scope , larg ely unlimit ed either

as to the ki nd of informa tion he may

consider, or

the source from which it may come.” United States v. Tuck er , 404 U.S. 443, 446 (1972) (citations omitted). I n consid er i n g wh at is admissible evidenc e for § 841(b)( 1)(A) sentenc e enhanc ements, the district court “‘ma y consider rele vant information without reg ard to its admissibili ty under the rules of evidenc e applicable at trial, provided t h a t t he information has sufficient indicia of reliabilit y to support its probable accurac y .’” United States v. Pratt , 553 F.3d 1165, 1170 (8th Cir. 2009) (quoting U.S .S.G. § 6A1.3(a )) ( emphasis in orig inal). Courts r outinely acc ept transcr ipts fr om se ntencing s and minute e ntries as e vidence in a var iety of

s en t ence-e nhance ment scena rios. See W

illiams , 616 F.3d at 766-67 (minute entries used fo r enhanc ement under 21 U.S.C. § 841(b)( 1)(A) ); Snellenb e r ger , 548 F.3d at 701-02 (district court may rely on minute entries from California state courts to show past offe nse was a crime of violence for the purposes of U.S.S.G. § 4B1.1( a)) ; see also Chisom , 249 F. App’x at 410-11 (minute entries used
to show defe ndant qualified a s an Arme d Caree r Criminal under 18 U.S.C

. § 924(e) and U.S.S .G. § 4B1.4)

. The district court did not err in acc epting the minute entries and Municipal Court rec ords into evidence

. Much as with the 1998 Conviction, Corona a rg ues there was inade quate pr oof to show the proce eding in the California Superior Court ended in a f

inal felony drug conviction as require d by § 841. He states the transcr ipt from his g uilty plea is of dubious value since a final conviction cannot -22-No. 10-5253, United States v. Vince nte Corona

arise out of the Municipal Cour t i n C alifornia. He also say s the minute entries are insufficient to prove be y ond a re asonable doubt a final judg ment was e ntere d in the Superior Court. The Gover

nment introduced a cer

tified copy of the felony criminal complaint, a cer tified copy of the Municipal Court transcr ipt of Corona’s g uilty plea, a cer tified copy of the minute entry for that g uilty plea, and a cer tified copy of the “Certific ate and Orde r of the Mag istrate” enter ed by the state mag istrate judge confirming Corona’s g uilty plea. Even if a Municipal Court in California
cannot enter the final judgme nt of conviction, these documents are evide n ce of Corona’s later conviction and judgme nt in the Superior Court. The Gover nment also produce d the Su perior Court’s Report For an I ntermedia

te Sentence or Other Sentence , and a minute entry documenting Corona’s ch an ge o f plea. Collectively , the documents offe r definitive proof Corona pleade d g uilty t o a violation of California’s Hea lth and Safety Code, was sentenc ed on November 6, 1987, and the imposit ion of the sentenc e was suspended. They ar e further corr oborate d by the post-conviction exhibi ts revoking and then terminating Corona’s p ro b ation. Take n in the agg reg ate, the evidenc e constituted an ade quate f

oundation for the district c ourt to enhanc e Corona’ s sentence

. Corona claims that no final judgme nt wa s en t er ed in the 1987 Conviction beca use the Superior Court termi n at ed h i s probation and dismiss ed the case under California Penal Code § 1203.3. The issue for this section is whether an order of probation and the suspension of proce eding s followed by no notice of appea l can con s t i t u t e a p ri or conviction within the meaning of § 841? Thoug h Corona asser

ts this alterna tive sentenc ing does not meet the fede ral test for finality , the 1987 Conviction is final for § 841 purpos es u n d er t h e same logic as the 1998 Conviction. Corona was char g ed and pleade d g uilty to a felony drug offe nse. The Superior Court suspended the proce eding s -23-No. 10-5253, United States v. Vince nte Corona

and order ed three y ear s of probation rathe r than incar cer ation. California’s statutes provided Corona

an avenue for appea l, which he decide d ag ainst. See Cal. Penal Code § 1237(a)

. Since a conviction is final under fede ral law wher e the time for taking a direc t appea l has expired, see Miller , 434 F.3d
at 823; United States v. Soto , 8 F. App’x 535, 541 (6th Cir

. 2 0 0 1 ), the termination of Corona’s probation and the subsequent dismiss al are irrele vant to the deter mination of finality under fede ral law. C. Drug quantity determ ination L astly , C o ro n a states the district court err ed when it conclude d it was bound by the jury ’s finding of more than five kilogr ams as the drug quantity for the conspirac y count. He proposes that
t h e district court was permitted to ignor e the specific quantity deter minations by the jury an d t h e amount alleg ed in the indictment. This arg ument is direc tly ref uted by this court’s prior ruling s. See ,
e. g . , Un i t ed States v. Manns , 277 F. App’x 551, 559 (6th Cir. 2008) (a defe ndant’s arg ument o f improper sentencing was “fore closed” since the distri ct co u rt based its sentenc ing on the quantit y of drug s the jury decide d upon); United States v. Ricke tts , 317 F.3d 540, 545 (6th Cir. 2003) (“The district court cannot ignor e the jury ’s finding s as to drug quantity unless there is insufficient evidenc e to support those finding s.” (citing United States v. Flowal , 234 F.3d 932, 936 (6th Cir. 2000)))

. The

case Corona ci t es , United States v. Cox , 565 F.3d 1013 (6th Cir. 2009), was a bench trial and ther efor e the deter

mination of the minimum amount of coca ine attributable to the defe ndant was made by the trial judge

. Her e, the district court corr ectly d ef er red to the jury ’s drug quantity deter mination.

-24-No. 10-5253, United States v. Vince nte Corona

CONCLUSION The district court did not err with its decisions to admit Hug hes’s s t at ements at trial or sentenc e Corona to life imprisonment. For the afor ementioned rea sons, the district court’s ruling s

are AF F IRMED

.

-25-