FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

No. 03-10711 Plaintiff-Appellee,

D.C. No.

v.  CR-03-00176-RLH

HECTOR CIRINO,

OPINION Defendant-Appellant. 

Appeal from the United States District Court

for the District of Nevada

Roger L. Hunt, District Judge, Presiding

Argued and Submitted

November 2, 2004—San Francisco, California

Filed August 15, 2005

Before: Betty B. Fletcher, Sidney R. Thomas, and

Carlos T. Bea, Circuit Judges.

Per Curiam Opinion

10639
COUNSEL

Jason Carr, AFPD, Las Vegas, Nevada, for appellant Hector

Cirino. 

UNITED STATES v. CIRINO 10641
Timothy S. Vasquez, AUSA, Las Vegas, Nevada, for the

appellee. 

OPINION

PER CURIAM: 

Defendant-Appellant Hector Cirino appeals the sentence

imposed by the district court, which included imposition of a

career-offender sentence based on prior felony convictions

from crimes committed in Puerto Rico. Specifically, Cirino

contends that because Puerto Rico is not a state, his prior

Puerto Rican felony convictions are not “prior felony convictions of . . . a crime of violence” “under federal or state law”

for purposes of the Sentencing Guidelines’ “career offender”

guideline. U.S. SENTENCING GUIDELINES MANUAL § 4B1.1(a)

and § 4B1.2(a) (2002). We have jurisdiction pursuant to 28

U.S.C. § 1291 and 18 U.S.C. § 3742(a). We hold that prior

Puerto Rican convictions may constitute “prior felony convictions” for purposes of Guideline § 4B1.1(a). Nevertheless, we

will follow procedures set forth in United States v. Ameline,

409 F.3d 1073 (9th Cir. 2005) (en banc), to determine

whether a limited remand is appropriate in this case. 

I.

On April 1, 2003, Cirino and co-defendant Ivan GonzalezCorporan robbed a Silver State Bank in Las Vegas, Nevada.

They were soon arrested, and after a three-day trial, a jury

convicted both men of armed bank robbery, possession of a

firearm during and in relation to a crime of violence, and aiding and abetting. The district court judge then sentenced both

men as “career offenders” under the Sentencing Guidelines.

In sentencing Cirino, the court relied on three prior careeroffender predicate convictions, two of which were from the

Commonwealth of Puerto Rico. Cirino was then sentenced to

10642 UNITED STATES v. CIRINO
276 months for the armed robbery conviction and 84 months

for the firearm-possession conviction, to be served consecutively. 

The sole issue Cirino raises on appeal is the applicability of

his Puerto Rican Commonwealth convictions in the determination of his sentence as a “career offender” for the current

offense. 

II.

The district court’s interpretation and application of the

Sentencing Guidelines are reviewed de novo. United States v.

Bynum, 327 F.3d 986, 993 (9th Cir. 2003). Specifically, the

district court’s interpretation of the Guidelines’ career

offender provisions is also reviewed de novo. United States v.

Shumate, 329 F.3d 1026, 1028 (9th Cir. 2003).1

[1] Under the now-advisory Guidelines, an individual may

be sentenced as a career offender if he or she was at least

eighteen years old at the time he or she committed the instant

offense, the offense is a felony that qualifies as a crime of violence or controlled substance offense, and the offender has

two or more prior felony convictions for crimes of violence

or controlled substance offenses. U.S. SENTENCING GUIDELINES

MANUAL § 4B1.1(a) (Nov. 2002).2 Guideline § 4B1.2(a)

1As district courts must consider the Guidelines in sentencing, albeit as

advisory, United States v. Booker, 125 S. Ct. 738, 767 (2005), we reach

the issue of whether the district court correctly interpreted and correctly

applied the Guidelines. 

2Guideline § 4B1.1 was promulgated following the enactment of the

Sentencing Reform Act of 1984. Specifically, 28 U.S.C. § 994(h) provided

that recidivists would receive sentences “at or near the maximum term

authorized for categories of defendants” where the defendant is at least

eighteen years old and “has been convicted of a felony” that is a crime of

violence or a violation of section 401 of the Controlled Substances Act,

21 U.S.C. § 841, sections 1002(a), 1005, and 1009 of the Controlled Substances Import and Export Act, 21 U.S.C. §§ 952(a), 955, and 959, or the

Maritime Drug Law Enforcement Act, 46 U.S.C. App. § 1901 et seq., and

“has previously been convicted of two or more [such] felonies.” 28 U.S.C.

§ 994(h). The text of the statute contains no jurisdictional limitation on the

prior felonies that may be used to enhance sentences under § 994(h). 

UNITED STATES v. CIRINO 10643
defines a “crime of violence” for purposes of § 4B1.1 as “any

offense under federal or state law, punishable by imprisonment for a term exceeding one year” that involves the use,

attempted use, or threatened use of physical force against the

person of another; that is burglary of a dwelling, arson, or

extortion; or that involves the use of explosives or a serious

potential risk of physical injury to another. Id. § 4B1.2(a).

Guideline § 4B1.2 also incorporates the definitions and

instructions for computing criminal histories provided in

§ 4A1.2. Id. § 4B1.2 cmt. n.3. Guideline § 4A1.2(o), like

§ 4B1.2(a), states that a felony offense includes “any federal,

state, or local offense punishable by . . . a term of imprisonment exceeding one year,” while Guideline § 4A1.2(h)

expressly excludes “foreign convictions.” 

[2] The issue of whether Puerto Rican convictions may be

counted as predicate convictions for purposes of determining

career offender status is a novel one in the Ninth Circuit.

However, two cases from the First Circuit, which has appellate jurisdiction over cases from the District of Puerto Rico,

strongly suggest that Puerto Rican convictions may be taken

into account. See United States v. Torres-Rosa, 209 F.3d 4

(2000); United States v. Morales-Diaz, 925 F.2d 535 (1991).

In both cases, the defendants raised the issue for the first time

on appeal. The First Circuit thus reviewed the sentences for

plain error. Torres-Rosa, 209 F.3d at 8; Morales-Diaz, 925

F.2d 540. We nevertheless find the First Circuit’s reasoning

in these cases persuasive. In rejecting the notion that Puerto

Rican convictions should not be counted as prior felony

offenses, the First Circuit stated: 

[The defendant in Morales-Diaz] “simply asserts the

syllogism that (1) to qualify under the career

offender guideline, the prior felony offenses must be

state or federal offenses; (2) Puerto Rico is not a

state; and (3) therefore his Puerto Rico conviction is

not a prior felony offense under the career offender

guideline.” We found [in Morales-Diaz] that this syl10644 UNITED STATES v. CIRINO
logism “completely ignores the body of case law recognizing that Congress has accorded the

Commonwealth of Puerto Rico ‘the degree of autonomy and independence normally associated with

States of the Union. . . . .’ ” Accordingly, we concluded that, because the appellant had not shown

“that the Sentencing Commission meant to exclude

felony convictions in Puerto Rico Commonwealth

Courts for enhancement purposes,” no plain error

inhered. 

Torres-Rosa, 209 F.3d at 8 (citing Morales-Diaz, 925 F.2d at

540) (citations omitted) (second alteration in original); cf.

United States v. Acosta-Martinez, 252 F.3d 13, 17-20 (1st Cir.

2001) (acknowledging that Puerto Rico is technically not a

state, yet holding that the Federal Death Penalty Act applied

to crimes committed in Puerto Rico). The First Circuit also

routinely has upheld career offender sentences supported by

Puerto Rican convictions. United States v. Colon-Torres, 382

F.3d 76, 81 n.5 (1st Cir. 2004) (career offender sentence

imposed based on three Puerto Rican convictions, without the

“state” issue presented); United States v. De Jesus Mateo, 373

F.3d 70, 73-74 (1st Cir. 2004) (same).3

[3] Indeed, the First Circuit has treated Puerto Rico as a

“state” in numerous other contexts. See, e.g., Fred v. Roque,

916 F.2d 37, 38-44 (1st Cir. 1990) (“state” for purposes of

sovereign immunity); United States v. Lopez Andino, 831

3We note without deciding that Cirino’s argument presumably would

apply with equal force to convictions under the laws of the District of

Columbia or the Virgin Islands, neither of which are states. But the D.C.

Circuit and the Third Circuit, which respectively have appellate jurisdiction of appeals from the District of Columbia and the District of the Virgin

Islands, have likewise upheld enhanced sentences in cases wherein the

defendants were sentenced as career offenders pursuant to U.S.S.G.

§§ 4B1.1-2 on the basis of prior convictions under the laws of those districts. See, e.g., United States v. Thomas, 361 F.3d 653 (D.C. Cir. 2004);

United States v. John, 936 F.2d 764 (3d Cir. 1991). 

UNITED STATES v. CIRINO 10645
F.2d 1164, 1168 (1st Cir. 1987) (“state” for purposes of double jeopardy); Cordova & Simonpietri Ins. v. Chase Manhattan Bank, 649 F.2d 36, 38 (1st Cir. 1981) (“state” for

purposes of Sherman Act); see also Mangual v. Rotger-Sabat,

317 F.3d 45, 53 n.2 (1st Cir. 2003) (residents of Puerto Rico

are protected by the First Amendment). Congress, too, has

determined that Puerto Rico is to be treated as a “state” for

purposes of diversity jurisdiction. 28 U.S.C. § 1332(e); see

also U.S.I. Properties Corp. v. M.D. Constr. Co., 230 F.3d

489, 499-500 (1st Cir. 2000) (as with states, diversity jurisdiction does not exist when Puerto Rico itself is a party). Finally,

the Supreme Court has held that the test for federal preemption of Puerto Rican statutes is the same as that for state statutes. Puerto Rico Dept. of Consumer Affairs v. Isla Petroleum

Corp., 485 U.S. 495, 499 (1988). 

[4] Likewise, as matter of policy, we have good reason to

recognize Puerto Rican Commonwealth convictions on a par

with convictions from the fifty states. The procedural protections afforded criminal defendants in the United States Constitution have been incorporated nearly verbatim into the

Puerto Rican Constitution. P.R. CONST. art. II, §§ 7, 10, 11.

Habeas proceedings are available in Puerto Rican courts to

challenge convictions alleged to be in violation of the United

States Constitution. 34 P.R. LAWS ANN. AP. II, R. 192.1

(2001). Direct review of such convictions is available in the

United States Supreme Court by writ of certiorari. 48 U.S.C.

§ 864. Further, persons challenging a Puerto Rican conviction

on the grounds that the conviction violates the United States

Constitution may petition the federal District Court for the

District of Puerto Rico for a federal writ of habeas corpus.

Cruz-Sanchez v. Rivera-Cordero, 835 F.2d 947, 948 (1st Cir.

1987); see also Figueroa v. Rivera, 147 F.3d 77, 81 (1st Cir.

1998) (holding that § 1983 action was barred under Heck v.

Humphrey, 512 U.S. 477 (1994), as habeas is the exclusive

means by which to challenge collaterally an unconstitutional

Puerto Rican conviction). 

10646 UNITED STATES v. CIRINO
[5] In short, we see no legal or policy reason to treat Puerto

Rican Commonwealth convictions any differently from the

way we treat state convictions. We hold that it was not error

for the district court to count Cirino’s Puerto Rican convictions as “prior felony convictions” in applying Guideline

§ 4B1.1(a). In other words, we hold that Puerto Rico may be

considered a “state” when applying Guideline § 4B1.1(a).

III.

[6] Although we find no error in the district court’s use of

Cirino’s past Puerto Rican convictions in enhancing his sentence, we may remand this case for re-sentencing in light of

United States v. Booker, 125 S. Ct. 738 (2005). We have

recently concluded that even absent a Sixth Amendment violation, “either the defendant or the government may raise the

nonconstitutional error that a sentence was erroneously

imposed under guidelines believed to be mandatory.” United

States v. Ameline, 409 F.3d 1073, 1084 (9th Cir. 2005) (en

banc). We have also concluded that the “limited remand”

approach outlined in Ameline is “proper in all pending direct

criminal appeals involving unpreserved Booker error, whether

constitutional or nonconstitutional.” United States v. MorenoHernandez, No. 03-30387, 2005 WL 1560269, at *9 (9th Cir.

July 5, 2005) (emphasis in original). We have queried the parties as to whether a limited remand is sought. Cirino has

responded in the affirmative. Because we agree with Cirino

that we are unable to determine whether the district court

would have imposed the materially same sentence had it

known the guidelines were advisory, we will remand Cirino’s

sentence in accordance with Ameline. Id.

AFFIRMED IN PART AND REMANDED.

UNITED STATES v. CIRINO 10647