FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

No. 06-50169 v.

M D.C. No. ICHAEL LEE SNELLENBERGER, aka 

Michael Lee Cutter, Michael Lee CR-05-00064-AHS

Davidson, Robert Eugene Frehly, OPINION

Cutter Snellenberger, “Cutter”,

Defendant-Appellant. 

Appeal from the United States District Court

for the Central District of California

Alicemarie H. Stotler, District Judge, Presiding

Argued and Submission Deferred February 6, 2007

Submitted February 13, 2007

Pasadena, California

Filed April 3, 2007

Before: Warren J. Ferguson, Eugene E. Siler, Jr.,* and

Michael Daly Hawkins, Circuit Judges.

Opinion by Judge Ferguson;

Concurrence by Judge Hawkins

*The Honorable Eugene E. Siler, Jr., Senior United States Circuit Judge

for the Sixth Circuit, sitting by designation. 

3839
COUNSEL

Gail Ivens, Deputy Federal Public Defender, Los Angeles,

California, for the defendant-appellant. 

Anne C. Gannon, Assistant United States Attorney, Santa

Ana, California, for the plaintiff-appellee. 

OPINION

FERGUSON, Circuit Judge: 

This case presents the question of whether a minute order,

coupled with a charging document, may be sufficient under

Shepard v. United States, 544 U.S. 13 (2005), to establish a

prior crime of violence for purposes of sentence enhancement.

We have previously noted that a minute order is “not a judicial record that can be relied upon” to establish the nature of

a prior conviction. United States v. Diaz-Argueta, 447 F.3d

1167, 1169 (9th Cir. 2006). We now explicitly so hold. 

FACTUAL AND PROCEDURAL BACKGROUND

In March 2005, Michael Lee Snellenberger

(“Snellenberger”) was indicted for unarmed bank robbery

pursuant to 18 U.S.C. § 2113(a). He pled guilty to the charge

in October of that year. At sentencing, the government

requested a sentence enhancement under the United States

Sentencing Guidelines Manual (“Guidelines” or “U.S.S.G.”),

based on Snellenberger’s status as a “career offender.”

U.S.S.G. §§ 4B1.1, 4B1.2 (2002). In 1991, Snellenberger had

pled nolo contendere to burglary under section 459 of the Cal3842 UNITED STATES v. SNELLENBERGER
ifornia Penal Code (“Cal. Penal Code § 459” or “§ 459”). The

government asserted that this prior crime qualified as one of

violence under the Guidelines. 

The District Court agreed and determined that, in combination with another prior offense,1

 the § 459 conviction qualified

Snellenberger as a career offender. This finding raised his

guidelines offense level from 19 to 29 and increased the advisory guideline range for his sentence from 63-78 months to

151-188 months. The court imposed a sentence of 151 months

imprisonment, a special assessment of $100, and a three year

term of supervised release with various conditions. Snellenberger has appealed the sentencing court’s reliance on the

career offender provisions of U.S.S.G. § 4B1.2. 

STANDARD OF REVIEW

We review de novo the lower court’s “interpretation and

application” of the Sentencing Guidelines. United States v.

Franklin, 235 F.3d 1165, 1168 (9th Cir. 2000); see United

States v. Cantrell, 433 F.3d 1269, 1279 (9th Cir. 2006) (no

change after United States v. Booker, 543 U.S. 220 (2005)).

We also review de novo the determination of the defendant’s

career offender status. United States v. Kelly, 422 F.3d 889,

891-92 (9th Cir. 2005). 

DISCUSSION

[1] A court may deem a defendant a career offender eligible

for a sentence enhancement under the Guidelines if the defendant has “at least two prior felony convictions of either a

crime of violence or a controlled substance offense,” and was

at least eighteen years old at the time he or she committed a

1Snellenberger does not contest that he has a history of one prior offense

that falls under U.S.S.G. §§ 4B1.1, 4B1.2. He challenges only the District

Court’s finding that his 1991 conviction should count as a second prior

felony. 

UNITED STATES v. SNELLENBERGER 3843
third felony that was also a “crime of violence or a controlled

substance offense.” U.S.S.G. § 4B1.1(a), (b). The Guidelines

define a “crime of violence” as “any offense under federal or

state law, punishable by imprisonment for a term exceeding

one year, that [ ] has as an element the use, attempted use, or

threatened use of physical force against the person of another,

or [ ] is burglary of a dwelling . . .” or another offense enumerated or described in this provision. U.S.S.G. § 4B1.2(a)

(emphasis added). The dispute in this case focuses on whether

Snellenberger’s 1991 burglary conviction qualifies as burglary of a dwelling.2

[2] Burglary under Cal. Penal Code § 459 is defined more

broadly than burglary of a dwelling. The California statute

includes, inter alia, burglary of a shop, warehouse, barn, stable, train car, aircraft, mine, or underground portion of a

mine. Cal. Penal Code § 459.3 Therefore, Snellenberger’s

§ 459 conviction does not necessarily imply that he pled to

burglary of a dwelling, and it cannot provide the basis for

concluding that he is a career offender qualified for a sentence

enhancement. See, e.g., Franklin, 235 F.3d at 1170 (“We have

previously and unequivocally held that California Penal Code

section 459 is far too sweeping to satisfy the Taylor definition

of generic burglary.”) (referring to definition even broader

than “crime of violence” under U.S.S.G. § 4B1.2(a)). 

2On appeal, Snellenberger does not contest the categorization of the

instant offense as a crime of violence. 

3The complete statutory definition of burglary is as follows: 

Every person who enters any house, room, apartment, tenement,

shop, warehouse, store, mill, barn, stable, outhouse or other

building, tent, vessel, . . . floating home . . . railroad car, locked

or sealed cargo container . . . trailer coach . . . any house car . . .

inhabited camper . . . vehicle as defined by the Vehicle Code,

when the doors are locked, aircraft . . . or mine or any underground portion thereof, with intent to commit grand or petit larceny or any felony is guilty of burglary. . . . 

Cal. Penal Code § 459. 

3844 UNITED STATES v. SNELLENBERGER
In Taylor v. United States, 495 U.S. 575, 600 (1990) (interpreting 18 U.S.C. § 924(e) but relying on broader rationale),

the Supreme Court held that sentencing courts must generally

assess prior convictions using a “formal categorical approach,

looking only to the statutory definitions of the prior offenses,

and not to the particular facts underlying those convictions.”

See also United States v. Becker, 919 F.2d 568, 570 (9th Cir.

1990) (applying Taylor rule concerning Armed Career Criminal Act to section 4B1.1 of the Sentencing Guidelines). The

Court explained that a fact-based approach would contravene

Congressional intent and create “practical difficulties and

potential unfairness,” as it could lead to mini-trials concerning

the factual bases for prior convictions. Taylor, 495 U.S. at

601. Taylor did provide an exception to the categorical rule

for “a narrow range of cases where . . . the charging paper and

jury instructions actually required the jury to find all the elements of [the narrower, qualifying offense] in order to convict.” Id. at 602; see Shepard, 544 U.S. at 17 (describing

Taylor exception). Where the jury instructions in combination

with the charging document demonstrated that the jury necessarily had to find all the factual elements of the qualifying

offense, the sentencing court could “go beyond the mere fact

of conviction” to reach the logical conclusion that the defendant had committed the qualifying offense. Taylor, 495 U.S.

at 602. 

[3] In Shepard, 544 U.S. at 19, the Supreme Court applied

the rationale of Taylor to a prior conviction resulting from a

plea. Shepard held that in pleaded cases, the “closest analog”

to jury instructions is “the statement of the factual basis for

the charge, shown by a transcript of plea colloquy or by written plea agreement presented to the court, or by a record of

comparable findings of fact adopted by the defendant upon

entering the plea.” Id. at 20 (internal citation omitted). The

Court ruled that a sentencing court’s inquiry into the facts of

a prior crime cannot include consideration of complaint applications or police reports, and instead “is generally limited to

examining the statutory definition, charging document, writUNITED STATES v. SNELLENBERGER 3845
ten plea agreement, transcript of plea colloquy, and any

explicit factual finding by the trial judge to which the defendant assented.” Id. at 16. 

In this case, Snellenberger maintains that the government

has provided insufficient evidence to establish that his 1991

burglary plea under Cal. Penal Code § 459 involved a crime

of violence. The government submitted at sentencing copies

of two documents from the convicting court: an information

and a minute order. The information lists factual allegations

and specifically charges Snellenberger with, inter alia, first

degree residential burglary in violation of Cal. Penal Code

§ 459. Under California law, burglary in the first degree necessarily encompasses all factual elements of “burglary of a

dwelling,” so if Snellenberger had pled guilty to this charge,

he would necessarily have admitted to burglary of a dwelling.

See Cal. Penal Code §§ 450, 460(a), (b). However, like any

charging document, the information is insufficient alone to

prove the facts to which Snellenberger admitted. See RuizVidal v. Gonzales, 473 F.3d 1072, 1078 (9th Cir. 2007);

United States v. Parker, 5 F.3d 1322, 1327 (9th Cir. 1993).

The government therefore relies heavily on the minute order,

which states that Snellenberger entered a nolo contendere plea

to “459 Penal Code (first degree).” 

[4] Snellenberger maintains that the sentencing court

should not have considered the minute order. We agree. To

establish that a defendant committed a prior crime of violence, the government must provide the sentencing court with

“the terms of a plea agreement or transcript of [a] colloquy

between [the] judge and defendant in which the factual basis

for the plea was confirmed by the defendant, or [ ] some comparable judicial record of this information.” Shepard, 544

U.S. at 26. As we previously recognized in Diaz-Argueta, 447

F.3d at 1169, a minute order is not a comparable judicial

record under Shepard.4

4We decided in Diaz-Argueta, 447 F.3d at 1169, that, under Shepard,

a minute order of the state court was “not a judicial record that c[ould] be

3846 UNITED STATES v. SNELLENBERGER
[5] A minute order is not sufficient because it does not contain “the factual basis for the plea [as] confirmed by the

defendant.” Shepard, 544 U.S. at 26. On the contrary, it contains no facts and no indication that it has even been shown

to the defendant. The one-page form simply provides a tiny

space in which to list the statute under which the defendant

has been convicted. Such a document cannot be considered

“comparable” to “a plea agreement or transcript of [a] colloquy between the judge and the defendant.” Id.5

[6] The government asserts that California evidentiary law

treats minute orders as accurate in the absence of substantial

evidence to the contrary, but this argument misses the point.

relied upon to prove” the felony status of a prior conviction under

U.S.S.G. § 2L1.2(b)(1)(A)(ii), but that Diaz-Argueta’s particular prior

offense was a felony as a matter of statutory interpretation. Ultimately, we

remanded the case because the sentencing court had failed to consider any

of the factors of 18 U.S.C. § 3553(a). Id. at 1170, 1171. 

5We recognize an apparent tension between Diaz-Argueta and two of

our cases concerning abstracts of judgments. Compare Diaz-Argueta, 447

F.3d at 1169 (minute orders are not judicial records under Shepard) with

United States v. Valle-Montalbo, 474 F.3d 1197, 2201-02 (9th Cir. 2007)

(abstract of judgment, coupled with charging document, may provide

“clear and convincing evidence” of prior conviction) and United States v.

Rodriguez-Lara, 421 F.3d 932, 949-50 (9th Cir. 2005) (quotation and

internal punctuation omitted) (abstract of judgment and charging document were not “too far removed from . . . a prior judicial record” and

therefore did not raise constitutional concerns under Apprendi v. New Jersey, 530 U.S. 466 (2000)). As none of these decisions clarified this circuit’s interpretation of comparable judicial records under Shepard, we take

the opportunity to do so in this opinion. See Valle-Montalbo, 474 F.3d at

1201-02 (neither citing Shepard nor addressing whether abstract of judgment is comparable judicial record); Diaz-Argueta, 447 F.3d at 2269 (noting without explanation that minute orders are not judicial records under

Shepard); compare Rodriguez-Lara, 421 F.3d at 950 (deciding constitutionality of increasing sentence based on abstract of judgment and charging document, and citing constitution-based, plurality portion of Shepard,

not majority portion that explicitly rested on statutory interpretation of

Guidelines (citing Shepard, 544 U.S. at 24)) with Shepard, 544 U.S. at 23

(“We are, after all, dealing with an issue of statutory interpretation.”). 

UNITED STATES v. SNELLENBERGER 3847
See Shepard, 544 U.S. at 22-23 (rejecting argument that documents could be considered reliable if uncontradicted). The

question is not whether the documents are admissible under

general rules of evidence, but whether they are adequate to

meet the government’s evidentiary burden of clearly and

unequivocally establishing the facts underlying a prior conviction so as to justify the enhancement of a criminal sentence. As the Supreme Court noted when ruling that

complaints and police reports could not be considered, the

defendant was never asked if the information contained in the

reports was true or accurately reflected his plea. Id. at 18. For

this same reason, a minute order cannot establish the factual

elements underlying a plea to a prior offense. 

[7] Any inquiry beyond the language of the convicting statute “must be narrowly construed” to implement Congressional intent and avoid endless evidentiary hearings concerning

prior offenses. Id. at 23 n.4. A sentence enhancement based

on facts underlying a prior conviction must rely on a judicial

record of those facts. Id. at 26. The government has submitted

no such record regarding Snellenberger’s § 459 conviction,

and the enhancement of his sentence was in error.

CONCLUSION

The District Court should not have considered a minute

order in ruling on whether Snellenberger’s conviction under

Cal. Penal Code § 459 involved burglary of a dwelling and

therefore a crime of violence. The government has failed to

meet its burden of demonstrating that Snellenberger qualified

as a career offender, eligible for a sentence enhancement

under the Guidelines. For the foregoing reasons, we

VACATE the decision below and REMAND for a new sentencing hearing.

3848 UNITED STATES v. SNELLENBERGER
HAWKINS, Circuit Judge, specially concurring: 

The majority quite properly holds that we are bound by this

court’s prior statement that a state court minute order is not

the type of judicial record we can rely on under Shepard v.

United States, 544 U.S. 13 (2005). See United States v. DiazArgueta, 447 F.3d 1167, 1169 (9th Cir. 2006). 

I write separately to clarify that we are not presented in this

opinion with the question of whether a minute order could be

used, together with a charging document, to satisfy the government’s burden of poof of the fact of a prior conviction,

where the charged crime categorically qualifies as a requisite

crime for purposes of sentencing enhancements. Presumably,

this would not present a problem: minute orders share many

similarities with abstracts of judgments, see United States v.

Navidad-Marcos, 367 F.3d 903, 909 (9th Cir. 2004), and our

court routinely permits the use of abstracts of judgments, coupled with a charging document, to satisfy this burden. See

United States v. Valle-Montalbo, 474 F.3d 1197, 1201-02 (9th

Cir. 2007) (“trial court may rely upon the abstract of judgment and charging document to conclude there is clear and

convincing evidence that the defendant had a qualifying conviction under U.S.S.G. § 2L1.2(b)(1)(A)”); United States v.

Rodriguez-Lara, 421 F.3d 932, 949-50 (9th Cir. 2005). I thus

disagree with the majority’s conclusion that there is “tension”

between Diaz-Argueta and these cases, majority opinion at n.

5, because Valle-Montalbo and Rodriguez-Lara did not rely

on the abstract of judgment to conduct a modified categorical

approach under Shepard/Taylor, but only relied on the document after concluding that the crime of conviction was categorically a requisite crime for sentencing enhancement

purposes. Thus, the only remaining issue was whether the

government established the fact of a prior conviction, and not

the nature of the conviction itself. 

The tension exists, in my view, as to whether we may consider these types of documents under Shepard when conductUNITED STATES v. SNELLENBERGER 3849
ing Taylor’s modified categorical approach. In the cases in

which we have disapproved the similar use of an abstract of

judgment, the abstract has revealed that the defendant pled to

a different crime than that in the charging document. See

Ruiz-Vidal v. Gonzales, 473 F.3d 1072, 1078-79 (9th Cir.

2007); Martinez-Perez v. Gonzales, 417 F.3d 1022, 1029 (9th

Cir. 2005); see also Navidad-Marcos, 367 F.3d at 908-09

(disapproving use of abstract alone to narrow conduct charged

in information). I agree that abstracts of judgment may not

independently establish a qualifying conviction, but I do not

believe our case law precludes their use altogether when conducting the modified categorical analysis, and especially not

when the abstract reveals the defendant pled to the same (narrower) crime as described in the charging instrument. 

I concur because I believe we are bound by Diaz-Argueta,

but the result may be that abstracts of judgments and minute

orders are treated differently in this circuit for purposes of

Shepard/Taylor. 

3850 UNITED STATES v. SNELLENBERGER