NOT RECOMMENDED F OR FUL L -TEXT PUB L I CATI ON File Na me: 13a0084n.06 Nos. 11-4342, 11-4378 UNI TED STATES COURT OF A PPEAL S FOR THE SI XTH CI RCUI T

UNI TED STATES OF AMERI CA, Plaintiff-Appellee ,
v. RI CARDO APODACA, (11-4342) FRANCI SCO FEL I X-F EL I X, (11-4378) Def endants-A

ppellants. ) ) ) ) ) ) ) ) ) ) ON APPEAL FROM THE UNI TED STATES DI STRI CT COURT FOR THE NORTHERN DI STRI CT OF OHI O

OPI NI ON

Be fore : COL E, DONA L D, Circuit J udg es; RUSSEL L , Senior District J udg e. *

DONAL D, Circuit J udg e. Ricardo Apodac a and Fr ancisc o Fe lix -F elix (“F elix ”) eac h pleade d g uilty to conspirac y to distribute coca ine and coca ine base

. B o th n o w a p p e al their sentenc es. Apodac a arg ues that his California conviction of assault with a deadly wea pon other than a firea

rm cannot be a predic ate for car eer offe n d er status. Fe lix claims that his prior conviction under California Hea lth and Safety C o d e (“ C ali fornia HSC”) 11359 cannot be a predic ate for car eer offe nder status beca

use the g overn m en t d id not prove that the offe nse is a controlled substance offe nse with Shepard documents, and t h at the district court did not indicate that it understood its discretion re g arding the value of his substantial assistance. F or the following rea sons, we af firm.

The Honora

ble Thomas B. Russell, United States Senior District J udg e for the Western * District of Ke ntucky , sitti ng by desig nation.Nos. 11-4342, 11-4378

United States v. Apodac a and Felix-F elix I. BACKG ROUND

After being char g ed in a mu l t i -c o u n t indictment arising out of a massive drug traff icking scheme , Apodac a pleaded guilty to conspirac y

to distribute cocaine and coc aine base, i n violation of 21 U. S

. C

. § 8 46. The plea prese rved Apodac a’s rig ht to appea l the district court’s decision of whether to sentence him as a ca

ree r off ender under U .S.S.G. § 4B1.1.

At Apodac a’s sentenc ing hear ing on November 29, 2011, the d i strict court considere d whether Apodac a’s two prior offe nses qualified him as a car eer offe nder unde r § 4B 1.1. The fir st prior offe nse was a 1998 Minnesota conviction for conspirac y to distribute methamphetamine. The second was a 2008 California conviction for assault with a deadly wea pon other than a firea

rm under California Penal Code § 245(a) (1). Apodac a arg ued that the California conviction was not a felony , and, thus , could not be a predic ate offense for care er offende r st atus. The dist rict co u rt d i s ag ree d beca use the offe nse is punishable by a term exceeding one y ear ; it sentenc ed Apodac a to 210 months imprisonment followed by ten y ear s of supervise d rele ase a nd a $100 spec ial assessment.

Fe lix was char g ed in the same indictme n t and he, too, pleade d g uilty to conspirac y to distribute coca ine and coca ine base, in violation of 21 U.S.C. § 846. As part of the plea deal, Fe lix waived the rig ht to appeal “ except as spec ifically rese rved” ; the rese rved e x ceptions include: (a) any punishment in excess of the statutory maxi mum; (b) any sentenc e to the extent it exceeds the g rea ter of any mandatory

minimum sentenc e or the maxi mum o f t h e s entenc ing rang e . . . found applicable by the Court; or (c) the Cour t ’s deter mination, if any , that defe ndant meets the cr i t eria for sentenc ing as a car eer offe nder unde r U.S.S.G. § 4B1.1.

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United States v. Apodac a and Felix-F elix His plea also rese rved the rig ht to appea l based on ineffe ctive assistance of counsel or prosec utorial misconduct. At his plea hear ing, the court explained the plea wa i v er i n detail and asked Fe lix whether he had revie wed the waiver car efully with his attorney , whether he understood the waiver , and whe ther he still wished to plead g uilty . To ea ch question, F elix responde d in the aff irmative.

At Fe lix ’s sentenc ing hear ing on Dec ember 9, 2011, th e d i s t rict court considere d whether Fe lix was a car eer offe nder under § 4B1.1 and whether to g rant a downwar d depar tu re . The Presentenc e I nvestig ation Report (“ PSR ”) indica ted that Fe lix had two rele vant prior convictions:

a 1999 C al i fo rn i a conviction for possession of marijuana for sale, in violation of California HSC 11359, and a 2001 California conviction for possession of a controlled substance for sale. The g overnme nt proved the 1999 conviction with the only documents ava ilable: a ca se sum mary from California, case “minutes” from California showing that Fe lix pleade d nolo contendre to violation of California H SC 11359, a criminal history repor t from L os Ang eles County , and an indictment. Fe lix arg ued that these documents wer e not sufficie nt under Shepard v. United States , 544 U.S. 13 (2005), to prove that t he 1999 conviction was not a simple possession conviction, and thus, he arg ued, this offe nse could not be a predic ate for car eer offe nder status. The g overnme nt responde d that the only way to violate California HSC 11359 was throug h possession of marijuana for sale and that this offe nse is cate g orica lly a controlled subst ance offe nse; additional documents wer e not

nece ssary . The district court found that the documents adequately proved that Fe lix was convicted of possession of marijuana for sale, that it is a controlled substance offe nse, and that Fe lix is a car eer offe nder under § 4B1.1. The court also g rante d the g overnme nt’s motion for a downwar d depar ture

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United States v. Apodac a and Felix-F elix for Fe lix ’s substantial assistance , p u rs uant to U.S.S.G. § 5K1.1, afte r a sidebar in which the g overnme nt explained the details of Fe lix ’s cooper ation. Wit h the reque sted three -leve l reduc tion, the new Guidelines rang e was 188-235 months. After consi d er i n g t h e n ature of the offe nse and Fe lix ’s acc eptanc e of responsibility , the court sentenc ed Fe lix to 188 months imprisonment followed by five y ear s of supervise d rele ase a nd a $100 spec ial assessment.

Both de fenda

nts appea led their sente nces a nd we c onsolidated the appe als.

II. ANALYSIS A. Apodaca’s Appeal of His Caree r Off

ender Status Apodac a challeng es t he dis trict court’s finding that he is a care er offende r u n d er U.S.S.G. § 4B1.1 on the g rounds t hat hi s California conviction for assault with a deadly wea pon other than

a firea rm is not a felony

. We revie w a district court ’s ru l i n g that a defe ndant is elig ible to be

s en t en ce d as a car eer offe nder de novo. United States v. Mee ks , 664 F.3d 1067, 1069 (6th Cir

. 2012); see also United States v. W ynn , 579 F.3d 567, 570 (6th Cir. 2009) (re viewing whether a prior conviction is a “c rime of violence” under § 4B1.1 de novo). We a lso r eview de novo questions of statutory interpre tation underly ing the elig ibilit y issue. United States v. Morris , 203 F.3d 423, 424 (6th Cir. 2000).

Under § 4B1.1( a), a

defe ndant is a ca

ree r off ender if:

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United States v. Apodac a and Felix-F elix (1) the defe ndant was at least eig hteen y ear s old at the time the defe ndant committed th e i n s t ant offe nse . . . , (2) the instant offe nse is a felony that is either a crime of violence or a controlled substance o ff ense; and (3) the defe ndant has at least two prior felony convictions of either a crime of v iolence or a controlled substance offe nse. There is no question that Apodac a has met the first and second prong s. T h e s o l e q u estion here is whe t h er h i s California conviction for assault with a deadly wea pon other than a firea

rm may be deeme d a prior f

elony conviction for pur

poses of this section. Apodac a’ s C alifornia conviction falls under California Penal Code § 245(a) (1), in which “[a]ny person who commits an assault upon the person of another with a deadly wea pon other than

a firea rm . . . shall be punished by imprisonment in the state prison for two, three , or four y ear s, or in a county jail f

or not e x cee ding one y ear .” C A L . P E N A L C O D E § 245(a) (1) (West 2012)

. When a sentenc ing court sentenc es a defe ndant pursuant to the last option, the offe nse is t re at ed as a misd em ea n o r under California law. C A L . P E N A L C O D E § 17(b) (West 2012) (making a crime a “misdemea

nor for all purposes” afte r a judgme nt imposing a sentenc e other than s t ate prison). I n California, this is termed a “wobbler ” offe nse beca use, in essenc e, the sent en ci n g j u dg e has the option of making the offe nse a felony or a misdemeanor, depending on the sentenc e imposed. See United State s v. B o umelhem , 339 F.3d 414, 425-26 (6th Cir. 2003). Apodac a contends that his convi ct ion was only a misdemeanor beca use the court chose to impose a sentenc e of 365 day s in county jail, making the conviction a misdemea nor “f or all purpose s.”

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United States v. Apodac a and Felix-F elix I n p r io r c ir c u

msta nces wher e we have dealt with California wobbler offe nses, we have lo o k e d to the designation under California lawto deter mine whether the offense was a mi sdemea nor or a felony

. See United States v. Robin s o n , 3 9 0 F.3d 853, 879-80 (6th Cir. 2004 ) ; United States v. Boumelhe m , 339 F.3d at 425-27. Howeve r, both Robinson and Boumelhe m involved a sentenc ing enhanc ement u nder 18 U.S.C. § 922, under which “any state offe nse classified by the laws of the State as a misdemeanor” are expressly excluded from the felony definition. See 18 U

. S.C. § 921(20). Her e, the applicable Guideline is quite differ ent. A “prior felony conviction” means a “prior adult fede ral or state conviction for an offense punishable by

. . . a term exceeding one y ear , regardless of whe ther such offe nse is spe cifica lly desig nated a s a felony and reg ardle ss of the actua l se ntence imposed.” U.S.S.G. § 4B1.2 cmt. 1 (empha sis added)

. The desig nat i o n o f the offe nse under California law and the actua l sentenc e imposed is irrele vant. The only rele vant question is whether the California of

fense is punishable by

a ter m exceeding one y ear . Apodac a arg ues the California statute eff ectively encompas s es t wo offe nses: one that is punishable by a longe r term in state prison and one that is punishable by county jail for a term “not exceeding one y ear .” See C A L . P E N A L C O D E § 245(a) (1). By selec ting the county jail option, he arg ues, the California

sentenc ing c ourt restric ted itself to a sente nce “ not e x cee ding one y ear ” and this is the equivalent of convicting him of an offe nse not punishable by a term exceeding one y ear . We find this to be a m i s reading of t he st atute. The statute encompa sses a si ng le offense: “assault with a deadly wea

pon . . . other than a firea rm.” Id

. That single offe nse “shall be punished by imprisonment

. . . for two, three or four y ear s or in a county jail for not exceeding one y ear .” Id

. The

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United States v. Apodac a and Felix-F elix statute provides for multipl e punishment options, not multipl e offe nse options. The single offe nse is punishable by

a ter m exceeding one y ear , and this satisfies § 4B1.1.

Even if it wer e appropriate for us to look more closely to t h e i n t ent of C alifornia law, i t is appar ent that Apodac a’s California offe nse is not a misdemeanor. Apodac a was not, as he contends,

s entenc ed to a misdemeanor sentenc e. Rather, he was sentenc ed to 365 day s in county j ai l , suspended, cre dit for 144 day s, and five y ear s of probation. Under California law, wher e a court suspends a sentence and order s probation, it is considered a conviction, but no judgme nt has been rende red. See People v. Esparza , 253 Cal. Ct. App. 2d 362, 364 (1967); see also United States v. Soto-Lara , 471 F. App’x 720, 722 (9th Cir. 2012); United States v. Robinson , 967 F.2d 287, 293 (9th Cir. 1992), abrogated in part on other grounds by Ortega-M endez v. Gonzales , 450 F.3d 1010, 1020 (9th Cir. 2006). Section 17(b) offe nses are reg arde d as felonies until a judgme nt is enter ed. People

v. Glee , 82 Cal. Ct. App. 4th 99, 103 (2000). Apodac a makes no arg ument to show that a judgme nt

was actua lly rende red, so it would not be considere d a mi s d emeanor even in California. Acc ording ly , the district court did not err in finding that Apodac a is a car eer offe nder under § 4B1.1.

C. F elix’s Appeal of

His Caree r Off

ender Status

Fe lix , too, challeng es the district court’s finding that he is a car eer offe nder under U.S.S.G. § 4B1.1. Fe lix arg

ues on app ea l t h at the g overnme nt did not adequately prove that his 1999 California conviction was a controlled substance offe nse, and, thus, this offe nse cannot be used as

a predic ate for § 4B1.1 car eer offe nder status. Specifica l l y , h e ar gu es that the case summary and

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United States v. Apodac a and Felix-F elix docket sheet the g overnme nt relied on wer e “non- Shepard documents,” which he claims is improper under Shepard v. United States , 544 U.S. 13 (200 5 ). The g overnme nt acknow ledg es that these documents do not sa tisfy Shepard , but it arg ues that it did not ha ve to pr ovide Shepard documents in this case beca

use Fe lix did not challeng e the fac t of the conviction and the statutory definition was adequate to deter

mine the n at u re of the offe nse. Ag ain, we revie w a defe ndant’s elig ibilit y to be sentenc ed as a

car eer offe nder de novo. Mee ks , 664 F.3d a t 1069.

We use a cate g orica l approa ch to deter mine whether a prior offe nse is a controlled substance offe nse. United States v. Galloway , 439 F. 3 d 3 20, 322 (6th Cir. 2006). This means that a court usually only need revie w the fac t of conviction and the statutory definition of the predic ate offe nse to deter mine whether it is a controlled substance offe nse. Id

. I f, howeve r, the rele vant statue does not provide a c lear

answe r, then the se ntencing court may consult other docume nts. Id . at 323.

I n Shepard , the Supreme Court endorse d the cate g orica l approa ch for deter mining whether

a prior conviction of burg lary was a violent felony under the ACCA, but allowed the sentenc ing court to rely on additional documents when the defe ndant was convicted under a non-g ener ic statute. 544 U.S. at 19-26. Appropria te documents include “the ch ar gi n g d o cu m ent, the terms of a plea ag ree ment or transcr ipt of colloquy

. . . in which the fac tual basis for the plea was confirme d by the defe ndant, or to some compar able judicial rec ord.” Id. at 26. I n the ACCA context, we have noted that Shepard documents are only appropr iate wher e “the crime at issue contains at least two cate g ories, at least one way of committing the of fense is a crime of violence, and at least one way of committing the offe nse is not.” United States v. Y oung , 580 F.3d 373, 385 (6th Cir. 2009)

. We - 8 -Nos. 11-4342, 11-4378

United States v. Apodac a and Felix-F elix have also held that Shepard applies to deter mining wh et h er a prior conviction is a controlled substance offe nse under § 4B1.1. Galloway , 439 F.3d at 323. For this analy sis, the court may rely

on Shepard documents if the convicting statute does not m ak e i t clear whether the defe ndant’s offe nse qualifies as a controlled subst ance offe nse. Id

. By nece ssary implication, this means that when the s t at u t e is clea r on its fac e as to whether it is a controlled substance offe nse, it is inappropria te to consider Shepard documents.

Fe lix ’s 1999 conviction was for violation of a statute that provides that “e very person who possesses for sal e an y m arijuana , except as otherwise provided by law, shall be punished” in a “county jail for 16 months, or t wo or three y ear s.” C A L . H E A L T H & S A F E T Y C O D E § 11359 (West 2011); C A L . P E N A L C O D E § 1170(h). T here is no other way to violate this statute. A “contr olled substance offe nse” under § 4B1.1 is a n offe nse “punishable by imprisonment for a term exceeding

one y ear ” that prohibits “the possession of a co n t ro l l ed substance

. . . with intent to manufa cture , import, export, distribute, or dispense.” U.S.S.G. § 4B1.2( b). The C al i fo rn ia conviction for possession of marijuana

for sa le fits this definition.

Fe lix does not challeng e the fac t of the offe nse or the specific convicting statute. He mere ly arg ues that the g overnme nt did not prove its case . The g overnme nt prese nted a case summary from California, case “minutes” from California, a criminal history repor t from L os Ang eles County , and

an i n dictment to prove the nature of t his conviction. These were the onl y documents t hat ex ist i n California reg arding the offe nse. The documents show that Fe lix was char g ed with and pleade d nolo

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United States v. Apodac a and Felix-F elix contendre to a violation of California HSC 11359. We find that the district cou rt d i d not err in rely ing on the se docume nts to show the fac t of the convic tion.

D. F elix’s Challenge Regar din g the Distr ict Court ’s Sentencing Discre tion

Fe lix also challeng es his sentenc e on the g round that the distri ct court did not state on the

rec ord that it unde rstood its sente ncing discretion. The result of this misunderstanding , he claims, is that when the court g rante d the g overnme nt’s motion for a downwar d d ep ar t u re pursuant to § 5 K 1

. 1 , it me rely adopted the g overnme nt’s sug g estion rathe r than making an indepen d e n t a s s e s s me n t of t he value of hi s s u b s t anti al assis tance
. See United States v. Grant , 636 F.3d 803, 816 (6th Cir. 2011) (noting that a district co u rt i s fre e to g ive a lesser or g rea ter reduc tion than rec ommended b as ed o n an i ndepende nt assessment of the value of the substantial assistance ). The g overnme nt responds that this appea l fits square ly within the appea l waiver in Fe lix ’s plea and that revie w of this issue is prec luded. We revie w de novo the question of whether a defe ndant has waived the rig ht to appea l in a plea wa iver. United States v. Smith , 344 F.3d 479, 483 ( 6th Cir. 2003).

There is no question that a defe ndant may waive the rig ht to appea l by means of a valid plea ag ree ment. United States v. Toth , 668 F.3d 374, 377 (6th Cir. 2012); Smith , 344 F.3d at 483. This court is bound by that ag ree ment so long as the prese nt a ppeal falls within the scope of the waiver , and so long as the waiver was knowing and voluntary

. Toth , 6 6 8 F.3d at 378; Smith , 344 F.3d at 483.

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United States v. Apodac a and Felix-F elix As for the scope, Fe lix ’s plea expressly waived his appea l rig hts “except as specific ally

rese rved.” The only

specific rese rvations ar e for ineffe ctive assist ance , prosec utorial misconduct,

or one of three specific sentenc ing decisions. The three sentenc ing decisions rese rved wer e a sentenc e in excess of the statutory maxi mum, a sentenc e highe r than the applicable Guidelines rang e, and a de termination that Fe lix is a ca ree r offe nder. Fe lix ’s challeng e that the district c ourt did not understand its sentenc ing discretion cannot be classified as any of these. He does not alleg e that his counsel or the prosec utor did any thing impro per. He was not sentenc ed above his applicable Guidelines rang e, and no statutory minimum applied beca use the court g rante d a § 5K1.1 motion. See United States v. Hamee d , 614 F.3d 259, 262-63 (6th Cir. 2010) (noting that a sentenc ing court is not bound by the s tatutory minim u m wh en it g rants a motion for downward departur e pursuant to § 5K1.1.) This challeng e does not arise out of the co u rt ’s decision reg arding Fe lix ’s car eer offe nder status. Thus, the ple a wa iver a pplies to this challeng e.

To deter mine whether a waiver was knowing and voluntary , we look to the plea itself as well

as to the plea colloquy

. See United States v. Swanberg , 370 F.3d 622, 626 (6th Cir. 2004); see also United States v. Murdock , 398 F.3d 491, 497 (6th Cir. 2005) (finding err or wher e the district court did not inform the defe ndant of the appea l waiver as require d by Rule 11(b)( 1)(N) ). Her e, the plea itself states that Fe lix had been advised by counsel of the rig ht to appeal his sentenc e conf err ed by 18 U.S.C. § 3742, and that he “expressly and voluntarily waives those rig hts.” At his plea hear ing, the district court car efully explained that all appea l rig hts had been waived with the exception of the

ones listed in the plea, which it also explained. The court asked Fe lix if his attorney had explained

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United States v. Apodac a and Felix-F elix this car efully , and Fe lix then confe rre d with his attorney in court. The court asked Fe lix whether he understood the waiver and whether he still wished to plead g uilty and Fe lix responde d “y es” to both questions. There is nothing here that would sug g est that the waiver could have been any thing other than knowing and voluntary

. See Swanbe r g , 370 F.3d at 626 (consider ing a waiver knowing and voluntary when the court explained the waiver at the pl ea h ea ri n g althoug h the court later

err oneously informed the defe ndant that he had the rig ht to appea l). Fe lix knowing ly and voluntarily waived his rig ht to appeal this issue and we will not review it.

III. CONCLUSION

For the fore g oing rea sons, the sentenc es imposed by the district court are aff irmed as to both Apodac a and F elix

.

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