FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

No. 09-50009 Plaintiff-Appellee,

D.C. No.

v.  3:07-CR-03190-

JOSE RAYMUNDO CONTRERAS- JAH-1

HERNANDEZ,

OPINION Defendant-Appellant. 

On Appeal from the United States District Court

for the Southern District of California

John A. Houston, District Judge, Presiding

Submitted February 4, 2010*

Pasadena, California

Filed January 3, 2011

Before: Andrew J. Kleinfeld, Kim McLane Wardlaw, and

Consuelo M. Callahan, Circuit Judges.

Opinion by Judge Kleinfeld.

*The panel unanimously concludes this case is suitable for decision

without oral argument. See Fed. R. App. P. 34(a)(2). 

61
COUNSEL

Candis L. Mitchell, Federal Defenders of San Diego, Inc., for

the defendant-appellant.

Peter J. Mazza, Assistant U.S. Attorney, San Diego, California, for the plaintiff-appellee.

OPINION

KLEINFELD, Circuit Judge:

We address several sentencing issues, the most substantial

of which is whether California solicitation to commit murder1

is a crime of violence for purposes of a Guidelines enhancement.

I. Facts

Jose Raymundo Contreras-Hernandez was convicted after

jury trial of being an alien found in the United States after a

previous deportation.2 The base offense level for this crime is

8,3 but the Sentencing Guidelines impose a sixteen-level

increase, to 24, if the alien’s prior deportation followed a conviction for a felony that was a crime of violence.4

 This upward

adjustment was imposed on Contreras-Hernandez, contributing to his sixty-three months of imprisonment. For his cri1Cal. Penal Code § 653f(b). 

2

8 U.S.C. § 1326. 

3U.S.S.G. § 2L1.2(a). 

4U.S.S.G. § 2L1.2(b)(1)(A)(ii). 

UNITED STATES v. CONTRERAS-HERNANDEZ 65
minal history category of III, a base offense level of 8 generates six to twelve months of imprisonment, but a 24 generates

sixty-three to seventy-eight months. In addition to the sentencing guidelines increase, Contreras-Hernandez’s statutory

maximum was increased from two years to twenty years

because the solicitation of murder was deemed an aggravated

felony.5

Contreras-Hernandez had been convicted of soliciting the

murder of his wife.6 According to his sentencing memorandum, the person he had tried to hire to kill her turned out to

be an undercover police informant. He had been sentenced to

six years of imprisonment and had served two, when he was

paroled and deported. A month later, the border patrol apprehended Contreras-Hernandez in California. His attorney said

at sentencing that Contreras-Hernandez’s wife had left their

son with Contreras-Hernandez’s brother and gone off to Georgia, and now Contreras-Hernandez’s brother was unable to

care for the boy, so Contreras-Hernandez was coming to the

United States only to pick up his son and take him back to

Mexico.

The district court treated the statutory maximum as twenty

years, applied the guidelines adjustment for deportation after

conviction for a crime of violence, and sentenced ContrerasHernandez to the bottom end of his guidelines range, sixtythree months.

II. Analysis

Contreras-Hernandez argues: (1) solicitation of murder is

not a crime of violence; (2) the district judge did not adequately consider under 18 U.S.C. § 3553 the mitigating reason

for his return to the United States; (3) the indictment was

flawed because it did not set out the date of his deportation;

5

8 U.S.C. § 1326(a), (b)(2). 

6Cal. Penal Code § 653f(b). 

66 UNITED STATES v. CONTRERAS-HERNANDEZ
and (4) the increase in the statutory maximum in 8 U.S.C.

§ 1326 for an aggravated felony, based on judicial findings of

fact rather than indictment and a right to jury trial on the

aggravating factor, is unconstitutional. 

1. Crime of violence

[1] The question of whether solicitation of murder is a

crime of violence is not yet controlled by precedent precisely

on point, though the question is surrounded by precedent that

makes the answer clear.

Contreras-Hernandez was convicted under California Penal

Code § 653f(b): “Every person who, with the intent that the

crime be committed, solicits another to commit or join in the

commission of murder shall be punished by imprisonment in

the state prison for three, six, or nine years.” Sentencing

Guideline § 2L1.2(b)(1)(A)(ii) provides for a sixteen-level

upward adjustment if the felony preceding deportation was a

“crime of violence.” We review de novo whether a crime

qualifies as a “crime of violence.”

7

[2] The guidelines commentary defines murder as a crime

of violence,8 and provides that convictions to be counted as

crimes of violence “include the offenses of aiding and abet7Prakash v. Holder, 579 F.3d 1033, 1035 (9th Cir. 2009). 

8The guidelines commentary reads: 

“Crime of violence” means any of the following offenses under

federal, state, or local law: murder, manslaughter, kidnapping,

aggravated assault, forcible sex offenses (including where consent to the conduct is not given or is not legally valid, such as

where consent to the conduct is involuntary, incompetent, or

coerced), statutory rape, sexual abuse of a minor, robbery, arson,

extortion, extortionate extension of credit, burglary of a dwelling,

or any other offense under federal, state, or local law that has as

an element the use, attempted use, or threatened use of physical

force against the person of another. 

U.S.S.G. § 2L1.2(b)(1) cmt. n.1(B)(iii). 

UNITED STATES v. CONTRERAS-HERNANDEZ 67
ting, conspiring, and attempting” as well as the offenses designated.9

 But “soliciting” is not on this list. ContrerasHernandez argues that we should follow the reasoning of the

Sixth Circuit in United States v. Dolt.

10 Dolt holds that solicitation to traffic in cocaine is not a controlled substance

offense for purposes of the career offender enhancement,11

because solicitation differs from and is less serious than aiding and abetting, conspiring or attempting, and is not enumerated in that list.

[3] We reach a contrary conclusion. We do not apply the

rule of interpretation,12 expressio unius est exclusio alterius,

because the Guidelines provide that “the term ‘includes’ is not

exhaustive.”

13 That is an express rejection of the “expressio

unius . . .” inference from the word “includes.”

14 The catchall

language in the definition of crime of violence, “or any

offense . . . that has as an element the use, attempted use, or

threatened use of physical force against the person of another,” suggests a broader reach than the listed offenses.15 We

held in United States v. Cox that solicitation of murder under

9The guidelines commentary reads: “Prior convictions of offenses

counted under subsection (b)(1) include the offenses of aiding and abetting, conspiring, and attempting, to commit such offenses.” U.S.S.G.

§ 2L1.2(b)(1) cmt. n.5. 

1027 F.3d 235 (6th Cir. 1994). 

11U.S.S.G. § 4B1.1. 

12We have explained that the “expressio unius, or inclusio unius, principle . . . is a rule of interpretation, not a rule of law.” Longview Fibre Co.

v. Rasmussen, 980 F.2d 1307, 1312-13 (9th Cir. 1992). 

13U.S.S.G. § 1B1.1 cmt. n.2. 

14We have distinguished controlled substance cases that say otherwise

from cases concerning crimes of violence. Prakash v. Holder, 579 F.3d

1033, 1038 (9th Cir. 2009) (explaining that the “statute that concerns us

in this case, 18 U.S.C. § 16(b),” which defines “crimes of violence,” “does

not itself contain a provision listing some inchoate crimes, such as attempt

and conspiracy, to the exclusion of others. The legal principle that led to

the results in these controlled substances cases does not apply here.”). 

15United States v. Shumate, 329 F.3d 1026, 1030-31 (9th Cir. 2003). 

68 UNITED STATES v. CONTRERAS-HERNANDEZ
a materially similar state statute is indeed a crime of violence

because it “involves a high degree of threat of physical force”

and “a serious potential risk of physical injury to another.”

16

Cox interpreted the “use, attempted use, or threatened use of

physical force against another” in the guidelines adjustment

for a felon in possession of a firearm,17 the words of which are

identical to those in the catchall provision for an alien found

in the United States having previously been deported.18 And

in United States v. Shumate, building on the reasoning in Cox,

we held that solicitation of delivery of a controlled substance

suffices for the career criminal sentence enhancement because

solicitation “presents a high degree of threat” that the substance will be delivered.19

1674 F.3d 189, 190 (9th Cir. 1996). 

17The guidelines read: 

(a) The term “crime of violence” means any offense under federal

or state law, punishable by imprisonment for a term exceeding

one year, that— 

(1) has as an element the use, attempted use, or threatened

use of physical force against the person of another, or 

(2) is burglary of a dwelling, arson, or extortion, involves use

of explosives, or otherwise involves conduct that presents a

serious potential risk of physical injury to another. 

U.S.S.G. § 4B1.2(a). 

18The commentary for the § 2L1.2 Offenses Involving Immigration,

Naturalization, and Passports definition of “crime of violence” includes a

list of enumerated crimes as well as “any other offense under federal,

state, or local law that has as an element the use, attempted use, or threatened use of physical force against the person of another.” U.S.S.G.

§ 2L1.2(b)(1) cmt. n.1(B)(iii). 

The definition of “crime of violence” in § 4B1.2 on career offenders

reads “any offense under federal or state law, punishable by imprisonment

for a term exceeding one year, that . . . (1) has as an element the use,

attempted use, or threatened use of physical force against the person of

another, or (2) . . . involves conduct that presents a serious potential risk

of physical injury to another.” U.S.S.G. § 4B1.2(a). 

19United States v. Shumate, 329 F.3d 1026, 1030-31 (9th Cir. 2003). 

UNITED STATES v. CONTRERAS-HERNANDEZ 69
[4] The Tenth Circuit followed our reasoning, not Dolt’s,

in United States v. Cornelio-Pena.

20 Cornelio-Pena holds that

solicitation to commit burglary is a violent felony for purposes of the same statute of conviction, 8 U.S.C. § 1326, and

guideline, § 2L.1.2, that apply to Contreras-Hernandez: “Because the mens rea and actus reus required for solicitation are

similar to those required for aiding and abetting, conspiracy

and attempt, we conclude that solicitation is sufficiently similar to the offenses listed in the application note to be encompassed by the note.”

21

Likewise, in Prakash v. Holder22 we held that Cox applies

to the aggravated felony provision in 8 U.S.C.

§ 1101(a)(43)(F). Prakash holds that solicitation of assault

and rape under California Penal Code § 653f(a) and (c) is a

“crime of violence,” because solicitation inherently presents

a substantial risk and high degree of threat of violence.23

Prakash compels the result in this case, because the guideline

commentary for 8 U.S.C. § 1326 convictions provides that

“ ‘aggravated felony’ has the meaning given to that term in 8

U.S.C. § 1101(a)(43).”

24 This guideline provision makes

Prakash indistinguishable from this case. Because solicitation

is an aggravated felony under 8 U.S.C. § 1101(a)(43)(F), and

U.S.S.G. § 2L1.2(b)(1)(C) cmt. n.3(A) says that aggravated

felony in U.S.S.G. § 2L1.2(b)(1)(C) has the same meaning as

in 8 U.S.C. § 1101(a)(43), our holding that solicitation of a

crime of violence is itself a crime of violence under

§ 1101(a)(43)(F) compels the conclusion that solicitation of

murder is also a crime of violence under § 2L1.2(b)(1)(A)(ii).

[5] Contreras-Hernandez’s argument for a distinction

20United States v. Cornelio-Pena, 435 F.3d 1279 (10th Cir. 2006). 

21Id. at 1286. 

22579 F.3d 1033 (9th Cir. 2009). 

23Id. at 1036-37. 

24U.S.S.G. § 2L1.2(b)(1)(C) cmt. n.3(A). 

70 UNITED STATES v. CONTRERAS-HERNANDEZ
based on the ineffectuality of his solicitation does not distinguish solicitations from the listed equivalents. His practical

problem of hiring a hit man who turned out to be a police

informant does not distinguish him from criminal conspirators

who unknowingly recruit police undercover agents into their

midst. That the criminals may be poor judges of character,

when they seek criminal assistance for their criminal acts,

does not alter their criminal purpose and motive, or their

criminal act.

2. Mitigation

[6] Contreras-Hernandez argues that the district court erred

by failing to consider his mitigating reason for coming into

the United States illegally, bringing his son back to Mexico

when Contreras-Hernandez’s brother could no longer care for

him. He correctly points out that the district court must consider the factors set out in 18 U.S.C. § 3553(a) when imposing

a sentence. 

The statute says that a court must “consider”

25 the listed

factors, not that it must reduce the sentence below the guidelines range if any mitigating factor is present. “A withinGuidelines sentence ordinarily needs little explanation,” and

the district court “need not tick off each of the § 3553(a) factors to show that it has considered them,” nor articulate “how

each § 3553(a) factor influences its determination of an

appropriate sentence.”

26

[7] The record satisfactorily demonstrates that the district

court, taking Contreras-Hernandez’s attorney’s representation

regarding his motive as true, considered it. The district court

explicitly referenced the § 3553(a) factors, Contreras25The statute reads: “The court, in determining the particular sentence

to be imposed, shall consider” the factors. 18 U.S.C. § 3553(a) (emphasis

added). 

26United States v. Carty, 520 F.3d 984, 992 (9th Cir. 2008). 

UNITED STATES v. CONTRERAS-HERNANDEZ 71
Hernandez’s “personal history and characteristics,” and the

“circumstances of this arrest” when making its sentencing

determination. This demonstrates that the district court judge

“considered the parties’ arguments and ha[d] a reasoned basis

for exercising his own legal decisionmaking authority,”

27

which satisfies the requirements of our case law. ContrerasHernandez had tried to hire a hit man to kill his wife, yet got

the bottom end of the guideline range, even though the prosecutor and probation officer recommended the middle of the

range. Since defense counsel’s argument and ContrerasHernandez’s allocution focused on his beneficent motive for

illegal reentry, that argument is a likely explanation for the

district court’s decision to choose the bottom of the range.

That the district court listened to counsel and thought about

the motive is demonstrated by the court’s comment after

imposing the sixty-three-month sentence that coming back to

the United States to retrieve his son, even under the worst circumstances for his son, would land Contreras-Hernandez back

in jail.

3. Sufficiency of the indictment

Contreras-Hernandez argues that his sentence had to be

limited to a maximum of two years under subsection (a) of 8

U.S.C. § 1326, not the ten- and twenty-year maximums under

subsection (b), because the indictment did not allege the date

of his prior deportation. The indictment alleged the date he

was found in the United States, that he had “previously” been

deported, and that his deportation was “subsequent to October

28, 2005.” But the indictment did not state the deportation

date itself.

[8] Contreras-Hernandez correctly cites United States v.

Covian-Sandoval28 for the proposition that for an element of

§ 1326(b)(2) to increase to the maximum sentence, the predi27Rita v. United States, 551 U.S. 338, 356 (2007). 

28462 F.3d 1090, 1097 (9th Cir. 2006). 

72 UNITED STATES v. CONTRERAS-HERNANDEZ
cate felony conviction must be prior to the predicate deportation, not subsequent to it, since the statute says the deportation

has to be “subsequent to” the felony conviction. He argues

that under Apprendi v. New Jersey29 and Blakely v. Washington,

30

the indictment must state the date of the deportation, because

it is an element of the crime, so that failure to state the date

is structural error and harmless-error analysis cannot be

applied.

[9] Our decisions in United States v. Mendoza-Zaragoza31

and United States v. Garcia-Hernandez32 compel rejection of

this argument. We held in Mendoza-Zaragoza that “an indictment will support the 1326(b) sentence enhancement if it

alleges a removal date, thus enabling a sentencing court to

compare that date to the dates of any qualifying felony convictions to determine whether the sentence-enhancing

sequence is satisfied.”

33 Subsequently, in United States v.

Garcia-Hernandez, we considered an indictment in the identical form as Contreras-Hernandez’s: Both indictments alleged

the date the alien was found in the United States, and alleged

that the removal was subsequent to a designated date, but did

not state the removal date.34 We held that even though the

indictment did not state the removal date, it sufficed to support an enhanced sentence under subsection (b) of § 1326,

because “it contains enough information to allow the district

29530 U.S. 466 (2000). 

30542 U.S. 296, 301-02 (2004). 

31567 F.3d 431 (9th Cir. 2009). 

32569 F.3d 1100 (9th Cir. 2009). 

33567 F.3d 431, 434 (9th Cir. 2009). 

34Contreras-Hernandez’s indictment states that Contreras-Hernandez

“was removed from the United States subsequent to October 28, 2005.”

In Garcia-Hernandez, the indictment stated that “defendant OSCAR

JAVIER GARCIA-HERNANDEZ was removed from the United States

subsequent to April 29, 2003.” United States v. Garcia-Hernandez, 569

F.3d 1100, 1103 (9th Cir. 2009). 

UNITED STATES v. CONTRERAS-HERNANDEZ 73
court to establish at sentencing that the alien’s removal

occurred after the qualifying conviction.”

35

4. Apprendi

[10] Subsection (b) of 8 U.S.C. § 1326 raises the maximum sentence from two years to ten or twenty, based on prior

convictions. The court rather than a jury makes the requisite

findings of fact that increase the sentence. Because ContrerasHernandez’s crime was deemed to be an aggravated felony,

this subsection increased his maximum sentence to twenty

years. Contreras-Hernandez argues such judicial fact-finding

is unconstitutional under Apprendi v. New Jersey,

36 though

conceding that under our current binding precedent the law is

otherwise. This argument is foreclosed by Almendarez-Torres

v. United States37 and United States v. Beng-Salazar.

38

III. Conclusion

[11] Solicitation of murder is an “aggravated felony” for

purposes of 8 U.S.C. § 1236(b)(2) and a “crime of violence”

for purposes of sentencing guideline § 2L1.2(b)(1)(A)(ii). The

district court performed its obligation to consider the Section

3553 factors.

AFFIRMED.

35Id.

36530 U.S. 466 (2000). 

37523 U.S. 224, 226-27 (1998) (holding that a prior conviction that triggers an increased maximum sentence need not be proved to a jury). 

38452 F.3d 1088, 1091 (9th Cir. 2006) (stating that Almendarez-Torres

has not been overruled). 

74 UNITED STATES v. CONTRERAS-HERNANDEZ