United States District Court, D. New Mexico
D. Tierney Acting United States Attorney Edward Han Assistant
United States Attorney United States Attorney's Office
Albuquerque, New Mexico Attorneys for the Plaintiff.
Alejandro Benito Fernandez Assistant Federal Public Defender
Federal Public Defender's Office Albuquerque, New Mexico
Attorney for the Defendant.
MEMORANDUM OPINION AND ORDER
MATTER comes before the Court on the Defendant's
Objection to the Presentence Investigation Report and
Sentencing Memorandum, filed May 18, 2017 (Doc.
17)(“Objections”). The Court held a sentencing
hearing on June 21, 2017. The primary issue is whether
Defendant Jose Manzanares-Castro's March 9, 2012
conviction, under California Penal Code § 33215 for
Manufacture, Import, Sale, Supply or Possession of a
Short-Barreled Rifle or Short-Barreled Shotgun is a felony
for the purposes of U.S.S.G. § 2L1.2(b)(D). The Court
concludes that the conviction qualifies as a felony.
February 28, 2017, a deputy with the Bernalillo County
Sherriff's Office encountered Manzanares-Castro in
Albuquerque, New Mexico, during a traffic stop for a
partially obscured license plate. A law-enforcement inquiry
revealed: (i) that Manzanares-Castro was a citizen of Mexico;
(ii) that he had been convicted of Manufacture, Import, Sale,
Supply or Possession of a Short-Barreled Rifle or
Short-Barreled Shotgun on March 9, 2012, in California
Superior Court; and (iii) that he had been ordered removed
from the United States on February 13, 2014. On March 21,
2017, Manzanares-Castro pled guilty to illegal reentry of a
removed alien without the benefit of a plea agreement.
Approximately two months later, the United States Probation
Office (“USPO”) filed its Presentence
Investigation Report, filed May 4, 2017 (Doc.
15)(“PSR”). The USPO identifies
Manzanares-Castro's base offense level as 8. See
PSR ¶ 9, at 4 (citing U.S.S.G. § 2L1.2(a)). The
USPO adds 4 levels to the base offense level, because it
determines that Manzanares-Castro sustained a felony
conviction before he was first ordered removed. See
PSR ¶ 10, at 4 (citing U.S.S.G. § 2L1.2(b)(2)(D)).
The USPO subtracts two levels for acceptance of
responsibility, see PSR ¶ 16, at 4 (citing
U.S.S.G. § 3E1.1(a)), which produces a total offense
level of 5, see PSR ¶ 17, at 4. The USPO
determined that Manzanares-Castro has a criminal history
category of II. See PSR ¶ 25, at 5.
18, 2017, Manzanares-Castro filed his Objections, in which he
argues that his California conviction is a misdemeanor and
not a felony. Manzanares-Castro asserts that violations of
California Penal Code § 33215 are “wobblers,
” i.e., offenses that prosecutors can charge
either as a misdemeanor or as a felony and that trial courts,
in their discretion, can punish either as a misdemeanor or as
a felony. See Objections ¶ 4, at 2-3 (citing
Ewing v. California, 538 U.S. 11, 16-17 (2003)).
Manzanares-Castro admits that the California Superior Court
accepted his guilty plea to a felony charge, but he asserts
that the sentencing court stated that, “if he does
complete the three years of formal felony probation
successfully, the people will not oppose a reduction to a
misdemeanor.” Objections ¶ 5, at 3. According to
Manzanares-Castro, that condition and the absence of evidence
indicating that Manzanares-Castro failed to complete three
years of probation combine to render his conviction under
§ 33215 a misdemeanor. See Objections
¶¶ 6, 10, at 3, 5.
United States of America submitted the United States'
Response to Defendant's Objection to the Presentence
Investigation Report and Sentencing Memorandum, filed May 25,
2017 (Doc. 18)(“Response”). The United States
argues that “California law converts a ‘wobbler
into a misdemeanor only when the court declares the offense
to be a misdemeanor'” and that the California
sentencing court “indicated that it would be open to
converting the conviction to a misdemeanor upon
Defendant's successful completion of probation, ”
but that the record does not indicate that such a conversion
actually occurred. Response ¶¶ 3, 5, at 2 (quoting
United States v. Hernandez-Castillo, 449 F.3d 1127,
1131 (10th Cir. 2006)).
USPO disclosed an Addendum to the Presentence Report, filed
May 30, 2017 (Doc. 21)(“Addendum”). Like the
United States, the USPO observes that the record does not
indicate that the California felony conviction was converted
into a misdemeanor. See Addendum at 1. The USPO also
notes that U.S.S.G. § 2L1.2 references U.S.S.G. §
4A1.2 for definitions, and that § 4A1.2's
Application Note 6 states that sentences which are based on
convictions which are reversed, vacated, or invalidated are
counted when applying the Guidelines unless the conviction
was invalidated for an error of law or newly discovered
evidence exonerates the defendant. See Addendum at
Court concludes that the PSR correctly treats
Manzanares-Castro's 2012 conviction as a felony.
According to the Guidelines, illegal reentry's total
offense level should be increased by 4 levels if
“before the defendant was ordered deported or ordered
removed . . . the defendant sustained . . . a conviction for
any other felony offense (other than an illegal reentry
offense).” U.S.S.G. § 2L1.2(b)(2). For U.S.S.G.
§ 2L1.2's purposes -- but not for the purposes of
California's three-strikes law, see Ewing v.
California, 538 U.S. at 16-17 -- a felony means
“any federal, state, or local offense punishable by
imprisonment for a term exceeding one year, ” U.S.S.G.
§ 2L1.2 Application Note 2. A § 33215 violation is
punishable for a term exceeding one year. See Cal.
Penal Code § 33215 (stating that a violation “is
punishable by imprisonment in a county jail not exceeding one
year or imprisonment pursuant to subdivision (h) of Section
1170”); id. § 1170(h) (“[A] felony
punishable pursuant to this subdivision where the term is not
specified in the underlying offense shall be punishable by a
term of imprisonment in a county jail for 16 months, or two
or three years.”). Consequently, a violation of §
33215 is a felony, for the purposes of U.S.S.G. § 2L1.2,
regardless whether California law classifies the conviction
as a felony or a misdemeanor.
IS ORDERED that the Defendant's Objection to the
Presentence Investigation Report and Sentencing Memorandum,