Appeal from the United States District Court for the Southern District of California D.C. No. 06CR1610-MJL M. James Lorenz, District Judge, Presiding.
The opinion of the court was delivered by: Callahan, Circuit Judge
Argued and Submitted February 6, 2009 -- Pasadena, California.
Before: Cynthia Holcomb Hall, Barry G. Silverman and Consuelo M. Callahan, Circuit Judges.
Joe Raymond Felix appeals his sentence from a drug conviction. He objects to the district court's consideration of a second misdemeanor conviction, which disqualified him from eligibility for a safety valve sentence, and resulted in a mandatory minimum sentence. First, Felix argues that the district court improperly relied on a computer printout in calculating his criminal history points. Second, he argues that the district court wrongly placed the burden of proof on him to demonstrate that his prior conviction was diverted. Third, he argues that the district court violated the Supreme Court's decision in Shepard v. United States, 544 U.S. 13 (2005), by engaging in fact-finding regarding a prior conviction. Finally, he argues that because the alleged prior conviction had a disproportionate impact on his sentence, the district court should have applied a clear and convincing standard of proof. We have jurisdiction to review the district court's order under 28 U.S.C. § 1291. We reject the government's assertion that Felix has waived his right to appeal, but affirm the sentence because none of Felix's challenges to his sentence is persuasive.
On June 14, 2006, Joe Raymond Felix ("Felix") entered the United States from Mexico as the driver and sole occupant of a car registered in California. Felix and the vehicle were escorted to the secondary inspection area where officers discovered and removed five cellophane-wrapped packages con- taining 13.46 kilograms of methamphetamine of 98 percent purity.
Felix was charged with one count of importation of methamphetamine in violation of 21 U.S.C. §§ 952 and 960. Felix pleaded guilty to the charged offense. A Presentence Report ("PSR") was prepared, which assessed two criminal history points based on Felix's two prior convictions. The first criminal history point was based on a 1999 misdemeanor conviction in Pima County, Arizona, for "Assault, Knowingly Causing Injury (misd)," in violation of ARS § 13-1203. The second criminal history point was based on a 2001 state conviction for an "Attempted Unlawful Transportation of Marijuana for Sale."*fn1 These two criminal history points placed Felix in criminal history category II, rendering him ineligible for the benefit of the safety valve provision under United States Sentencing Guidelines ("U.S.S.G.") § 5C1.2(a)(1).*fn2
At his initial sentencing hearing, Felix objected to the criminal history point based on the misdemeanor conviction in Pima County, contending that the case was dismissed pursuant to a diversion program. The probation officer, however, testified that based on a computer printout, it appeared that Felix had pleaded guilty to the charge and that probation was granted. In an addendum to the PSR, the probation officer reported that his multiple communications with the Pima County records department confirmed that Felix was not granted diversion in this case. Felix did not offer any evidence to support his claim that the case was diverted.
Felix objected to the computer printouts as being improper evidence for the purpose of determining his criminal history category. In the addendum to the PSR, the probation officer responded that the original court file of Felix's misdemeanor conviction had been destroyed, but that Pima County's computer records were provided, and they confirmed Felix's misdemeanor conviction.
Applying the applicable sentencing guidelines, the district court reduced Felix's offense level to 29, which at a criminal history level two, resulted in a guideline sentence range of 97 to 121 months. If Felix had only one instead of two criminal history points, he would be eligible for the safety valve provision set forth in 18 U.S.C. § 3553(f), which under the plea agreement would have resulted in an offense level of 25, with a sentence range of 57 to 71 months. However, absent eligibility for the safety valve sentence, 21 U.S.C. § 960(b)(1), and U.S.S.G. § 2D1.1 provided for a mandatory minimum sentence of 120 months. The district court determined that the government had adequately proved Felix's Arizona misdemeanor conviction, and that Felix therefore was not eligible for a safety valve sentence. The court determined that it was required to impose the mandatory minimum sentence of 120 months and did so.
We review de novo the validity of a waiver of appellate rights. United States v. Buchanan, 59 F.3d 914, 916 (9th Cir. 1995). We review de novo whether a prior conviction is counted under the Sentencing Guidelines. United States v. Newman, 912 F.2d 1119, 1123 (9th Cir. 1990). Whether a prior conviction qualifies for inclusion in a criminal history category calculations is reviewed for clear error. United States v. Marin-Cuevas, 147 F.3d 889, 895 (9th Cir. 1998). We review a district court's determination of the reliability of evidence used at sentencing for an abuse of discretion. Id. (citing United States v. Pinto, 48 F.3d 384, 389 (9th Cir. 1995)). We review de novo a district court's interpretation of the Sentencing Guidelines. United States v. Zolp, 479 F.3d 715, 718 (9th Cir. 2007). Finally, we review the district court's application of the guidelines to the facts of this case for abuse of discretion and the district court's factual findings for clear error. Id.
III. FELIX DID NOT WAIVE HIS RIGHT TO APPEAL
We initially address the government's argument that Felix knowingly and voluntarily waived his right to appeal in the plea agreement.*fn3 Section 11 of the plea agreement provided that "[i]n exchange for the Government's concessions in this plea agreement, defendant waives, to the full extent of the law, any right to appeal or to ...