United States v. Michael Lee Snellenberger, AKA Michael Lee Cutter, Michael Lee Davidson, Robert Eugene Frehly, Cutter Snellenberger, "Cutter"

480 F.3d 1187 UNITED STATES of America, Plaintiff-Appellee, v. Michael Lee SNELLENBERGER, aka Michael Lee Cutter, Michael Lee Davidson, Robert Eugene Frehly, Cutter Snellenberger, "Cutter", Defendant-Appellant. No. 06-50169. United States Court of Appeals, Ninth Circuit. Argued and Submission Deferred February 6, 2007. Submitted February 13, 2007. Filed April 3, 2007. Gail Ivens, Deputy Federal Public Defender, Los Angeles, CA, for the defendant-appellant. Anne C. Gannon, Assistant United States Attorney, Santa Ana, CA, for the plaintiff-appellee. Appeal from the United States District Court for the Central District of California; Alicemarie H. Stotler, District Judge, Presiding. D.C. No. CR-05-00064-AHS. Before FERGUSON, EUGENE E. SILER, JR., * and HAWKINS, Circuit Judges. FERGUSON, Circuit Judge. 1 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 , 125 S.Ct. 1254 , 161 L.Ed.2d 205 (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…

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 , 125 S.Ct. 1254 , 161 L.Ed.2d 205 (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 California Penal Code (“Cal.Penal Code § 459” or “ § 459”). The government asserted that this prior crime qualified as one of violence under the…

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 *1192 the type of judicial record we can rely on under Shepard v. United States, 544 U.S. 13 , 125 S.Ct. 1254 , 161 L.Ed.2d 205 (2005). See United States v. Diaz-Argueta, 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 proof 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…