(F)  Challenge to Pre-Sentence Report.   If counsel contests the accuracy of the presentence report, the report standing alone should be considered an insufficient basis for determining whether a prior conviction triggers a particular enhancement.[1]  If counsel does not challenge a sentence enhancement found true in the PSR, the report has been held a sufficient basis on which to impose the enhancement.[2]  For example, where the defense does not specifically object to the PSR’s characterization of a prior conviction as a “drug trafficking offense,” the court may impose the 16-level enhancement. The defense’s general statements that a 16-level enhancement was not appropriate (without explaining why) or that the defendant was not guilty of the prior offense were insufficient.[3]

[177] See United States v. Potter, 895 F.2d 1231 (9th Cir. 1990) (question whether conviction qualifies as a “violent felony” under 18 U.S.C. § 924(e)(1)); United States v. Haslip, 160 F.3d 649 (10th Cir. 1998) (court decides whether sentence enhancement is proper by looking either to the statutory definition of the offense, or, if this is not possible, to the charging papers); United States v. Barney, 955 F.2d 635, 639 (10th Cir. 1992) (if prior conviction resulted from plea of guilty, court may examine charging paper to determine whether the defendant’s conduct fell within the Supreme Court’s definition of burglary: “To the extent that the district court considered convictions … not noticed and only mentioned in the presentence report, it erred.”); cf. United States v. Romero-Rendon, 198 F.3d 745 (9th Cir. 1999).

[178] United States v. Romero-Rendon, 198 F.3d 745, 748 (9th Cir. 1999); United States v. Marin-Cuevas, 147 F.3d 889, 895 (9th Cir. 1998).

[179] United States v. Arrieta-Buendia, 372 F.3d 953 (8th Cir. 2004), cert. denied, 543 U.S. 1057 (2005).

AGGRAVATED FELONY - SENTENCE
CD4:20.31;CMT3:4.7 INADMISSIBILITY - CRIME OF MORAL TURPITUDE - PETTY OFFENSE EXCEPTION United States v. Rodriquez, 553 U.S. ___ (May 19, 2008) (for purposes of considering whether a state drug-trafficking offense, for which a ten-year recidivism-based sentence was imposed, qualifies as a predicate offense under the Armed Career Criminal Act, 18 U.S.C. 924(e)), the federal sentencing court must consider the recidivist sentence enhancement in determining the sentence imposed), disagreeing with United States v. Corona-Sanchez, 291 F.3d 1201 (9th Cir. 2002) (en banc) (petty theft conviction could not qualify as an aggravated felony because the maximum possible sentence for a violation without statutory recidivist enhancements was six months).

BIA

SENTENCE ENHANCEMENT - RECIDIVISM AS AN ELEMENT OF CONVICTION
Matter of Carachuri-Rosendo, 24 I. & N. Dec. 382, 389 (BIA Dec. 13, 2007) (en banc) ("facts leading to recidivist felony punishment, such as the existence of a prior conviction, do not qualify as "elements" in the traditional sense. Almendarez-Torres v. United States, 523 U.S. 224, 228-35 (1998).").

SENTENCE - RECIDIVIST SENTENCE ENHANCEMENT
Matter of Carachuri-Rosendo, 24 I. & N. Dec. 382, 393 n.8 (BIA Dec. 13, 2007) (en banc) ("Aliens in removal proceedings have no constitutional right to appointed counsel, so allowing facts about recidivism to be determined by an Immigration Judge in the first instance could raise due process concerns. Chewning v. Cunningham, 368 U.S. 443, 447 (1962) (finding that due process requires the appointment of counsel to a defendant charged as an habitual offender under Virginia law in light of the complexity of the recidivism issue).").

Ninth Circuit

SENTENCE " SENTENCE IMPOSED " RECIDIVIST SENTENCE ENHANCEMENT SENTENCE IS SENTENCE IMPOSED
United States v. Rivera, 658 F.3d 1073 (9th Cir. Sept. 23, 2011) (California felony petty theft convictions under Penal Code 484(a) and 666 constituted aggravated felony theft offenses, under INA 101(a)(43)(G), 8 U.S.C. 1101(a)(43)(G), for illegal re-entry sentencing purposes); declining to follow United States v. Corona"Sanchez, 291 F.3d 1201 (9th Cir. 2002) (en banc); following United States v. Rodriquez, 553 U.S. 377, 382-386 (2008) (an increased, recidivist sentence is a stiffened penalty for the latest crime, which is considered to be an aggravated offense because [it is] a repetitive one so the sentence imposed for the sentence enhancement does relate to the commission of the repeat offense and is clearly part of the sentence prescribed by law; therefore a recidivist sentence constitute a sentence imposed for determining whether a prior conviction qualifies as a predicate offense).

SENTENCE - RECIDIVIST ENHANCEMENTS
United States v. Carr, __ F.3d __, 2008 WL 200648 (9th Cir. Jan. 25, 2008) (Washington felony conviction for violation a protection order, in violation of RCW 26.50.110(5), was a felony for purposes of finding defendant a felon in possession of a firearm; although violation of a protection order is itself a gross misdemeanor, defendant was convicted under subsection (5), for repeat offenders, and to convict under (5), the prosecution must prove the prior beyond a reasonable doubt).

NOTE: The court here distinguished United States v. Corona-Sanchez, 291 F.3d 1201 (9th Cir.2002), on the basis that 18 U.S.C. 921(a)(20) requires that the determination of whether the conviction is a felony or a misdemeanor be made according to state law, while in the aggravated felony and federal sentencing contexts, the categorical approach is used to determine whether the offense would be a felony under federal law.

NATURE OF OFFENSE - ELEMENTS OF OFFENSE - SENTENCE ENHANCEMENTS - RECIDIVIST ENHANCEMENTS
United States v. Grisel, 488 F.3d 844 (9th Cir. Jun. 5, 2007) (en banc) (prior convictions are not elements of offense, and need not be pleaded or found beyond reasonable doubt by jury, to impose a sentence enhancement under the Armed Career Criminal Act, 18 U.S.C. 924(e)(1): "The Court likewise preserved the exception for prior convictions in Blakely v. Washington, 542 U.S. 296, 301 (2004); United States v. Booker, 543 U.S. 220, 244 (2005); Cunningham v. California, 127 S.Ct. 856, 864, 868 (2007); and, most recently, James v. United States, 127 S.Ct. 1586, 1600 n. 8 (2007).").

SENTENCE - MAXIMUM POSSIBLE TERM - MAXIMUM TERM ENHANCED BY RECIDIVIST SENTENCE ENHANCEMENT DOES NOT COUNT FOR PURPOSES OF ACCA BECAUSE RECIDIVISM DOES NOT RELATE TO THE COMMISSION OF THE OFFENSE
United States v. Rodriquez, 464 F.3d 1072, 1079, 1082 (9th Cir. 2006) (Washington conviction for delivery of a controlled substance, in violation of Washington Revised Code 9A.20.021(1)(c), which carried a maximum term of five years for the substantive crime, but was enhanced to ten years as a "second or subsequent offense[ ]" under a recidivism provision, did not qualify as a "serious drug offense" under the pertinent definition in the Armed Career Criminal Act (ACCA), 18 U.S.C. 924, et seq. ("an offense under State law, involving manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled substance ... for which a maximum term of imprisonment of ten years or more is prescribed by law. " (quoting 18 U.S.C. 924(e)(2)(A)(ii)) (emphasis in original), because, following Corona-Sanchez, Rodriquez's prior controlled-substance violation could not be classified as a "serious drug offense," though he received an enhanced sentence of ten years under the recidivist statute, because "recidivism does not relate to the commission of the offense."), following United States v. Corona-Sanchez, 291 F.3d 1201 (9th Cir. 2002), and Rusz v. Ashcroft, 376 F.3d 1182 (9th Cir. 2004).