Document

C.A. No. 13-10269
D. Ct. No. CR 12-1490-PHX-ROS
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
GERARDO GONZALEZ-TORRES,
Defendant-Appellant.
ON APPEAL FROM A JUDGMENT OF THE UNITED STATES
DISTRICT COURT FOR THE DISTRICT OF ARIZONA
------------------------------------------------------------
REPLACEMENT ANSWERING BRIEF OF APPELLEE
------------------------------------------------------------
JOHN S. LEONARDO RACHEL REAMES STODDARD
United States Attorney Assistant U.S. Attorney
District of Arizona Two Renaissance Square
40 N. Central Avenue, Suite 1200
MARK S. KOKANOVICH Phoenix, Arizona 85004-4408
Deputy Appellate Chief Telephone: (602) 514-7500
Attorneys for Appellee
Date Submitted via ECF: June 17, 2014
Case: 13-10269, 06/17/2014, ID: 9135944, DktEntry: 39-1, Page 1 of 34

i
I. TABLE OF CONTENTS
Page
I. Table of Contents............................................................................................. i
II. Table of Authorities........................................................................................ ii
III. Statement of Jurisdiction
A. District Court Jurisdiction.....................................................................1
B. Appellate Court Jurisdiction..................................................................1
C. Timeliness of Appeal.............................................................................1
D. Bail Status..............................................................................................1
IV. Issues Presented...............................................................................................2
V. Statement of the Case
A. Nature of the Case; Course of Proceedings...........................................3
B. Statement of Facts .................................................................................3
VI. Summary of Arguments.................................................................................10
VII. Arguments
A. The District Court Did Not Err in Overruling Defendant’s
Objection to the Presentence Report Regarding the Collateral
Attack on His Prior State Convictions ................................................12
B. The District Court Did Not Err In Finding Defendant’s Prior
Convictions to be Crimes of Violence ................................................15
C. The District Court Did Not Plainly Err in Imposing Three
Criminal History Points for Defendant’s Multiple Prior Crimes
of Violence ..........................................................................................20
D. The District Court Did Not Clearly Err in Withholding a Third-
Level Reduction Despite Defendant’s Proferred Acceptance of
Responsibility......................................................................................23
VIII. Conclusion .....................................................................................................27
IX. Statement of Related Cases ...........................................................................28
X. Certificate of Compliance..............................................................................29
XI. Certificate of Service.....................................................................................30

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II. TABLE OF AUTHORITIES
CASES
Custis v. United States, 511 U.S. 485 (1994) .........................................................12
Descamps v. United States, 133 S. Ct. 2276 (2013) ......................................... 16-17
Fernandez-Ruiz v. Gonzales, 466 F.3d 1121 (9th Cir. 2006) .................................16
State v. Jones, 538 S.E.2d 917 (N.C. Sup. Ct. 2000) ..............................................17
State v. Thompson, 219 S.E.2d 566 (N.C. App. 1975) ...........................................17
State v. Williams, 199 S.E.2d 409 (N.C. Sup. Ct. 1973) ........................................19
United States v. Bracy, 67 F.3d 1421 (9th Cir. 1995) ............................................12
United States v. Catalan, 701 F.3d 331 (9th Cir. 2012) .........................................25
United States v. Cotton, 535 U.S. 625 (2002) .........................................................20
United States v. Gutierrez-Cervantez, 132 F.3d 460 (9th Cir. 1997) .....................12
United States v. Innie, 7 F.3d 840 (9th Cir. 1993) ..................................................25
United States v. Johnson, 581 F.3d 994 (9th Cir. 2009)..........................................23
United States v. Narvaez-Gomez, 489 F.3d 970 (9th Cir. 2007) ............................15
United States v. Timmreck, 411 U.S. 780 (1979) ...................................................12
United States v. Villasenor-Cesar, 114 F.3d 970 (9th Cir. 1997) ..................... 23-24
United States v. Waknine, 543 F.3d 546 (9th Cir. 2008).........................................20

iii
STATUTES
18 U.S.C. § 3231........................................................................................................1
28 U.S.C. § 1291........................................................................................................1
North Carolina General Statute § 14-32(b) .............................................................17
North Carolina General Statute § 14-34.1 ...............................................................18
RULES
Fed. R. App. P. 4(b) ...................................................................................................1
MISCELLANEOUS
United States Sentencing Guidelines Manual § 3E1.1(a)........................................23
United States Sentencing Guidelines Manual § 3E1.1(b) ............................. 7, 23-25
United States Sentencing Guidelines Manual § 4A1.1(e) ............................. 7, 21-22
United States Sentencing Guidelines Manual § 4A1.2(a)(2)...................................21
United States Sentencing Guidelines Manual § 4B1.2(a)(1)-(2).............................16

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III. STATEMENT OF JURISDICTION
A. District Court Jurisdiction
The district court had subject matter jurisdiction pursuant to 18 U.S.C.
§ 3231 because the defendant/appellant, Gerardo Gonzalez-Torres (“Defendant”),
was charged with a federal crime. (CR 7; ER 1.)1
B. Appellate Court Jurisdiction
This Court has jurisdiction pursuant to 28 U.S.C. § 1291 based upon entry of
the final judgment by the district court on May 20, 2013. (CR 45; ER 96-98.)
C. Timeliness of Appeal
Following the entry of the judgment on May 20, 2013, Defendant filed a
notice of appeal on May 23, 2013. (CR 46; ER 116-117.) The notice was timely
pursuant to Fed. R. App. P. 4(b).
D. Bail Status
Defendant is currently in custody, serving his sentence, and is expected to be
released on December 7, 2016, according to the Bureau of Prisons.
1
“CR” refers to the Clerk’s Record, followed by the document number(s). “RT”
refers to the Reporter’s Transcript, followed by a date and page number(s). “ER”
refers to the Excerpts of Record, followed by the page number(s). “SER” refers to
the Supplemental Excerpts of Record, followed by the page number(s). “PSR”
refers to the Presentence Report, followed by the appropriate paragraph number(s).
This Court’s docket reflects that copies of the PSR were provided by the defendant
to the Clerk of the Court.

2
IV. ISSUES PRESENTED
A. Did the court err in overruling Defendant’s objection to the presentence
report regarding the collateral attack on his prior state convictions?
B. Did the court err in finding Defendant’s prior state convictions to be crimes
of violence?
C. Did the court plainly err in imposing three criminal history points for
Defendant’s multiple prior crimes of violence?
D. Did the court clearly err in withholding a third-point reduction in offense
level despite Defendant’s proffered acceptance of responsibility?

3
V. STATEMENT OF THE CASE
A. Nature of the Case; Course of Proceedings
On June 26, 2012, Defendant was charged via Complaint with the felony
count of Reentry of a Removed Alien. (CR 1; SER 1-4.) Defendant was indicted
for that offense on August 14, 2012. (CR 7; ER 1.) After numerous trial
continuances, Defendant pled guilty to the Indictment on January 22, 2013.
(CR 35.) He was sentenced on May 20, 2013, to 63 months of imprisonment
followed by three years of Supervised Release. (CR 45; ER 96-98.)
B. Statement of Facts
1. The Criminal Offense.
On March 22, 2001, Defendant was convicted in the Forsyth County
Superior Court for North Carolina of five separate crimes; two felony counts of
Assault with a Deadly Weapon resulting in Serious Injury, two felony counts of
Discharging a Weapon at Occupied Structure, and one misdemeanor count of
Assault with Deadly Weapon. (ER 50; PSR ¶ 25.) He received a concurrent
sentence of 23 to 37 months for all counts. (ER 50; PSR ¶ 25.) Due to being a
citizen of Mexico, Defendant was removed from the United States on September 5,
2002. (CR 7; ER 1.)
Defendant was arrested by Phoenix law enforcement on May 12, 2012.
(PSR ¶ 3.) He was convicted by the State of Arizona for the felony count of

4
Possession of a Forgery Device and sentenced to two years of probation.
(PSR ¶ 27.) Upon his release from custody in that matter, Defendant was turned
over to Federal immigration officials for prosecution. (PSR ¶ 4.)
2. The Pre-Trial Phase: Trial Continuances.
Defendant was indicted for Reentry of a Removed Alien on August 14,
2012. (CR 7; ER 1.) Over the course of several months, Defendant requested the
court continue his trial four separate times. (CR 11, 13, 16, 24; SER 5-19, 26-30.)
On January 22, 2013, Defendant pled guilty to the Indictment. (CR 35.)
3. The Pre-Trial Phase: Pleadings.
On November 14, 2012, defense counsel filed a Motion to Strike Allegation
of Priors of Defendant alleging a collateral attack on Defendant’s prior North
Carolina convictions. (CR 15; ER 2-42.) Defense claimed that Defendant was
denied access to legal representation in his prior cases due to a lack of an effective
interpreter. (CR 15; ER 2-42.) The Government filed a motion to postpone
briefing on the issue of whether Defendant’s priors were constitutionally valid until
the issue was ripe; namely, if Defendant was sentenced in the future. (CR 19;
ER 43-45).
On December 10, 2012, Defendant filed a Notice stating he did not oppose
the Government’s Motion to postpone litigation of the issue regarding his prior
convictions. (CR 25; SER 31-32.) On that same date, the Government filed four

5
separate pre-trial pleadings in anticipation of Defendant’s upcoming jury trial.
(CR 20-23; SER 20-25.) The Government later filed a Motion to Compel
Fingerprints from Defendant for trial purposes as well as an additional pre-trial
pleading regarding Defendant’s criminal convictions. (CR 30-31; SER 33-36.)
4. The Sentencing Phase – Defendant’s Multiple Convictions for
Crimes of Violence.
Shortly after Defendant entered his plea of guilty, the Government filed a
Notice of Judicially Noticeable Documents related to Defendant’s North Carolina
criminal convictions. (CR 37; ER 47-76.) The Notice responded to the subject of
Defendant’s earlier Motion to Strike and contained several exhibits related to
Defendant’s prior convictions. (CR 37; ER 47-76.)
The exhibits included: (i) court paperwork from the change of plea hearing
for Defendant’s prior convictions which specified the multiple charges to which
Defendant pled guilty; (ii) the Transcript of Plea Hearing documenting that
Defendant knowingly entered pleas to “two counts of assault with deadly weapon
inflicting serious injury . . . and two counts of discharging a firearm into occupied
property . . . and the misdemeanor charge of assault with a deadly weapon;” and
(iii) the Judgment and Commitment for Defendant’s five separate crimes. (CR 37;
ER 50, 55, 64-65.)
The North Carolina court ruled that the offenses “be consolidated for
judgment.” (CR 37; ER 50, 55, 64-65.) Defendant was sentenced for all five

6
crimes on March 22, 2001, to a term in prison of between 23 and 37 months.
(CR 37; ER 50.) All sentences ran concurrently with each other. (CR 37; ER 50.)
The Probation Department detailed these, and other criminal convictions of
the defendant, in the Presentence Report. (PSR ¶ 19-27.) Defendant filed a
lengthy objection to the Presentence Report reiterating the collateral attack
addressed in his earlier Motion to Strike. (CR 42; ER 77-93.) Two days later,
counsel for the Government filed a Response to the Objection and directed the
court’s attention to the several exhibits previously filed which demonstrated that
Defendant had been provided counsel as well as a Spanish-speaking interpreter to
facilitate communication between himself, his attorney, and the court. (CR 43;
SER 37-43.)
At time of sentencing, the district court considered Defendant’s Objection
and heard further argument regarding same. (RT 5/20/2013 3-9; ER 101-107.)
The court overruled the objection. (RT 5/20/2013 9-10; ER 107-108.) Additional
argument was then heard regarding imposition of sentence. (RT 5/20/2013 10-13;
ER 108-111.)
Defense counsel argued for a variance from the guideline range due to the
imposition of three additional criminal history points that were allotted to
Defendant based on his multiple prior crimes of violence. (RT 5/20/2013 10;
ER 108.) In so doing, defense counsel did not contest that the offenses did qualify

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as crimes of violence and stated: “I didn’t object to the calculation of the
additional three points because it is correct pursuant to the guidelines.”2
(RT 5/20/2013 10; ER 108.) Ultimately, the district court declined to vary below
the guideline range.
5. The Sentencing Phase – No Third-Point Reduction Under
U.S.S.G. § 3E1.1(b).
Prior to sentencing, the Government filed a Notice of Intent Not to Move for
Third-Point Reduction pursuant to United States Sentencing Guidelines Manual
(U.S.S.G.) § 3E1.1(b). (CR 38; SER 44-45.) The Notice detailed Defendant’s
rejection of the early-disposition plea offer and resulting ramifications. (CR 38;
SER 44-45.) Specifically, counsel for the government noted that:
“the defendant is not bound by a traditional plea agreement and is free
to argue for downward departures, reductions of the sentencing
guideline calculations, and any other available reductions normally
outside the range of a joint, written plea agreement. The defendant
may also fully appeal his conviction and sentence at any time,
collaterally attack his conviction and sentence, and contest the
reinstatement of his prior removal order. Because the defendant has
not waived these challenges via a plea agreement, the United States
cannot justify a ‘third-point’ reduction.”
(CR 38; SER 44-45.)
2
Because Defendant was sentenced on the same day for all four of his felony
crimes of violence, they were treated as a “single sentence” for purposes of
calculating his Criminal History. He therefore received three points for one of the
Assault convictions. Pursuant to U.S.S.G. § 4A1.1(e), Defendant then received
one point for each of the three additional crimes of violence he committed.

8
The Notice delineated additional actions the Government was required to
take due to a trial being set in the case. (CR 38; SER 44-45.) The Government
stated that the location of, and travel arrangements for, out of state witnesses had
already begun prior to Defendant’s plea of guilty. (CR 38; SER 44-45.) The
Government further argued that its “interest in conserving its prosecutorial
resources in a district with exceptionally large numbers of immigration cases has
not been preserved when a defendant chooses to reject a plea agreement that would
otherwise incorporate the aforementioned waivers.” (CR 38; SER 44-45.)
At time of sentencing on May 20, 2013, defense counsel raised the issue of
the Government withholding the third-point reduction for his client’s acceptance of
responsibility. (RT 5/20/2013 11; ER 109.) He specifically stated:
“[W]e did accept responsibility for this issue but because there were
important constitutional issues that my client believed needed to be
brought to the Court’s attention, we did not want to accept the plea
agreement; but this was not a situation where my client was being
intransigent or being intentionally uncooperative with the government.
This literally was we had to make a choice as to how best to preserve
his claim moving forward.”
(RT 5/20/2013 11; ER 109.)
Defense counsel requested the Court depart downward to an Offense Level
19 (treating Defendant as if he had accepted the earlier plea agreement) and
sentence him within a range of 37 to 46 months. (RT 5/20/2013 11; ER 109.) The
Government requested the Court deny defense counsel’s request and sentence

9
Defendant within the guideline range reflected in the Presentence Report; namely,
63 to 78 months. (RT 5/20/2013 11-13; ER 109-111; PSR ¶ 47.) The district court
denied Defendant’s motion and sentenced him to 63 months imprisonment.
(RT 5/20/2013 14; ER 112.) In so doing, the court told Defendant it “had an issue
that was raised and the issue raised was a constitutional issue and I gave you credit
for that although I consider your criminal history substantial, substantial in that it
establishes violent criminal activity.” (RT 5/20/2013 14-15; ER 112-113.)

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VI. SUMMARY OF ARGUMENTS
A. The district court did not err in overruling Defendant’s objection to the
presentence report by denying his collateral attack on his prior convictions.
Defendant was unable to show he was denied counsel in the North Carolina
matters. Defendant was appointed an attorney in his prior case and was assisted by
a Spanish-speaking court interpreter through all stages of those proceedings.
B. The district court did not err in finding Defendant’s prior state convictions to
be crimes of violence. Defendant’s offenses of two counts of Assault with a
Deadly Weapon Inflicting Serious Injury, and two counts of Discharging a Firearm
into an Occupied Structure, were acts committed willfully and feloniously that
involved the use, attempted use, or threatened use of force against other
individuals.
C. The district court did not plainly err in imposing three additional criminal
history points for Defendant’s multiple prior crimes of violence. Defendant was
convicted in North Carolina of four separate felony offenses. Each charge was a
crime of violence under the United States Sentencing Guidelines. The North
Carolina court consolidated the cases for judgment and sentencing. Defendant
received three criminal history points for one of the Assault with Deadly Weapon
Resulting in Serious Injury convictions. The district court was correct in assessing
one criminal history point per each additional crime of violence because all

11
sentences were mandated on the same date and so treated as a single conviction
under the Guidelines.
D. The district court did not clearly err in withholding a third-point reduction in
offense level despite Defendant’s proffered acceptance of responsibility. Due to
Defendant’s delay in notifying the court and government of his intent to plead
guilty, the Government had undergone expense and effort in preparing for
Defendant’s jury trial including, but not limited to, filing multiple pleadings,
locating out of state witnesses, and arranging for their travel.

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VII. ARGUMENTS
A. The District Court Did Not Err in Overruling Defendant’s
Objection to the Presentence Report Alleging a Collateral Attack
on His Prior Convictions.
1. Standard of Review
A district court’s analysis of how a defendant’s prior conviction is treated
within the scope of the Sentencing Guidelines is subject to de novo review. United
States v. Bracy, 67 F.3d 1421, 1434 (9th Cir. 1995). Any factual findings made by
the court regarding that prior conviction are reviewed only for clear error. Id.
2. Argument
A defendant may only collaterally attack an underlying State conviction at
Federal sentencing by asserting a complete denial of his right to counsel in the
prior matter. Custis v. United States, 511 U.S. 485, 496-497 (1994). This “interest
in promoting the finality of judgments” is particularly strong when the underlying
conviction involves a guilty plea. Id. at 497. As the Supreme Court has stated,
“[t]he concern with finality served by the limitation on collateral attack has special
force with respect to convictions based on guilty pleas.” United States v.
Timmreck, 441 U.S. 780, 784 (1979). See United States v. Gutierrez-Cervantez,
132 F.3d 460 (9th Cir. 1997)(A defendant being prosecuted for a violation of 8
U.S.C. § 1326(b)(2) was not permitted to collaterally attack his underlying state
convictions because he had been represented by counsel in those cases).

13
A plethora of documents was filed with the district court establishing what
transpired in Defendant’s prior state cases. Defendant filed a letter from the Civil
Rights Division of the Department of Justice which described various
discriminatory practices that they believed had taken place within the North
Carolina Judicial Department revolving around “Limited English Proficiency”
persons and their inhibited access to the legal system due to language barriers.
(ER 24-45.) However, the issues referenced in the letter all occurred several years
after Defendant sustained his convictions. There was no indication that
Defendant’s treatment during his cases was found to be problematic.
In response to this letter, the Government filed several pieces of
documentation establishing what in fact did transpire in Defendant’s prior matters.
(ER 50-79, 97-98.) First, it was shown that Defendant was appointed counsel to
represent him; namely, a Mr. J. Darren Byers. (ER 53.) Mr. Byer’s name and
signature appear frequently throughout the documents related to Defendant’s
convictions establishing that he was a present and active participant in the
proceedings.
The transcript of Defendant’s hearing, where he pled guilty to his crimes,
was also provided to the district court. (ER 63-79.) Not only is it clear that
Defendant was being represented by counsel, but also that an interpreter was
present assisting Defendant throughout his hearing. The interpreter was in fact

14
sworn to “truly interpret and make known to the defendant by such signs, ways and
methods as best known to you, and also truly interpret to the court the plea of the
defendant and all answers of the defendant to the matters according to the best of
your skill and understanding.” (ER 64-65.) Defendant was specifically asked if he
was able to “hear and understand” the court to which he indicated he could.
(ER 65.)
Lastly, an affidavit was presented to the district court from Defendant’s prior
counsel, Mr. Byers, in which he swore that during his practice, which began in
1994, most of his clients have only spoken Spanish. (ER 97-98.) Mr. Byers
avowed that he did represent Defendant in his underlying cases and that at the time
of representation he employed two different Spanish-speaking interpreters to
ensure he could communicate effectively with his clients. (ER 97-98.) Mr. Byers
indicated that he had reviewed the transcript of Defendant’s guilty plea proceeding
and believed it to be accurate. (ER 97-98.) Lastly, he avowed that “[a]t no point”
did he observe that Defendant “was denied counsel, or that he requested additional
or different counsel.” (ER 97-98.)
At time of sentencing, the district court considered all of this evidence. The
court even inquired of defense counsel if he had “any reason to believe that
[Defendant’s prior] defense counsel was ineffective or misled him[.]” (ER 110.)
Defense counsel replied: “No, your honor. We accepted the affidavit on its face.”

15
Id. It is clear from the evidence in the record that Defendant was not only provided
counsel as constitutionally required in his prior state convictions, but that he was
also provided a Spanish-speaking court interpreter through all stages of the
proceedings. Defendant therefore had no basis to collaterally attack his prior
convictions, and the district court’s overruling of his objection to the presentence
report was appropriate.
B. The District Court Did Not Err in Finding Defendant’s Prior
Convictions to be Crimes of Violence.
A district court’s finding that a defendant’s prior conviction qualifies as a
“crime of violence” pursuant to the Sentencing Guidelines is subject to de novo
appellate review3
. United States v. Narvaez-Gomez, 489 F.3d 970, 975 (9th Cir.
2007).
2. Argument
The district court, in assessing whether a prior offense qualifies as a crime of
violence, must first look to the statute of conviction. Id. A crime of violence is
defined as an offense under federal or state law, punishable by a term of
3
At time of sentencing, defense counsel filed a lengthy Objection to the
Presentence Report but did not argue that these offenses were not categorically
crimes of violence. (CR 42; ER 77-93.) As discussed later in the brief, defense
counsel conceded that increases in calculating Defendant’s criminal history—due
to his prior convictions being crimes of violence—were appropriate.
(RT 5/20/2013 10; ER 108.)

16
imprisonment 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)(1)-(2). To qualify under federal law, the violent
conduct must be committed intentionally as opposed to through reckless or grossly
negligent behavior. Fernandez-Ruiz v. Gonzales, 466 F.3d 1121, 1132 (9th Cir.
2006).
When a statute is divisible, however, the Supreme Court stated in Descamps
that the district court can adopt a modified categorical approach to determine under
which portion of the statute a defendant was convicted. Descamps v. United
States, 133 S. Ct. 2276, 2281-2 (2013). A statute is divisible when it “sets out one
or more of the elements in the alternative.” Id. at 2281. If a defendant is convicted
under such a statute, it is in those situations where “[n]o one could know, just from
looking at the statute, which version of the offense [the defendant] was convicted
of.” Id. at 2284.
The modified categorical approach is designed to “help[] effectuate the
categorical analysis when a divisible statute, listing potential offense elements in
the alternative, renders opaque which element played a part in the defendant’s
conviction.” Id. at 2283. The district court can then look to additional

17
documentation, such as the terms of the plea agreement which the defendant
entered or the transcript of the change of plea colloquy between the defendant and
judge, to determine of what offense the defendant was convicted. Id. at 2284. This
approach allows the Court “to identify, from among several alternatives, the crime
of conviction so that the court can compare it to the generic offense.” Id. at 2285.
a. Defendant’s Multiple Convictions for Assault with
Deadly Weapon Inflicting Serious Injury are Crimes of
Violence.
The statute in effect when Defendant committed his crime, North Carolina
General Statute 14-32(b), defines a perpetrator of Assault with Deadly Weapon
Inflicting Serious Injury as “[a]ny person who assaults another person with a
deadly weapon and inflicts serious injury” and orders that they “shall be punished
as a Class E felon.” Nor. Car. Gen. Stat. § 14-32(b) (1998). The crime of assault
has been defined in common law by the North Carolina Supreme Court as “a show
of violence causing a reasonable apprehension of immediate bodily harm,” or “an
intentional offer or attempt by force or violence to do injury to the person of
another.” State v. Thompson, 219 S.E.2d 566, 567-568 (N.C. App. 1975). The
Supreme Court has also found that the requisite mental intent can be satisfied by
either intentional conduct or criminal negligence involving such “recklessness or
carelessness” that it demonstrates a “thoughtless disregard of consequences.” State
v. Jones, 538 S.E.2d 917, 922-923 (N.C. Sup. Ct. 2000).

18
Because there are multiple ways of violating the statute based on various
possible mental states—intentionally or with criminal negligence—a modified-
categorical approach is appropriate in this case. The Indictment of Defendant in
his prior matters describes that he “unlawfully, willfully and feloniously did assault
[the victim] with a handgun, a deadly weapon, inflicting serious injury.” (ER 60.)
The factual basis for Defendant’s guilty plea establishes that he “exited the vehicle
and approached one of the gentlemen [] and struck him in the head with a firearm.”
(ER 71.) Defendant then “fired . . . four separate shots. Two shots struck two of
the gentlemen in the leg.” (ER 71-72.)
It is clear that Defendant’s actions were “willful” and that his actions with a
firearm caused serious injury to multiple victims. Under either a categorical or
modified-categorical analysis, the district court was correct in finding Defendant’s
prior convictions for Assault with Deadly Weapon Inflicting Serious Injury to be
crimes of violence.
b. Defendant’s Multiple Convictions for Discharge of a
Firearm Into Occupied Property are Crimes of Violence.
Under North Carolina law, a perpetrator who commits Discharge of a
Firearm Into Occupied Property is defined as “any person who willfully or
wantonly discharges or attempts to discharge [] a firearm into any building,
structure, vehicle, aircraft, watercraft, or other conveyance, device, equipment,
erection or enclosure while it is occupied.” Nor. Car. Gen. Stat. § 14-34.1 (1998).

19
The Supreme Court of North Carolina has found the requisite mental states of
“willful” and “wanton” to be “substantially” the same. State v. Williams, 199
S.E.2d 409, 412 (N.C. Sup. Ct. 1973)(superseded by statute on other grounds).
Behavior that is “wanton” implies “intentional wrongdoing” while a willful act is
one that is committed “purposely and deliberately.” Id.
Whether reviewed categorically, or under a modified-categorical approach,
Defendant’s prior convictions for Discharge of a Firearm Into Occupied Property
are crimes of violence. The statute criminalizes purposefully firing, or attempting
to fire, a weapon at an occupied structure. This inherently creates a serious
potential risk of physical injury to the victims. Furthermore, if taking a modified-
categorical approach, the charging document reads that Defendant “unlawfully,
wilfully, and feloniously did discharge a .9MM handgun, a firearm, into a building
which was actually occupied by [the victims].” (ER 61.)
Defendant intentionally acted in a way that involved the use of physical
force, or threat thereof, against the person of another. Under either a categorical or
modified-categorical analysis, the district court was correct in finding Defendant’s
prior convictions for Discharge a Firearm Into Occupied Property to be crimes of
violence.

20
C. The District Court Did Not Plainly Err in Imposing Three
Criminal History Points for Defendant’s Multiple Prior Crimes of
Violence.
In a case such as this, where a defendant does not object to an alleged claim
of procedural error in the district court, any appellate review is for plain error.
United States v. Waknine, 543 F.3d 546, 551 (9th Cir. 2008). A defendant must
establish that there was error, that it was “plain,” and that it affected his substantial
rights. Id. Moreover, even if all those conditions are met, this Court will only
exercise its discretion to rule on the error if it was found to “seriously affect the
fairness, integrity, or public reputation of the judicial proceedings.” United States
v. Cotton, 535 U.S. 625, 632-633 (2002).
2. Argument
The district court assessed three criminal history points against the
Defendant for his conviction of Assault with a Deadly Weapon Inflicting Serious
Injury. (PSR ¶ 25.) On the date he was sentenced for that crime, Defendant was
also sentenced for three other felony crimes of violence charged in separate cases.
(PSR ¶ 25.) Due to Defendant being sentenced on the same day for all offenses,
they were treated as a single sentence for purposes of computing Defendant’s
criminal history. The district court therefore appropriately added one criminal
history point for each additional crime of violence Defendant committed, pled

21
guilty to, and was sentenced for on the same date as the aforementioned Assault
count. (PSR ¶ 25.)
The language of the United States Sentencing Guidelines is clear. Pursuant
to § 4A1.1(e), in computing a defendant’s criminal history, the district court shall
“[a]dd 1 point for each prior sentence resulting from a conviction of a crime of
violence that did not receive any points under (a), (b), or (c) above because such
sentence was counted as a single sentence, up to a total of 3 points for this
subsection.” U.S.S.G. § 4A1.1(e) (Nov. 2013.)4
It is clear from the record that Defendant was convicted of four felony
crimes of violence; namely, two counts of Assault with a Deadly Weapon
Inflicting Serious Injury and two counts of Discharge Weapon at Occupied
Property. (PSR ¶ 25.) The charging documents delineate that Defendant
“unlawfully, wilfully and feloniously” assaulted his victims with a handgun
inflicting serious injury and discharged a firearm into a building which was
occupied by multiple people. (CR 37; ER 57-59.)
The North Carolina sentencing minute entry states that Defendant’s
sentences were “consolidated for judgment.” However, he was still held
responsible for each and every crime he committed. (CR 37; ER 50.) Defendant
4
As defined in U.S.S.G. § 4A1.2(a)(2), prior sentences for multiple crimes are
counted as a single sentence in computing a defendant’s criminal history when “the
sentences were imposed on the same day.”

22
was merely sentenced on the same date for all offenses and received concurrent
terms of imprisonment for each count. (CR 37; ER 50.)
Defense counsel at time of sentencing did not dispute the Presentence Report
Writer’s calculation of Defendant’s criminal history. In fact, he stated that he
“didn’t object to the calculation of the additional three points because it is correct
pursuant to the guidelines.” (RT 5/20/2013 10; ER 108.) Defendant now asserts
that the district court committed procedural error in this case when it “assigned an
additional three criminal history points for the second count of assault.” (Op. Br.
at 30.)
However, this characterization of the district court’s rationale for imposing
the three additional criminal history points is not entirely correct. Defendant was
sentenced for all of his North Carolina crimes of violence on the same date. He
therefore initially only received three criminal history points as assigned to the first
Assault conviction. Imposition of one point for each additional crime of violence
Defendant committed was therefore required, and appropriate, pursuant to
U.S.S.G. § 4A1.1(e). The district court committed no error in assessing these
points.

23
D. The District Court Did Not Clearly Err in Withholding a Third-
Level Reduction Despite Defendant’s Proffered Acceptance of
Responsibility.5
The factual determination of a district court whether to award a defendant a
reduction in offense level due to his proffered acceptance of responsibility is
reviewed for clear error. United States v. Johnson, 581 F.3d 994, 1001 (9th Cir.
2009). Similarly, a district court’s decision to award an additional one-level
reduction pursuant to U.S.S.G. § 3E1.1(b) is also reviewed for clear error. United
States v. Villasenor-Cesar, 114 F.3d 970, 973 (9th Cir. 1997). Application and
interpretation of the sentencing guidelines, however, is subject to de novo review.
Johnson, 581 F.3d 994 at 1001.
2. Argument
Pursuant to the Guidelines, Defendant is entitled to a two-level reduction in
offense level if he demonstrates an acceptance of responsibility. U.S.S.G.
§ 3E1.1(a). The Government has the authority, pursuant to U.S.S.G. § 3E1.1(b), to
move for an additional one-level reduction, provided Defendant “assisted
authorities in the investigation or prosecution of his own misconduct by timely
5
The defendant filed a Pro Se Supplemental Opening Brief alleging for the first
time on appeal that the district court erred when it declined to award a third point
of acceptance of responsibility under U.S.S.G. § 3E1.1(b). That brief was stricken
by this Court, but if this Court nonetheless chooses to consider the issue, the
district court did not clearly err in denying a third-level reduction for acceptance of
responsibility.

24
notifying authorities of his intention to enter a plea of guilty.” A defendant’s
neglect to timely notify the authorities that he intended to plead guilty is a
sufficient basis to withhold the additional reduction. Villasenor-Cesar, 114 F.3d at
974. On November 1, 2013, the Sentencing Commission amended Application
Note 6 to U.S.S.G. § 3E1.1(b), to add the following guidance: “The government
should not withhold such a motion based on interests not identified in § 3E1.1,
such as whether the defendant agrees to waive his or her right to appeal.”
On August 22, 2012, Defendant requested a jury trial be set in his case. He
then moved the district court to continue that jury trial four separate times to
November 6, 2012, December 4, 2012, January 2, 2013, and finally February 5,
2013. The Government filed six separate pleadings in the course of trial
preparation. As reflected in the Government’s Notice, by the time Defendant
entered his guilty plea before the Court efforts had already begun to locate, and
arrange travel for, out-of-state witnesses in “California, Alabama, New Mexico,
and Texas.” (CR 38; SER 45.)
Defense counsel claimed at sentencing that Defendant did accept
responsibility for his crime and was not “intransigent or [] intentionally
uncooperative with the government.” (RT 5/20/2013 11; ER 109.) However, the
record reflects a pattern of trial continuances and pre-trial motion practice, none of
which is consistent with a defendant intending to admit his guilt. Defendant’s

25
untimely notice to the Government and district court of his intent to plead guilty
was not consistent with the rationale of U.S.S.G. § 3E1.1(b). Because of his
actions, the Government did not “avoid preparing for trial” and Defendant did not
“permit[] the government and the court to allocate their resources efficiently.”
U.S.S.G. § 3E1.1(b).
This Court has previously held that “[b]ecause of the district court’s unique
position, its determination regarding acceptance of responsibility is not to be
disturbed unless it is without foundation.” United States v. Innie, 7 F.3d 840, 848
(9th Cir. 1993)(quotation omitted)(emphasis in original). Defendant was sentenced
on May 20, 2013, over five months prior to the Guidelines clarification of U.S.S.G.
§ 3E1.1(b). On November 5, 2013, in a supplemental letter filed in United States
v. Vanegas-Ortiz, No. 12-10135, the Government advised this Court that it
believed the amendment to § 3E1.1 was retroactively applicable to a defendant
whose direct appeal from his sentence is not yet final, citing United States v.
Catalan, 701 F.3d 331, 333 (9th Cir. 2012).
In this case, however, no remand is required. The Government did not
decline to move for a third point of acceptance of responsibility solely because
Defendant declined to waive his right to appeal. The Government was also basing
its decision on the pre-trial motion practice and trial preparation which had already
taken place prior to Defendant’s guilty plea. Thus, the new guideline amendment

26
does not affect the result in this case. The district court did have appropriate
foundation for sustaining the Government’s motion to withhold imposition of the
third-point reduction.

27
VIII. CONCLUSION
For the foregoing reasons, the sentence imposed should be affirmed.
JOHN S. LEONARDO
United States Attorney
District of Arizona
MARK S. KOKANOVICH
Deputy Appellate Chief
s/ Rachel Reames Stoddard
RACHEL REAMES STODDARD
Assistant U.S. Attorney

28
IX. STATEMENT OF RELATED CASES
To the knowledge of counsel, there are no related cases pending.

29
X. CERTIFICATE OF COMPLIANCE PURSUANT TO FED. R. APP.
P. 32(a)(7)(C) AND CIRCUIT RULE 32-1 FOR CASE NO. 13-10269
I certify that: (check appropriate option(s))
1. Pursuant to Fed. R. App. P. 32(a)(7)(C) and Ninth Circuit Rule 32-1,
the attached opening/answering/reply/cross-appeal brief is
Proportionately spaced, has a typeface of 14 points or more and
contains words (opening, answering, and the second and third briefs filed in
cross-appeals must not exceed 14,000 words; reply briefs must not exceed 7,000
words), or is
Monospaced, has 10.5 or fewer characters per inch and contains
words or lines of text (opening, answering, and the second and third briefs filed
in cross-appeals must not exceed 14,000 words or 1,300 lines of text; reply briefs
must not exceed 7,000 words or 650 lines of text).
2. The attached brief is not subject to the type-volume limitations of
Fed. R. App. P. 32(a)(7)(B) because
This brief complies with Fed. R. App. P. 32(a)(1)-(7) and is a
principal brief of no more than 30 pages or a reply brief of no more than 15 pages;
This brief complies with a page or size-volume limitation established
by separate court order dated and is
Proportionately spaced, has a typeface of 14 points or more and
contains words, or is
Monospaced, has 10.5 or fewer characters per inch and contains
pages or words or lines of text.
June 17, 2014 s/ Rachel Reames Stoddard
Date Assistant U.S. Attorney

30
XI. CERTIFICATE OF SERVICE
I hereby certify that on June 17, 2014, I electronically filed the foregoing
with the Clerk of the Court for the United States Court of Appeals for the Ninth
Circuit by using the appellate CM/ECF system.
I certify that all participants in the case are registered CM/ECF users and
that service will be accomplished by the appellate CM/ECF system.
s/ Rachel Reames Stoddard
RACHEL REAMES STODDARD
Assistant U.S. Attorney

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