United States v. Amador Mendoza

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 4, 2023
• Docket: 22-35364
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 4 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 22-35364

Plaintiff-Appellee, D.C. No. 2:11-cr-00181-WFN-14 v.

AMADOR SANCHEZ MENDOZA, AKA MEMORANDUM* Amador Sanchez,

Defendant-Appellant.

Appeal from the United States District Court for the Eastern District of Washington Wm. Fremming Nielsen, District Judge, Presiding

Argued and Submitted April 14, 2023 Seattle, Washington

Before: McKEOWN and DESAI, Circuit Judges, and SILVER,** District Judge.

Amador Sanchez Mendoza appeals the district court’s denial of his motion

to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255, arguing

that under United States v. Tucker, 404 U.S. 443 (1972), the sentencing judge

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Roslyn O. Silver, United States District Judge for the District of Arizona, sitting by designation. improperly considered prior convictions for violations of a state drug possession

statute that was later ruled unconstitutional by State v. Blake, 481 P.3d 521 (Wash.

2021). The district court denied the motion but granted a certificate of

appealability. Mendoza appealed, and we have jurisdiction under 28 U.S.C.

§§ 1291, 2253(a), and 2255(d). We review the denial of a § 2255 motion de novo

and affirm.

To succeed on his due process claim, Mendoza must, in part, establish the

invalidated convictions were “demonstrably made the basis for the sentence.”

United States v. Hill, 915 F.3d 669, 674 (9th Cir. 2019) (quoting United States v.

Vanderwerfhorst, 576 F.3d 929, 935–36 (9th Cir. 2009)). To meet this test, the

sentencing court must have “made it abundantly clear that [the challenged

information] was the basis for its sentence.” Id. (quoting Farrow v. United States,

580 F.2d 1339, 1359 (9th Cir. 1978) (en banc)). Merely referencing or mentioning

the challenged information is not enough. Id. at 675.

In denying Mendoza’s § 2255 motion, the district court judge, who was also

the sentencing judge, specifically stated he “did not enhance Mr. Mendoza’s

sentence based on the simple possession convictions, nor did the Court rely on

those convictions to determine the proper sentence within the parties’ agreed

range.” “Once the § 2255 judge makes a finding of no enhancement based on his

own recollection, this may not normally be overridden . . . [and] the judge’s own

2 estimation of the deleterious impact of the prior convictions on his determination

of sentence will not be reversed absent clearly contradictory evidence in the

record.” Farrow, 580 F.2d at 1355 (internal quotation marks and citations omitted).

The evidence does not clearly contradict the district court’s conclusion that

the simple possession convictions did not enhance Mendoza’s sentence. Mendoza

qualified as a career offender, and thus fell into Criminal History Category VI

under the guidelines, even without the three invalidated convictions. Cf. Tucker,

404 U.S. at 448 (the “real question” is “whether the sentence . . . might have been

different if the sentencing judge had known that at least two of the respondent’s

previous convictions had been unconstitutionally obtained”). The sentencing judge

mentioned those invalidated convictions only within the context of explaining why

a particular sentencing enhancement would not be applied. Moreover, the

sentencing judge made clear the sentence was based on Mendoza’s “danger to this

society,” his lengthy criminal history, and the likelihood of recidivism. The fact

that the sentencing judge mentioned two of the three invalidated convictions in the

colloquy is not enough. Hill, 915 F.3d at 675.

The evidence does not clearly contradict the district court’s conclusion that

Mendoza’s invalidated convictions were not “demonstrably made the basis” of his

sentence. Id. at 674.

AFFIRMED.