United States v. James Nevels, III

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 5, 2021
• Docket: 19-30041
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 5 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 19-30041

Plaintiff-Appellee, D.C. No. 1:18-cr-00025-SPW-1 v.

JAMES N. NEVELS III, MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court for the District of Montana Susan P. Watters, District Judge, Presiding

Submitted March 3, 2021** Portland, Oregon

Before: PAEZ and WATFORD, Circuit Judges, and TUNHEIM,*** District Judge.

James Nevels, III appeals from the district court’s judgment imposing a

sentence of 180 months imprisonment and 5 years of supervised release.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable John R. Tunheim, Chief United States District Judge for the District of Minnesota, sitting by designation. Page 2 of 3

Specifically, Nevels challenges the district court’s application of a career-offender

enhancement under U.S.S.G. § 4B1.1 based on Nevels’s prior convictions for

controlled substance offenses. In imposing this sentence, the district court relied

solely on a presentence investigation report (PSR) that did not include the statutes

under which Nevels had previously been convicted. We affirm the district court’s

sentence.

The district court erred when it relied on a PSR that did not include the

statutes of conviction to impose a career-offender enhancement under U.S.S.G.

§ 4B1.1. See United States v. Pimentel-Flores, 339 F.3d 959, 967–68 (9th Cir

2003). The fact that Nevels’s predicate offenses were controlled substance

offenses, rather than crimes of violence, does not render reliance on the PSR

permissible because the district court was still obligated to perform a categorical

analysis, which requires analyzing the statutes of conviction. See United States v.

Shumate, 329 F.3d 1026, 1029 (9th Cir. 2003).

Because Nevels did not object below, we review only for plain error, and

here the district court’s error did not affect Nevels’s substantial rights. See United

States v. Olano, 507 U.S. 725, 734–35 (1993). The government has moved to

supplement the record with the documents that the probation officer reviewed in

preparing Nevels’s PSR, and those documents identify the statutes of conviction

for two of Nevels’s prior offenses. Rather than remand this case to the district Page 3 of 3

court to consider these same records, we take judicial notice of these documents

and conclude that the underlying convictions qualify as controlled substance

offenses under U.S.S.G. § 4B1.2. See United States v. Black, 482 F.3d 1035, 1041

(9th Cir. 2007). Indeed, Nevels does not contend that the underlying convictions

do not qualify as predicate offenses for a career-offender enhancement under the

sentencing guidelines. The convictions therefore support the application of a

career-offender enhancement under U.S.S.G. § 4B1.1.

The government’s motion to supplement the record, Dkt. 31, is GRANTED.

AFFIRMED.