FILED NOT FOR PUBLICATION MAR 11 2024 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 22-50289
Plaintiff-Appellee, D.C. No. 3:14-cr-01288-DMS-1
v. MEMORANDUM* RANDY ALTON GRAVES,
Defendant-Appellant.
Appeal from the United States District Court for the Southern District of California Dana M. Sabraw, Chief District Judge, Presiding
Argued and Submitted February 13, 2024 Pasadena, California
Before: W. FLETCHER, NGUYEN, and LEE, Circuit Judges. Dissent by Judge LEE.
A jury convicted Defendant-Appellant Randy Graves of conspiracy to
distribute marijuana, conspiracy to distribute methamphetamine, and possession
with intent to distribute methamphetamine. This court vacated Graves’s life
sentence and remanded for re-sentencing. See United States v. Graves, 925 F.3d
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. 1036, 1038 (9th Cir. 2019).1 The district court re-sentenced Graves to 25 years in
prison.
Graves argues the district court erred at resentencing. He contends that the
court incorrectly determined that he was subject to an enhanced 15-year
mandatory-minimum sentence under 21 U.S.C. §§ 841(b)(1)(A)(vii) and (viii). He
also contends that the court erred by failing to grant a two-level reduction for
acceptance of responsibility under the Sentencing Guidelines. We have
jurisdiction under 28 U.S.C. § 1291. Because the district court plainly erred with
respect to the mandatory-minimum issue, we vacate and remand for another
resentencing.
We review the district court’s sentencing determinations for plain error
because Graves did not object to them. See United States v. Depue, 912 F.3d 1227,
1232 (9th Cir. 2019) (en banc). “Plain error is (1) error, (2) that is plain, and (3)
that affects substantial rights.” United States v. Bautista, 989 F.3d 698, 701-02
(9th Cir. 2021) (internal quotation omitted). If these conditions are met, “we may
exercise our discretion to notice an error that seriously affects the fairness,
1 Graves requested judicial notice of certain filings in his first appeal. Dkt. No. 7. “We may take judicial notice of court filings and other matters of public record.” Reyn’s Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d 741, 746 n.6 (9th Cir. 2006). Accordingly, we grant Graves’s request for judicial notice. 2 integrity, or public reputation of judicial proceedings.” Id. at 702 (internal
quotation omitted).
The district court plainly erred in determining that Graves had a prior
conviction for a “serious drug felony” that triggered an enhanced mandatory-
minimum sentence under 21 U.S.C. §§ 841(b)(1)(A)(vii) and (viii). The definition
of a “serious drug felony” is borrowed from the Armed Career Criminal Act
(ACCA), 18 U.S.C. § 924(e)(2). See 21 U.S.C. § 802(57). The ACCA defines a
“serious drug offense” as a state-law drug offense “for which a maximum term of
imprisonment of ten years or more is prescribed by law.” 18 U.S.C.
§ 924(e)(2)(A)(ii).
Graves pleaded guilty in 2002 to selling and furnishing cocaine in violation
of California Health and Safety Code (“CHSC”) § 11352(a). The parties now
dispute whether that offense carried a maximum term of imprisonment of ten years
or more. A violation of CHSC § 11352(a) is punishable by three, four, or five
years in prison. At the time Graves was sentenced for the CHSC violation,
California law obligated the sentencing judge to impose the middle term of four
years unless there were aggravating or mitigating circumstances, which the judge
would determine by considering enumerated factors. See Creech v. Frauenheim,
800 F.3d 1005, 1015 (9th Cir. 2015) (describing California’s determinate
3 sentencing scheme). Because Graves had a prior strike, the terms of imprisonment
under CHSC § 11352(a) were doubled to six, eight, or ten years. See Cal. Penal
Code § 667(e)(1). Graves was sentenced to the middle term of four years, doubled
to eight years.
The government argues Graves’s conviction was a serious drug felony
because his prior strike exposed him to a potential maximum term of imprisonment
of ten years. In United States v. Rodriquez, 553 U.S. 377, 382-83 (2008), the
Supreme Court held that courts must consider the effect of recidivist enhancements
when determining whether an offense carries a maximum term of imprisonment of
ten years or more under the ACCA. However, in Cunningham v. California, 549
U.S. 270, 292-93 (2007), the Court had previously held that California’s
determinate sentencing scheme violated the Sixth Amendment because it allowed
the imposition of an upper term sentence based on facts found by a judge and not a
jury. Accordingly, “the middle term specified in California’s statutes, not the
upper term,” was the maximum sentence a judge could impose absent a jury
finding of aggravated factors. Id. at 293.
Graves was sentenced for violating CHSC § 11352(a) in 2002, under the
scheme Cunningham later declared unconstitutional with respect to maximum
terms that could be imposed. There was no jury finding of aggravated factors
4 because he pleaded guilty. Accordingly, under Cunningham, he faced a maximum
sentence of the middle term of four years, doubled to eight years with a recidivist
enhancement. See 549 U.S. at 293. And because the offense did not carry a
maximum term of imprisonment of ten years or more, it did not qualify as a serious
drug felony. The district court erred on resentencing when it determined that
Graves was subject to an enhanced mandatory-minimum sentence of 15 years
under 21 U.S.C. §§ 841(b)(1)(A)(vii) and (viii).
Graves has shown at least a “reasonable probability” that he would have
received a different sentence absent the error. Bautista, 989 F.3d at 702 (internal
quotations omitted). The court twice referred to the 15-year mandatory minimum
during the resentencing hearing, and Graves argued for a total sentence of 15 years.
Although the district court appears to have based the sentence largely on the
Guidelines range, “our role is not to hypothesize about what the district court
would have done” absent the statutory error. United States v. Joseph, 716 F.3d
1273, 1281 (9th Cir. 2013) (emphasis in original). “Rather, where, as here, there is
a possibility that the district court would have exercised its discretion and arrived at
a lower overall sentence, the third prong of the plain error inquiry is satisfied.” Id.
(emphasis in original).
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FILED NOT FOR PUBLICATION MAR 11 2024 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 22-50289
Plaintiff-Appellee, D.C. No. 3:14-cr-01288-DMS-1
v. MEMORANDUM* RANDY ALTON GRAVES,
Defendant-Appellant.
Appeal from the United States District Court for the Southern District of California Dana M. Sabraw, Chief District Judge, Presiding
Argued and Submitted February 13, 2024 Pasadena, California
Before: W. FLETCHER, NGUYEN, and LEE, Circuit Judges. Dissent by Judge LEE.
A jury convicted Defendant-Appellant Randy Graves of conspiracy to
distribute marijuana, conspiracy to distribute methamphetamine, and possession
with intent to distribute methamphetamine. This court vacated Graves’s life
sentence and remanded for re-sentencing. See United States v. Graves, 925 F.3d
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. 1036, 1038 (9th Cir. 2019).1 The district court re-sentenced Graves to 25 years in
prison.
Graves argues the district court erred at resentencing. He contends that the
court incorrectly determined that he was subject to an enhanced 15-year
mandatory-minimum sentence under 21 U.S.C. §§ 841(b)(1)(A)(vii) and (viii). He
also contends that the court erred by failing to grant a two-level reduction for
acceptance of responsibility under the Sentencing Guidelines. We have
jurisdiction under 28 U.S.C. § 1291. Because the district court plainly erred with
respect to the mandatory-minimum issue, we vacate and remand for another
resentencing.
We review the district court’s sentencing determinations for plain error
because Graves did not object to them. See United States v. Depue, 912 F.3d 1227,
1232 (9th Cir. 2019) (en banc). “Plain error is (1) error, (2) that is plain, and (3)
that affects substantial rights.” United States v. Bautista, 989 F.3d 698, 701-02
(9th Cir. 2021) (internal quotation omitted). If these conditions are met, “we may
exercise our discretion to notice an error that seriously affects the fairness,
1 Graves requested judicial notice of certain filings in his first appeal. Dkt. No. 7. “We may take judicial notice of court filings and other matters of public record.” Reyn’s Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d 741, 746 n.6 (9th Cir. 2006). Accordingly, we grant Graves’s request for judicial notice. 2 integrity, or public reputation of judicial proceedings.” Id. at 702 (internal
quotation omitted).
The district court plainly erred in determining that Graves had a prior
conviction for a “serious drug felony” that triggered an enhanced mandatory-
minimum sentence under 21 U.S.C. §§ 841(b)(1)(A)(vii) and (viii). The definition
of a “serious drug felony” is borrowed from the Armed Career Criminal Act
(ACCA), 18 U.S.C. § 924(e)(2). See 21 U.S.C. § 802(57). The ACCA defines a
“serious drug offense” as a state-law drug offense “for which a maximum term of
imprisonment of ten years or more is prescribed by law.” 18 U.S.C.
§ 924(e)(2)(A)(ii).
Graves pleaded guilty in 2002 to selling and furnishing cocaine in violation
of California Health and Safety Code (“CHSC”) § 11352(a). The parties now
dispute whether that offense carried a maximum term of imprisonment of ten years
or more. A violation of CHSC § 11352(a) is punishable by three, four, or five
years in prison. At the time Graves was sentenced for the CHSC violation,
California law obligated the sentencing judge to impose the middle term of four
years unless there were aggravating or mitigating circumstances, which the judge
would determine by considering enumerated factors. See Creech v. Frauenheim,
800 F.3d 1005, 1015 (9th Cir. 2015) (describing California’s determinate
3 sentencing scheme). Because Graves had a prior strike, the terms of imprisonment
under CHSC § 11352(a) were doubled to six, eight, or ten years. See Cal. Penal
Code § 667(e)(1). Graves was sentenced to the middle term of four years, doubled
to eight years.
The government argues Graves’s conviction was a serious drug felony
because his prior strike exposed him to a potential maximum term of imprisonment
of ten years. In United States v. Rodriquez, 553 U.S. 377, 382-83 (2008), the
Supreme Court held that courts must consider the effect of recidivist enhancements
when determining whether an offense carries a maximum term of imprisonment of
ten years or more under the ACCA. However, in Cunningham v. California, 549
U.S. 270, 292-93 (2007), the Court had previously held that California’s
determinate sentencing scheme violated the Sixth Amendment because it allowed
the imposition of an upper term sentence based on facts found by a judge and not a
jury. Accordingly, “the middle term specified in California’s statutes, not the
upper term,” was the maximum sentence a judge could impose absent a jury
finding of aggravated factors. Id. at 293.
Graves was sentenced for violating CHSC § 11352(a) in 2002, under the
scheme Cunningham later declared unconstitutional with respect to maximum
terms that could be imposed. There was no jury finding of aggravated factors
4 because he pleaded guilty. Accordingly, under Cunningham, he faced a maximum
sentence of the middle term of four years, doubled to eight years with a recidivist
enhancement. See 549 U.S. at 293. And because the offense did not carry a
maximum term of imprisonment of ten years or more, it did not qualify as a serious
drug felony. The district court erred on resentencing when it determined that
Graves was subject to an enhanced mandatory-minimum sentence of 15 years
under 21 U.S.C. §§ 841(b)(1)(A)(vii) and (viii).
Graves has shown at least a “reasonable probability” that he would have
received a different sentence absent the error. Bautista, 989 F.3d at 702 (internal
quotations omitted). The court twice referred to the 15-year mandatory minimum
during the resentencing hearing, and Graves argued for a total sentence of 15 years.
Although the district court appears to have based the sentence largely on the
Guidelines range, “our role is not to hypothesize about what the district court
would have done” absent the statutory error. United States v. Joseph, 716 F.3d
1273, 1281 (9th Cir. 2013) (emphasis in original). “Rather, where, as here, there is
a possibility that the district court would have exercised its discretion and arrived at
a lower overall sentence, the third prong of the plain error inquiry is satisfied.” Id.
(emphasis in original). The fourth prong of the plain error test is also satisfied
5 because the error may have resulted in a longer sentence. See id. We accordingly
vacate and remand for resentencing with the correct mandatory minimum.
The district court did not plainly err by failing to grant a two-level
downward adjustment for acceptance of responsibility under the Sentencing
Guidelines. The court based its Guidelines calculations on the facts of the case and
the record as a whole. It did not apply a “per se bar to the acceptance of
responsibility reduction” based on Graves’s decision to go to trial. United States v.
Cortes, 299 F.3d 1030, 1039 (9th Cir. 2002). Moreover, Graves lied under oath at
trial, and he did not object when the court applied an upward adjustment for
obstruction of justice under U.S. Sentencing Guidelines § 3C1.1. Although Graves
eventually admitted guilt, the fact remains that he “waited until after the jury
returned a guilty verdict before showing contrition.” United States v. Reiche, 54
F.4th 1093, 1101 (9th Cir. 2022).
VACATED AND REMANDED.
6 FILED MAR 11 2024 United States v. Randy Graves, No. 22-50289 MOLLY C. DWYER, CLERK LEE, Circuit Judge, dissenting: U.S. COURT OF APPEALS
The majority opinion correctly points out that district court erred in
calculating the mandatory minimum sentence. But I do not believe that the court
committed plain error affecting Randy Graves’ 25-year sentence. An error does not
affect substantial rights unless there is a “reasonable probability” that, absent the
error, the defendant would have received a different sentence. United States v.
Depue, 912 F.3d 1227, 1234 (9th Cir. 2019) (en banc) (citations omitted).1
The record strongly suggests that the district court would have meted out a
25-year sentence, irrespective of its error. We know that because the district court
laid out the reasons for the sentence: the “extremely violent” nature of Graves’
crimes, his history of recidivism, and his choice to perjure himself during trial. The
district court also explained that it had tailored the sentence—five years below the
Sentencing Guidelines range—to allow Graves “time to continue the good work [he
was] doing in prison, [and] to be free at some point in [his] life.” And notably, the
district court did not reference the mandatory minimum when setting Graves’
sentence. I respectfully dissent.
1 Graves must show a “reasonable probability”—not just mere “possibility”—that his sentence would have been lower but for the error. The mere “possibility” standard applies only when a district court incorrectly concludes that it lacks discretion to impose a lower sentence—not where, as here, the district court exercised discretion in selecting a sentence. United States v. Joseph, 716 F.3d 1273, 1281 (9th Cir. 2013); United States v. Castillo-Casiano, 198 F.3d 787, 791 (9th Cir. 1999). 1