The district court applied a crime-of-violence enhancement pursuant to U.S.S.G. § 2K2.1(a)(4)(A) based on the defendant's prior conviction for assault with a deadly weapon in violation of Calif. Penal Code § 245(a)(1).
The defendant argued this was error because his 245 conviction was a wobbler for which he received a six-month sentence, and thus the conviction was actually a misdemeanor under California law. The Court rejected this argument on several grounds.
First, it held that because the defendant did not object to the PSR's characterization of the offense as a felony, the district court was entitled to find the conviction was a felony:
Pursuant to Rule 32(i)(3)(A), the district court “may accept any undisputed portion of the presentence report as a finding of fact.” The PSR clearly characterized Johnson’s assault with-a-deadly-weapon conviction as a felony. As discussed above, not only did Johnson fail to challenge that description, his counsel affirmatively represented to the court that he had two prior felony convictions, including the CPC § 245(a)(1) conviction at issue here. Additionally, Johnson and his attorney confirmed, in open court, the factual accuracy of the PSR. Because Johnson did not dispute that he had a felony conviction, the district court was entitled, under Rule 32, to accept as a fact the PSR’s characterization of his offense of conviction. Thus, pursuant to Rule 32, Johnson’s concessions in the district court foreclose his argument that his conviction was not a felony.Second, reviewing de novo, the Court concluded the conviction documents failed to show the conviction was a misdemeanor.
Finally, the Court held that Moncrieffe v. Holder, 569 U.S. 184 (2013), did not alter the conclusion that a felony conviction under § 245(a)(1) is a crime of violence. In its view, Moncrieffe’s upshot – that a state felony conviction for conduct potentially subject to both felony and misdemeanor punishment under the Controlled Substance Act cannot be a predicate offense under the categorical approach – is inapplicable to a § 245(a)(1) conviction. This is because a wobbler conviction is punishable as a felony, even if the court later exercises its discretion to reduce the offense to a misdemeanor.
