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--------------------------------------------------------------------------------
Case Name:
USA V CASTILLO-RIVERA 
Case Number: Date Filed: 
00-50046 03/26/01 
--------------------------------------------------------------------------------
FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,
                                                     No. 00-50046
Plaintiff-Appellee,
                                                     D.C. No.
v.                                                    CR 98-646 JSL

JOSE DE JESUS CASTILLO-RIVERA,
                                                     OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the Central District of California
J. Spencer Letts, District Judge, Presiding

Argued and Submitted
February 15, 2001--Pasadena, California

Filed March 26, 2001

Before: A. Wallace Tashima and Raymond C. Fisher,
Circuit Judges, and Thomas S. Zilly, District Judge.*

Opinion by Judge Tashima
_________________________________________________________________
*The Honorable Thomas S. Zilly, United States District Judge for the
Western District of Washington, sitting by designation.

COUNSEL

Maria Elena Stratton, Federal Public Defender, Los Angeles,
California, for the defendant-appellant.

                               3709

Wesley Hsu, Assistant United States Attorney, Los Angeles,
California, for the plaintiff-appellee.
_________________________________________________________________
OPINION

TASHIMA, Circuit Judge:

Jose de Jesus Castillo-Rivera ("Castillo"), a Mexican citi-
zen who pled guilty to illegal reentry after deportation in vio-
lation of 8 U.S.C. S 1326, appeals the sentence enhancement
for removal subsequent to conviction for an aggravated fel-
ony. Castillo contends that his prior state conviction for vio-
lating California Penal Code ("CPC") S 12021(a) as a felon in
possession of a firearm does not constitute an aggravated fel-
ony under 8 U.S.C. S 1101(a)(43)(E), because it is not "an
offense described in" 18 U.S.C. S 922(g)(1), the federal felon
in possession statute. The state crime, unlike S 922(g), does
not include any interstate or foreign commerce element. Cas-
tillo also raises for the first time on appeal a challenge to his
sentence under Apprendi v. New Jersey, 530 U.S. 466 (2000),
on the ground that his prior conviction was neither admitted
nor proven beyond a reasonable doubt. We have jurisdiction
pursuant to 28 U.S.C. S 1291 and 18 U.S.C.S 3742(a), and
we affirm.

I. Background

Castillo pled guilty to a single-count indictment charging
him as an alien unlawfully found in the United States follow-
ing deportation, in violation of 8 U.S.C. S 1326. The indict-
ment alleged that he had been deported on three occasions--
in 1995, 1997, and 1998--and was subsequently found in the
United States without permission from the Attorney General.
The revised presentence report ("PSR") concluded that a 16-
level enhancement applied under U.S.S.G. S 2L1.2(b)(1)(A)
because Castillo was deported after conviction for an aggra-

                               3710
vated felony. In 1992, Castillo had been convicted of two fel-
ony counts in Orange County Superior Court, for being a
felon in possession of a handgun pursuant to CPCS 12021(a),
and for possession of a handgun in violation of a condition of
probation pursuant to CPC S 12021(d). He was sentenced to
365 days in county jail. The PSR concluded that the enhance-
ment applied because Castillo's prior conviction under CPC
S 12021(a) constituted an aggravated felony within the mean-
ing of 8 U.S.C. S 1101(a)(43), both as an offense described in
S 922(g)(1), and as a crime of violence for which the term of
imprisonment is at least one year. Applying the enhancement,
the district court sentenced Castillo to a term of 70 months'
imprisonment and three years of supervised release.

II. Analysis

A. Aggravated Felony Enhancement

We review the district court's interpretation of the Sentenc-
ing Guidelines and the aggravated felony statute de novo.
United States v. Sandoval-Barajas, 206 F.3d 853, 854 (9th
Cir. 2000).

[1] Castillo contends that his conviction under CPC
S 12021(a)1 does not constitute an aggravated felony under
S 2L1.2(b)(1)(A). The guideline defines an aggravated felony
by reference to 8 U.S.C. S 1101(a)(43). See U.S.S.G. S 2L1.2,
cmt. n.1 (1998). Section 1101(a)(43) provides, in relevant
part:
_________________________________________________________________
1 Section 12021(a)(1) provides:

       Any person who has been convicted of a felony under the laws
      of the United States, of the State of California, or any other state,
      government, or country, or of an offense enumerated in subdivi-
      sion (a), (b), or (d) of Section 12001.6, or who is addicted to the
      use of any narcotic drug, who owns or has in his her possession
      or under his or her custody or control any firearm is guilty of a
      felony.

Cal. Pen. Code S 12021(a)(1).

                               3711
      The term "aggravated felony" means--

      . . .

      (E) an offense described in--

       . . .

       (ii) section 922(g)(1) . . . of Title 18
      (relating to firearms offenses);

       . . .

      (F) a crime of violence (as defined in sec-
      tion 16 of Title 18, but not including a
      purely political offense) for which the term
      of imprisonment [is] at least one year[.]

8 U.S.C. S 1101(a)(43). It further provides that:

      The term applies to an offense described in this para-
      graph whether in violation of Federal or State law
      and applies to such an offense in violation of the law
      of a foreign country for which the term of imprison-
      ment was completed within the previous 15 years.

Id. Castillo's contention that his conviction for being a felon
in possession of a firearm does not constitute an aggravated
felony rests on the fact that the CPC S 12021(a) offense,
unlike S 922(g)(1),2 does not require an interstate or foreign
commerce nexus.
_________________________________________________________________
2 Section 922(g)(1) provides:

      It shall be unlawful for any person--

      (1) who has been convicted in any court of, a crime punish-
      able by imprisonment for a term exceeding one year;

      . . .

                               3712
The government contends that the commerce element of the
federal statute is merely jurisdictional; therefore, that Castil-
lo's state conviction for being a felon in possession of a fire-
arm constitutes an aggravated felony under 8 U.S.C.
S 1101(a)(43)(E), as an offense described inS 922(g)(1).

In determining whether a state conviction constitutes an
aggravated felony under 8 U.S.C. S 1101(a)(43), we employ
the categorical approach described in Taylor v. United States,
495 U.S. 575 (1990). See, e.g., Ye v. INS, 214 F.3d 1128,
1131-33 (9th Cir. 2000); Sandoval-Barajas, 206 F.3d at 855-
56; United States v. Lomas, 30 F.3d 1191, 1193 (9th Cir.
1994). The categorical approach generally requires courts to
"look at the state statutory definition of the crime rather than
the underlying factual circumstances, to determine whether it
is the crime referred to in the federal statute. " Sandoval-
Barajas, 206 F.3d at 856. Under such an approach, "the issue
is not whether [the] actual conduct constituted an aggravated
felony, but whether the full range of conduct encompassed by
[the state statute] constitutes an aggravated felony." Id. (quot-
ing Lomas, 30 F.3d at 1193) (alterations in original). Accord-
ingly, courts may avoid "the enormous problems of re-
litigating past convictions, especially in cases where the
defendant pleads guilty and there is no record of the underly-
ing facts." Lomas, 30 F.3d at 1193.

[2] Here, "[t]he elements of the offense proscribed by
S 12021 are conviction of a felony and ownership, possession,
custody or control of a firearm. Knowledge is also an element
of the offense." People v. Jeffers, 49 Cal. Rptr. 2d 86, 89 (Ct.
App. 1996) (citations omitted). To the extent that the full
_________________________________________________________________
      to ship or transport in interstate or foreign commerce, or possess
      in or affecting commerce, any firearm or ammunition; or to
      receive any firearm or ammunition which has been shipped or
      transported in interstate or foreign commerce.

18 U.S.C. S 922(g)(1).

                               3713
range of conduct encompassed by CPC S 12021(a) may not
constitute an aggravated felony as an offense described in 18
U.S.C. S 922(g)(1) (e.g., S 12021(a) appears to include the
possession of a firearm by an individual convicted of speci-
fied misdemeanors, as well as by one "who is addicted to the
use of any narcotic drug"), the court may follow a "modified
categorical approach" by looking to the charging paper and
judgment of conviction to determine if the actual state offense
of which the defendant was convicted qualifies. Ye, 214 F.3d
at 1133; see also United States v. Bonat, 106 F.3d 1472,
1476-77 (9th Cir. 1997) (discussing Taylor analysis in the
context of a guilty plea and what documents may be consid-
ered by the court to establish a prior conviction). Here the
state charge and judgment order make clear, and there does
not appear to be any dispute, that Castillo pled guilty to a
generic offense of being a felon in possession of a handgun.3

[3] Neither the state statute nor the charge to which Castillo
pled guilty, however, specifies whether the firearm had a con-
nection to interstate or foreign commerce, as would be
required under S 922(g). Castillo contends that because the
full range of conduct encompassed by the state statute in
question includes possession of a firearm without an interstate
or foreign commerce nexus, his conviction does not constitute
an aggravated felony as an offense described in the federal
felon in possession provision. We are thus squarely presented
with the precise question we left open in Sandoval-Barajas--
whether the commerce element of S 922(g) "matters, or
_________________________________________________________________
3 The California felony complaint to which Castillo pled guilty provided:

      Count 1: On or about 8-20-92, JOSE RIVERA CASTILLO, in
      violation of Section 12021(a) of the Penal Code, a FELONY, did
      willfully and unlawfully own and have in his/her possession and
      under his/her custody and control a firearm, to wit: HANDGUN,
      the said defendant having theretofore been duly and legally con-
      victed of a felony, to wit, the crime of ROBBERY in violation
      of Section 212.5(B) of the Penal Code on 2-28-92, by and before
      the SUPERIOR Court of the State of CALIFORNIA, in and for
      the County of ORANGE.

                               3714
whether it is merely a jurisdictional basis not essential to
whether the state crime is an aggravated felony. " 206 F.3d at
856 (holding a state conviction not to be an offense described
in S 922(g)(5) on other grounds). We hold that the commerce
nexus requirement of S 922(g) "is merely a jurisdictional
basis"; therefore, we conclude that Castillo's prior conviction
under CPC S 12021(a) constitutes an aggravated felony, as an
offense described in S 922(g)(1).

[4] The wording of 8 U.S.C. S 1101(a)(43) makes evident
that Congress clearly intended state crimes to serve as predi-
cate offenses for the purpose of defining what constitutes an
aggravated felony. Section 1101(a)(43) explicitly states that
"[t]he term applies to an offense described in this paragraph
whether in violation of Federal or State law." 8 U.S.C.
S 1101(a)(43). Moreover, S 1101(a)(43)(E) defines aggra-
vated felony as "an offense described in" several federal stat-
utory provisions, including S 922(g)(1). Id. As we have
previously noted, Congress "as a practical matter. . . had to
use some looser standard such as `described in' rather than the
more precise standard of `defined in,' if it wanted more than
a negligible number of state offenses to count as aggravated
felonies." Sandoval-Barajas, 206 F.3d at 855.

Interpreting the jurisdictional element of S 922(g) to be
necessary in order for a state firearms conviction to constitute
an aggravated felony under S 1101(a)(43)(E)(ii) would reduce
the number of state firearms offenses that qualify to no more
than a negligible number. Rarely, if ever, would a state fire-
arms conviction specify whether a commerce nexus exists.4 If
_________________________________________________________________
4 We also note that the aggravated felony statute explicitly includes
predicate offenses "in violation of the law of a foreign country for which
the term of imprisonment was completed within the previous 15 years."
8 U.S.C. S 1101(a)(43). Needless to say, a foreign offense would likely
never contain an interstate commerce nexus. Although a foreign com-
merce nexus would be a possibility, there is still no reason to believe that
anything other than a negligible number of foreign offenses would qualify
because it is the Commerce Clause of the U.S. Constitution that lends such
an element any legal significance. See U.S. Const. Art. I, S 8, cl. 3.

                               3715
we were to construe the jurisdictional nexus of the federal
felon in possession provision to be a necessary element for a
state crime to qualify as an aggravated felony, we would
undermine the language of the aggravated felony statute and
the evident intent of Congress.

The relevant sentencing guideline also supports this conclu-
sion. The applicable guideline provides: " `Firearms offense'
means any offense covered by Chapter Two, Part K, Subpart
2 [which includes 18 U.S.C. S 922(g)], or any similar offense
under state or local law." U.S.S.G. S 2L1.2, cmt. n.1 (1998)
(emphasis added). Application note 5 indicates that the term
"firearms offense" is meant to refer to certain aggravated felo-
nies that trigger an enhancement pursuant to S 2L1.2(b)
(1)(A), the guideline provision under which Castillo's sen-
tence was enhanced. Furthermore, S 1101(a)(43)(E)(ii)
includes a parenthetical after listing particular offenses such
as S 922(g)(1) that describes them as "relating to firearms
offenses." 8 U.S.C. S 1101(a)(43)(E)(ii). Thus the guideline
itself also clearly anticipated that "similar " state firearms
offenses would constitute aggravated felonies underS 1101(a)
(43)(E). As discussed above, requiring a commerce nexus as
a necessary element of a state firearms offense would essen-
tially eliminate the possibility of any analogous state convic-
tion qualifying as an aggravated felony.

[5] Finally, we have previously characterized the commerce
element of S 922(g) as essentially nothing more than a mere
jurisdictional requirement that is not meant to narrow the sub-
stantive offense of possession of a firearm by a felon. Uphold-
ing the provision against a constitutional challenge after
United States v. Lopez, 514 U.S. 549 (1995), we stated:

      As the Supreme Court noted in discussing section
      1202(a) [the predecessor of 18 U.S.C. S 922(g)(1)],
      "Congress sought to reach possessions broadly, with
      little concern for when the nexus with commerce
      occurred." Scarborough [v. United States], 431 U.S.

                               3716
      [563,] 577 [(1977)]. In amalgamating sections
      922(g), 922(h), and 1202(a), Congress gave no indi-
      cation that it meant to narrow the statutory reach
      with respect to possession. Accordingly, we hold
      that the Scarborough minimal nexus standard applies
      to section 922(g) and that a past connection is
      enough.

United States v. Hanna, 55 F.3d 1456, 1462 (9th Cir. 1995)
(quoting United States v. Sherbondy, 865 F.2d 996, 1000-01
(9th Cir. 1988)). Consequently, we do not believe that this
minimal jurisdictional nexus was meant substantially to nar-
row or to eliminate the range of state offenses that Congress
intended to incorporate under S 1101(a)(43)(E)(ii) when it
defined aggravated felony as "an offense as described" in 18
U.S.C. S 922(g). We thus hold that a state felon in possession
offense is not required to include a commerce nexus as one

of its elements in order to qualify as an aggravated felony for
sentencing purposes.5

B. Apprendi Challenge

Castillo raises for the first time on appeal the contention
that his sentence violates his constitutional rights under
Apprendi because his prior aggravated felony conviction was
neither admitted nor proven to a jury beyond a reasonable
doubt. A claim under Apprendi raised for the first time on
appeal is reviewed for plain error. United States v. Nordby,
225 F.3d 1053, 1059-60 (9th Cir. 2000).

Our recent decision in United States v. Pacheco-Zepeda,
No. 99-50720, 2000 WL 33156290 (9th Cir. Feb. 8, 2001),
however, forecloses Castillo's Apprendi claim:
_________________________________________________________________
5 Because we hold that Castillo's prior conviction under CPC S 12021(a)
is an aggravated felony under S 1101(a)(43)(E), we do not reach the gov-
ernment's alternative contention that the same conviction also constitutes
an aggravated felony under 8 U.S.C. S 1101(a)(43)(F).

                               3717
      [United States v.] Almendarez-Torres[ , 523 U.S. 224
      (1998)] is dispositive here. The district court was
      entitled to consider any prior aggravated felony con-
      victions in sentencing Pacheco-Zepeda for illegal
      reentry even though such conduct had not been
      charged in the indictment, presented to a jury, and
      proved beyond a reasonable doubt.

Id. at *3. Upholding a sentence enhancement under analogous
circumstances, we specifically rejected in Pacheco-Zepeda
the same argument Castillo makes that Almendarez-Torres is
no longer viable precedent and that it should be limited
strictly to its unique facts (i.e., defendant admitted his prior
aggravated felony convictions on the record). Id. at *4-5.
Moreover, Pacheco-Zepeda leaves no doubt that the recidi-
vism exception to Apprendi's holding is not, contrary to Cas-
tillo's suggestion, somehow inapplicable to an aggravated
felony enhancement under 8 U.S.C. S 1326 because removal
must have been subsequent to an aggravated felony convic-
tion. The Supreme Court "unmistakably carved out an excep-
tion for `prior convictions' that specifically preserved the
holding of Almendarez-Torres." Id.  at *4.

III. Conclusion

We conclude that Castillo's prior state conviction for being
a felon in possession of a firearm under CPC S 12021(a) con-
stitutes an aggravated felony "as an offense described in" 18
U.S.C. S 922(g)(1), pursuant to U.S.S.G. S 2L1.2(b)(1)(A)
and 8 U.S.C. S 1101(a)(43)(E)(ii). We also deny his Apprendi
challenge to the sentence enhancement imposed. Accordingly,
the sentence is

AFFIRMED.

                               3718


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