United States v. Mitchell Hooks

FILED NOT FOR PUBLICATION APR 23 2019 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 18-10360 Plaintiff-Appellee, D.C. No. 2:17-cr-00188-HDM-VCF-1 v. MITCHELL ANTHONY HOOKS, MEMORANDUM* Defendant-Appellant.

Appeal from the United States District Court for the District of Nevada Howard D. McKibben, District Judge, Presiding Submitted April 19, 2019** San Francisco, California Before: BEA and N.R. SMITH, Circuit Judges, and MÁRQUEZ,*** District Judge.

Mitchell Hooks appeals the district court’s judgment sentencing him to a 32- month prison sentence for being a felon in possession of a firearm, in violation of * 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 Rosemary Márquez, United States District Judge for the District of Arizona, sitting by designation. 18 U.S.C. § 922(g). We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742, and we affirm.

1. The district court did not err in applying a base offense level of 20 pursuant to § 2K2.1(a)(4)(A) of the United States Sentencing Guidelines. We review de novo whether a conviction qualifies as a “controlled substance offense” under the Sentencing Guidelines,1 Cabantac v. Holder, 736 F.3d 787, 792 (9th Cir. 2013) (per curiam), but we must “uphold the district court’s factual findings used to support a sentencing enhancement absent clear error.” United States v. Mattarolo, 209 F.3d 1153, 1159 (9th Cir. 2000). There is no clear error here, because there are judicially noticeable documents in the record—e.g., Hooks’s state plea agreement and the charging document—on which the court could rely and which clearly establish that the possession of cocaine was an element of Hooks’s state law conviction.2 See Reina-Rodriguez v. United States, 655 F.3d 1182, 1191 (9th Cir. 2011) (quoting Shepard v. United States, 544 U.S. 13, 16 (2005)).

2. The district court did not err in considering documents produced by a probation officer rather than a government attorney. Courts are statutorily permitted to consider a probation officer’s calculations of the applicable sentencing guideline ranges,3 and they are likewise permitted to consider judicially-reviewable documentation provided by the same probation officer in support of those calculations. Cf. United States v. Felix, 561 F.3d 1036, 1045 (9th Cir. 2009) (allowing review of “documents provided by the probation officer”).

AFFIRMED.