                            NOT FOR PUBLICATION

                     UNITED STATES COURT OF APPEALS                          FILED
                            FOR THE NINTH CIRCUIT                             MAR 25 2011

                                                                         MOLLY C. DWYER, CLERK
                                                                           U .S. C O U R T OF APPE ALS

UNITED STATES OF AMERICA,                         No. 09-10463

              Plaintiff - Appellee,               D.C. No. 2:08-cr-00421-WBS-1

  v.
                                                  MEMORANDUM *
TERRENCE BRECKENRIDGE,

              Defendant - Appellant.



                   Appeal from the United States District Court
                        for the Eastern District of California
                 William B. Shubb, Senior District Judge, Presiding

                       Argued and Submitted March 14, 2011
                             San Francisco, California

Before: PAEZ, BERZON, and BEA, Circuit Judges.

       Terrence Breckenridge appeals the 60-month sentence imposed following

his guilty plea to being a felon in possession of a firearm, in violation of 18 U.S.C.

§ 922(g)(1). Breckenridge argues that the base offense level for his sentence was

improperly increased under U.S.S.G. § 2K2.1(a)(4), and that as a result, his



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
sentence must be vacated. We have jurisdiction under 28 U.S.C. § 1291, and we

review de novo whether a prior conviction qualifies for a sentencing enhancement.

United States v. Almazan-Becerra, 537 F.3d 1094, 1097 (9th Cir. 2008). We

affirm.

      To determine whether a defendant’s prior conviction constitutes a

“controlled substance offense” under U.S.S.G. § 2K2.1(a)(4), we first compare the

categorical language of the statute of conviction with the Guideline definition of a

“controlled substance offense.” The parties agree—as they must—that a violation

of California Health & Safety Code § 11352(a) is not categorically a “controlled

substance offense” within the meaning of U.S.S.G. § 2K2.1(a)(4). See Young v.

Holder, --- F.3d ----, 2011 WL 257898 *4 (9th Cir. 2011).

      Applying the modified categorical approach, Breckenridge argues that his

1993 conviction does not qualify as a “controlled substance offense” within the

meaning of U.S.S.G. § 2K2.1(a)(4). In particular, Breckenridge argues that the

grand jury transcript associated with his 1993 conviction is not judicially

noticeable evidence of the facts of his conviction under Shepard v. United States,

544 U.S. 13 (2005).

      The transcript of Breckenridge’s 1993 plea colloquy demonstrates that the

state court relied on the grand jury transcript as a factual basis for Breckenridge’s


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no contest plea. The plea transcript proves that Breckenridge’s attorney and the

state prosecutor both agreed to this approach. Breckenridge contends that the

grand jury transcript is not judicially noticeable under Shepard because

Breckenridge’s attorney—but not Breckenridge himself—stipulated that the grand

jury transcript supplied a factual basis for his 1993 plea. Breckenridge argues that

if a defendant does not personally confirm that a document provides the factual

basis for his plea, the document is not judicially noticeable under Shepard.

      We disagree. The California Supreme Court permits defense counsel to

stipulate to a factual basis for a client’s plea. People v. Holmes, 32 Cal. 4th 432,

442 (2004). In this context, we have held that facts admitted by defense counsel in

the defendant’s presence during a plea colloquy constitute admissions by the

defendant. See United States v. Hernandez-Hernandez, 431 F.3d 1212, 1219 (9th

Cir. 2006) (holding that a defendant was bound by his lawyer’s stipulation to the

factual basis supporting his prior California state court plea agreement); United

States v. Ferreboeuf, 632 F.2d 832, 836 (9th Cir. 1980).

      Because the stipulation by Breckenridge’s attorney can be imputed to

Breckenridge, we hold that the grand jury transcript is judicially noticeable under

Shepard. Breckenridge does not argue in his brief that the grand jury transcript, if

allowed under Shepard, fails to demonstrate that he was convicted of a “controlled


                                           3
substance offense” within the meaning of U.S.S.G. § 2K2.1(a)(4). Therefore, we

affirm the district court’s application of U.S.S.G. § 2K2.1(a)(4).

      AFFIRMED.




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