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United States v. Valle

United States Court of Appeals, Ninth Circuit

October 9, 2019

United States of America, Plaintiff-Appellee,
v.
Miguel Sebastian Valle, AKA Miguel Sebastian Balle, AKA Miguel Valle Cruz, AKA Miguel Valle Sebastian, Defendant-Appellant.

          Argued and Submitted July 10, 2019 Pasadena, California

          Appeal from the United States District Court for the Central District of California D.C. No. 8:18-cr-00043-JVS-1 James V. Selna, District Judge, Presiding

          Brianna Fuller Mircheff (argued), Deputy Federal Public Defender; Hilary Potashner, Federal Public Defender; Office of the Federal Public Defender, Los Angeles, California; for Defendant-Appellant.

          Lawrence E. Kole (argued), Assistant United States Attorney; Dennise D. Willett, Assistant United States Attorney, Chief, Santa Ana Branch Office; Nicola T. Hanna, United States Attorney; United States Attorney's Office, Santa Ana, California; for Plaintiff-Appellee.

          Before: Milan D. Smith, Jr. and Michelle T. Friedland, Circuit Judges, and Stanley A. Bastian, [*] District Judge.

         SUMMARY[**]

         Criminal Law

         The panel vacated a sentence for illegal reentry into the United States after deportation in violation of 8 U.S.C. § 1326, and remanded for resentencing.

         The panel held that-as the Government conceded-the district court erred in concluding that, in calculating the Sentencing Guidelines range, proof of continuous presence in the United States was not required.

         The panel held that the district court's alternative holding that, as a factual matter, the defendant was continuously present in the United States from 2004 to 2017 was also erroneous. The panel held that because enhancements depending on that continuous-presence finding raised the defendant's offense level by significantly more than 4 and far more than doubled his sentencing range, the Government was required to establish the defendant's continuous presence by clear and convincing evidence. The panel held that the Government cannot establish by clear and convincing evidence a non-citizen's continuous presence in the United States since the alleged time of reentry without submitting any direct evidence of where the non-citizen was for more than a decade. The panel gave some weight to the inference that a non-citizen who had previously returned after being removed and who had family in the United States would have made efforts to stay in the country. The panel concluded, however, that this inference is not enough to carry the Government's burden to prove the thirteen years of continuous presence in the United States necessary to support application of the enhancements to the defendant.

         The panel remanded for resentencing based on a Guidelines range of 1 to 7 months. Because the Government failed to carry its burden despite an extensive factual inquiry at the original sentencing, the panel held that on remand the Government may not submit new evidence of the defendant's whereabouts. Because the defendant has already been in custody for about 20 months, the panel ordered the mandate to be issued forthwith.

          OPINION

          FRIEDLAND, Circuit Judge:

         This appeal requires us to evaluate the Government's burden of proof in demonstrating the applicability of sentencing enhancements for an illegal reentry crime. Specifically, we consider whether the Government can establish by clear and convincing evidence a non-citizen's continuous presence in the United States since the alleged time of reentry without submitting any direct evidence of where the non-citizen was for more than a decade. We hold that it cannot. We give some weight to the inference that a non-citizen who had previously returned after being removed and who had family in the United States would have made efforts to stay in the country. But that inference is not enough to carry the Government's burden here to prove the thirteen years of continuous presence in the United States necessary to support the enhancements applied to Petitioner Miguel Valle's sentence. We therefore vacate and remand to the district court for resentencing.

         I.

         In 1998 and 2000, Miguel Valle was convicted of felony drug offenses in California state court.[1] Following prison terms for these convictions, Valle was removed from the United States in 1998 and 2002, respectively.

         On June 17, 2004, Valle was arrested in Santa Ana, California, for driving under the influence, but was not subsequently convicted or removed from the country. More than a decade later, on September 25, 2017, Valle was again arrested by the Santa Ana police, who notified federal immigration authorities of his presence. In June 2018, Valle pleaded guilty to a charge of illegal reentry into the United States after deportation, in violation of 8 U.S.C. § 1326.

         Valle's Pre-Sentence Report ("PSR") calculated his sentencing range under the United States Sentencing Guidelines Manual ("Guidelines" or "U.S.S.G.") starting from a base offense level of 8 and criminal history score of 2. Valle was eligible for additional sentencing enhancements if his 1998 and 2000 state drug convictions occurred within ten and fifteen years, respectively, of the start of his illegal reentry offense, so identifying the appropriate Guidelines range required determining when Valle's illegal reentry "commenced." See United States v. Salazar-Robles, 207 F.3d 648, 649-50 (9th Cir. 2000) (explaining that a § 1326 offense has only two elements: "illegal return and being found" in the United States).

         The PSR reasoned that Valle's illegal reentry had commenced by June 17, 2004, when he was arrested in Santa Ana. The PSR did not, however, describe any contact with law enforcement-despite the existence of an outstanding bench warrant related to his 2004 arrest-or any other information about Valle's whereabouts between June 2004 and September 2017, when he was arrested for the instant reentry offense. Using 2004 as the starting point for his illegal reentry crime, the PSR added 12 levels to his base offense level for his prior drug convictions according to U.S.S.G. § 2L1.2 and 5 points to his criminal history score under U.S.S.G. § 4A1.1.[2] Factoring in a 3 level downward adjustment for acceptance of responsibility, the PSR arrived at an offense level of 17, a criminal history score of 7, and a corresponding criminal history category of IV. The resulting recommended sentencing range was 37 to 46 months.

         Valle objected to treating June 17, 2004 as the date the offense began because there was no evidence in the PSR about whether or how many times he left the United States between that date and the date of his 2017 arrest. Instead, he suggested that the offense actually began on September 25, 2017, the date he was "found in" the United States within the meaning of 8 U.S.C. § 1326(a)(2). He contended that his 1998 and 2000 convictions were outside their respective ten-and fifteen-year windows from 2017 and therefore could not be counted in calculating either his offense level or criminal history category.[3] Without enhancements based on those convictions, Valle's proper offense level with a downward adjustment for acceptance of responsibility would have been 6, [4] with a criminal history category of II, leading to a corresponding Guidelines range of 1 to 7 months.

         At his sentencing hearing, Valle reiterated his objections, arguing that the Government needed to prove that he was continuously present in the United States from 2004 to 2017 through clear and convincing evidence, and that it had failed to do so. The Government, by contrast, agreed with the calculations in the PSR, asserting that there was "ample evidence" under the clear and convincing evidence standard for the district court to find that Valle had commenced the illegal reentry offense in 2004 and remained in the country thereafter. The Government contended that "the only reasonable inference" from the record was that Valle had remained in the United States from 2004 to 2017. It argued that he "ha[d] consistently resided in Santa Ana" since he first entered the country in the 1990s and that he had a pattern of returning to the United States (and, specifically, to Santa Ana) ...


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