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) ...