United States v. Guerrero-Jasso, No. 12-10372 (9th Cir. 2014)
Annotate this CaseDefendant pled guilty to a one-count information alleging that he reentered the country without authorization after being removed, in violation of 8 U.S.C. 1326. On appeal, defendant challenged his 42-month sentence as exceeding the maximum sentence allowed under the operative statute. In this case, the district court accepted defendant's plea without requiring him to admit the removal date essential to the enhanced sentence. Because defendant did not admit to the 2011 removal date, the district court's sentence of more than two years, unlike the sentence in United States v. Mendoza-Zaragoza, did not rest on an admission by the defendant, and so violated Apprendi v. New Jersey. Accordingly, the court vacated and remanded for further proceedings.
Court Description: Criminal Law. The panel vacated a sentence and remanded for further proceedings in a case in which the defendant entered a plea of guilty to an information alleging that he reentered the country without authorization after being removed – a violation of 8 U.S.C. § 1326 – and received a 42-month sentence. The panel held that in applying the twenty-year statutory maximum penalty under 8 U.S.C. § 1326(b) instead of the two-year statutory maximum penalty, the district court impermissibly relied on a fact – that the defendant’s removal was subsequent to his aggravated felony conviction – that was neither admitted by the defendant nor found by a jury beyond a reasonable doubt, in violation of Apprendi v. New Jersey, 530 U.S. 466 (2000). The panel rejected the government’s contention that the defendant’s admission to the necessary conviction/removal sequence is satisfied by documents and statements that were not dependent on the guilty plea. The panel wrote that the district court incorrectly interpreted United States v. Mendoza-Zaragoza, 567 F.3d 431 (9th Cir. 2009), as holding that a guilty plea to a § 1326 indictment which alleges multiple removal dates establishes as a fact each removal date. Because the defendant did not admit to the only alleged removal date that succeeded the qualifying conviction, the panel held that the sentence of more than two years did not rest on an admission by the defendant, and therefore violated Apprendi. Distinguishing United States v. Zepeda-Martinez, 470 F.3d 909 (9th Cir. 2006), the panel concluded that the Apprendi error was not harmless. Judge Fernandez concurred in the majority opinion, with the exception of a paragraph – which he deemed brumal, overbroad, and unnecessary – discussing why an out-of-court confession cannot alone suffice to meet Apprendi requirements. Concurring, Judge Berzon wrote separately to express her concern that, under this court’s case law, harmless-error review based on post-conviction factual submissions could swallow up the Apprendi rule.
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