United States v. Bladimir, No. 15-50205 (9th Cir. 2017)Annotate this Case
Defendant appealed his conviction and sentence for being a removed alien found in the United States in violation of 8 U.S.C. 1326. The court concluded that the district court's failure to consult defendant's counsel before responding to a jury note, regarding defendant's removal date, violated Federal Rule of Criminal Procedure 43 and the Sixth Amendment. The court concluded that the error was constitutionally harmful because much of the government's documentary evidence concerning defendant's prior removal contained demonstrable errors, and because defense counsel, had she been consulted, would have specifically requested that the trial court instruct the jury that the government was required to prove the removal date beyond a reasonable doubt. Therefore, the court vacated the sentence and strike the special finding. On remand, the court explained that the government may elect to retry the removal date issue before a sentencing jury, or it may request that the district court resentence defendant under the two-year sentencing provision in section 1326(a). Upon remand, the court instructed that the case shall be reassigned to a different district court judge.