United States v. Rojas-Pedroza, No. 11-50379 (9th Cir. 2013)
Annotate this CaseDefendant challenged his conviction and sentence under 8 U.S.C. 1326(a) and (b) for being an alien found in the United States after removal. The court held that the district court correctly rejected defendant's collateral challenge to the validity of the removal order underlying his section 1326(b) sentencing enhancement; rejected defendant's arguments that the district court violated his Sixth Amendment right to confrontation by admitting documents from his immigration file; and rejected defendant's claims that the district court erred procedurally and substantively in imposing a sentence. Accordingly, the court affirmed the judgment.
Court Description: Criminal Law. The panel affirmed a conviction and sentence for illegal reentry in a case in which the defendant collaterally challenged the validity of the removal order underlying his 8 U.S.C. § 1326(b) sentencing enhancement and argued that the district court violated his Sixth Amendment right to confrontation by admitting documents from his immigration A-file. The panel noted that even if the defendant succeeded on his collateral challenge to his 2010 removal order, which was a reinstatement of a 1998 removal order, it would not affect the indictment’s charge under 8 U.S.C. § 1326(a) because the government relied on evidence of removals other than the 2010 removal order to prove its case. The panel observed that the record is ambiguous as to whether in the 1998 proceedings the immigration judge failed to inform the defendant of relief in the form of pre-conclusion voluntary departure for which the defendant claims he was apparently eligible. The panel concluded that the defendant failed to show prejudice because the defendant’s equities would not have caused an IJ to grant him voluntary departure in 1998. Rejecting the defendant’s contention that admission of statements contained in documents from his A-file violated the Sixth Amendment’s Confrontation Clause, the panel disagreed that the approach set forth in United States v. Orozco-Acosta, 607 F.3d 1156 (9th Cir. 2010), is inconsistent with subsequent decisions of the Supreme Court. The panel held that statements in the 1998 warrant of removal, statements in a Notice of Decision/Intent to Reinstate Prior Order, and the IJ’s written order from the 1998 proceedings are all non-testimonial. The panel held that the district court did not err in denying the defendant a two-point reduction for acceptance of responsibility under U.S.S.G. § 3E1.1. The panel also rejected the defendant’s contention that in light of a Sentencing Guidelines amendment that was scheduled to take effect after the defendant’s sentencing, it was substantively unreasonable for the district court to impose a term of supervised release. The panel wrote that there is no language in the Guidelines suggesting that the new supervised release provision, U.S.S.G. § 5D1.1(c) (2011), has retroactive effect.
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