Madrid-Becerra, No. 19-10458 (9th Cir. 2021)
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The Ninth Circuit affirmed defendant's sentence for illegal re-entry under 8 U.S.C. 1326(a). The panel concluded that the district court correctly applied USSG 4A1.1(d), which assigns two criminal history points if the defendant committed the instant offense while under any criminal justice sentence, including probation, parole, supervised release, imprisonment, work release, or escape status. In this case, defendant was granted early conditional release under Ariz. Rev. Stat. 41-1604.14 (repealed Aug. 6, 2016), known as the "half-term to deport" program. Defendant argues that he did not commit his illegal re-entry offense while under any criminal justice sentence.
The panel rejected defendant's contentions and held that defendant was under "any criminal justice sentence" when he illegally reentered the United States within the meaning of section 4A1.1(d); Arizona's general savings statutes require that, for aliens like defendant who were convicted when section 41-1604.14 was in force, that provision continues to govern their sentences, and ADOC maintained the authority to revoke defendant's release in 2016 and 2017 because of his illegal re-entry; even if the district court erred in assuming that defendant had received formal notice of the condition that he not return illegally from the state court during sentencing, defendant did not demonstrate that this alleged error affected his substantial rights; and the district court did not err in making its factual findings.
Court Description: Criminal Law. The panel affirmed a sentence in a case in which the defendant, who was convicted of illegal re-entry under 8 U.S.C. § 1326(a), argued that the district court erred by applying U.S.S.G. § 4A1.1(d), which assigns two criminal history points “if the defendant committed the instant offense while under any criminal justice sentence, including probation, parole, supervised release, imprisonment, work release, or escape status.” After serving a portion of a 2013 Arizona state sentence in prison, the defendant was granted early conditional release under Ariz. Rev. Stat. § 41-1604.14 (repealed Aug. 6, 2016), known as the “half-term to deport” program. The crux of the defendant’s argument was that he did not commit his illegal re-entry offense “while under any criminal justice sentence.” The panel rejected the defendant’s argument that his early release did not provide for supervision of, or place restrictions or conditions on, his subsequent actions. The panel wrote that there is no question that the Arizona sentence was imposed and that as a condition of his early release from prison, Arizona required that the defendant not illegally reenter the United States. If he did so and was discovered, his release was to be revoked and he was to be returned to custody to serve the remainder of his initial sentence. This condition was mandatory, part and parcel of the terms of his UNITED STATES V. MADRID-BECERRA 3 original sentence under Arizona law, and reflects a “custodial or supervisory component” akin to probation (U.S.S.G. § 4A1.1 cmt. n.4). The panel rejected the defendant’s argument that, at the time he was discovered in the United States, he was no longer under a criminal justice sentence because the statute authorizing revocation of his release had been repealed. The panel explained that Arizona’s general savings statutes require that, for aliens like the defendant who were convicted when § 41-1604.14 was in force, that provision continues to govern their sentences, and that the Arizona Department of Corrections maintained the authority to revoke his release because of his illegal re-entry. The panel held that even if the district court erred in assuming that the defendant had received formal notice of the condition that he not return illegally from the state court during sentencing, the defendant did not demonstrate that this alleged error affected his substantial rights. The panel held that the district court did not clearly err in finding that the defendant’s early release was in fact revoked, but noted that neither the Sentencing Guidelines nor its Commentary requires that any parole or release actually be revoked, or that an escapee be apprehended, for § 4A1.1(d) to apply. Dissenting, District Judge Cardone wrote that § 4A1.1(d) does not apply to a scheme such as Arizona’s half-term to deportation program under which each day the defendant spent on his “conditional release” brought him no closer to the termination of his sentence. 4 UNITED STATES V. MADRID-BECERRA
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