Madrid-Becerra, No. 19-10458 (9th Cir. 2021)Annotate this Case
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 Stat. 41-1604.14 (repealed Aug. 6, 2016), known as the "half-term to deport" program.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.