U.S. v. Salazar-Lopez

Decision Date24 October 2007
Docket NumberNo. 06-50438.,06-50438.
Citation506 F.3d 748
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Manuel SALAZAR-LOPEZ, Defendant-Appellant.
CourtU.S. Court of Appeals — Ninth Circuit

Carey D. Gorden (argued), Federal Defenders of San Diego, Inc., San Diego, CA, for appellant.

Karen P. Hewitt, United States Attorney; Bruce R. Castetter, Assistant United States Attorney; Christopher P. Tenorio (argued), Assistant United States Attorney, San Diego, CA, for appellee.

Appeal from the United States District Court for the Southern District of California; Marilyn L. Huff, District Judge, Presiding. D.C. No. CR-05-01834-MLH.

Before: RAYMOND C. FISHER and RICHARD R. CLIFTON, Circuit Judges, and JEREMY D. FOGEL,* District Judge.

CLIFTON, Circuit Judge:

We decide two questions. First, for a defendant convicted of being a previously removed alien found in the United States, in violation of 8 U.S.C. § 1326, we must resolve whether the dates of a previous felony conviction and of a previous removal from the United States, subsequent to that conviction, must be alleged in the indictment and proved to a jury for the defendant to be subject to an increased sentence under 8 U.S.C. § 1326(b). We answer that question in the affirmative. Second, we consider whether such an error, in a context that affects only sentencing, is subject to harmless error analysis. We answer that question in the affirmative, as well. Since we hold that the error here was harmless, we affirm the sentence imposed by the district court on this defendant.1

I. Background

After being apprehended by the Border Patrol about two miles north of the U.S.-Mexico border on September 13, 2005, Manuel Salazar-Lopez was charged with one count of being a previously removed alien "found in" the United States in violation of 8 U.S.C. § 1326. The indictment did not allege that Salazar-Lopez had been previously removed subsequent to a felony conviction, nor did it allege a specific date for Salazar-Lopez's prior removal.

At trial, the Government introduced four pieces of evidence to prove that Salazar-Lopez had been removed prior to this arrest: (1) an order of an immigration judge from 2002, ordering that Salazar-Lopez be removed from the United States; (2) a warrant of removal from 2002, bearing Salazar-Lopez's photograph, signature, and fingerprint; (3) a notice of reinstatement of the 2002 order; and (4) a warrant of removal dated December 8, 2004, also bearing Salazar-Lopez's picture, fingerprint, and signature. In addition, the signature of Immigration and Customs Enforcement Agent Lucas Leal was also on the 2004 warrant, which, according to Leal's testimony, indicated that Leal had witnessed Salazar-Lopez's departure back to Mexico on May 31, 2005.

After Salazar-Lopez was convicted, the probation officer filed a pre-sentence report recommending that Salazar-Lopez be sentenced under 8 U.S.C. § 1326(b)(1), because the 2005 removal was subsequent to a 2003 felony conviction. Salazar-Lopez objected, arguing that only the two-year maximum under § 1326(a), and not the ten-year maximum provided for in § 1326(b)(1),2 was applicable to his case, because the facts necessary to sustain § 1326(b)(1)'s sentencing enhancement had not been charged in the indictment and proved beyond a reasonable doubt to a jury. The district court rejected Salazar-Lopez's argument and largely adopted the pre-sentence report's sentencing calculations, with the exception that the court decreased Salazar-Lopez's offense level by two for acceptance of responsibility. Salazar-Lopez was sentenced to 21 months of imprisonment and three years of supervised release.

II. Analysis

Because Salazar-Lopez made a timely challenge to his sentence below, he has properly preserved his claim of error. "Preserved Apprendi challenges are reviewed de novo." United States v. Hollis, 490 F.3d 1149, 1154 (9th Cir.2007) (citing United States v. Smith, 282 F.3d 758, 771 (9th Cir.2002)).

A. The Sixth Amendment Violation

An alien found in the United States after having previously been removed violates 8 U.S.C. § 1326. The maximum statutory penalty under § 1326 is two years of imprisonment and one year of supervised release, unless the previous removal was subsequent to certain types of convictions. See 8 U.S.C. § 1326(a),(b); 18 U.S.C. §§ 3583(b), 3559(a). In this case, the district court found that Salazar-Lopez had been removed after such a felony conviction, and so it determined that the applicable statutory maximum was ten years of imprisonment and three years of supervised release. 8 U.S.C. § 1326(b)(1), 18 U.S.C. §§ 3583(b), 3559(a). On appeal, Salazar-Lopez renews his contention that his exposure to § 1326(b)'s higher statutory maximum violated Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), because neither the date of his prior removal nor the temporal relationship between the removal and his prior conviction was alleged in the indictment and proved to a jury.3 We agree that an Apprendi error occurred here.

In United States v. Covian-Sandoval, 462 F.3d 1090, 1096-98 (9th Cir.2006), we recognized that the fact of a prior conviction need not have been submitted to the jury under Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), but nevertheless held that an Apprendi error had occurred where the date of a prior removal (necessary to determine whether the removal had followed the conviction in time) was not admitted by the defendant or found by a jury. A similar error is present here, since the jury was presented with evidence of two removals, one which preceded Salazar-Lopez's felony conviction and one which followed, and was never asked to find that the later removal had indeed occurred. Cf. United States v. Martinez-Rodriguez, 472 F.3d 1087, 1093-94 (9th Cir.2007) (finding no error even though the jury did not find an exact date of removal, because both removals put before the jury were subsequent to the defendant's felony conviction).4 Salazar-Lopez's case differs slightly from Covian-Sandoval, however, because the error to which he points on appeal is not only that the jury never made the required finding but also that the Government never alleged in the indictment that he had been removed on a specific, post-conviction date.

Such an allegation was required. See United States v. Cotton, 535 U.S. 625, 627, 632, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002). As we noted in United States v. Jordan, 291 F.3d 1091, 1095 (9th Cir.2002), our decision in United States v. Buckland, 289 F.3d 558 (9th Cir.2002) (en banc), "answered for our circuit the question left open by the Supreme Court in Apprendi, by holding that any fact other than a prior conviction that increases the maximum penalty for a federal crime must also be charged in an indictment." Here, the temporal relationship between Salazar-Lopez's removal and his previous conviction was a fact that increased the maximum sentence that he faced. As such, the date of the removal, or at least the fact that Salazar-Lopez had been removed after his conviction, should have been alleged in the indictment and proved to the jury. The failure to do so was an Apprendi error.

B. Harmless Error

Having found such an error, we are faced with the question of whether this error is amenable to harmless error review or is instead a "structural error" automatically entitling Salazar-Lopez to a resentencing. Salazar-Lopez contends that it is a structural error, while the Government asserts that harmless error analysis is appropriate and, furthermore, that the error here was indeed harmless.

The Supreme Court has not squarely resolved this question. Although it identified the question in Cotton, the fact that the Court was reviewing for plain error in that case meant that it did not have to decide whether this type of flaw in the indictment is a structural error. Id. at 632-33, 122 S.Ct. 1781. Instead, the Court skipped to the plain error test's fourth prong and held that failing to allege a fact relevant to the statutory maximum and submit it to the jury did not "seriously affect the fairness, integrity, or public reputation of judicial proceedings" because the evidence on the particular factual issue in Cotton, drug quantity, was "overwhelming and essentially uncontroverted." Id. at 632-33, 122 S.Ct. 1781 (internal quotation marks omitted).

The Court's more recent decision in Washington v. Recuenco, ___ U.S. ___, 126 S.Ct. 2546, 165 L.Ed.2d 466 (2006), is also illustrative, although not completely dispositive. In Recuenco, the Court held that harmless error analysis did apply to errors arising under Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), reversing the Supreme Court of Washington's decision to the contrary. Recuenco does not squarely foreclose Salazar-Lopez's argument, though, because the Court there was focused on the error of "fail[ing] to submit a sentencing factor to the jury," and did not consider Recuenco as "a case of charging error." Id. at 2252 n. 3; at 2553; see also id. at 2554 (Stevens, J., dissenting) (characterizing majority opinion as avoiding the issue of sufficient notice through the indictment). Although Cotton and Recuenco strongly suggest that harmless error analysis ought to apply here, they do not, by themselves, dispose of Salazar-Lopez's contention.

Salazar-Lopez argues that our decision in United States v. Du Bo, 186 F.3d 1177 (9th Cir.1999), requires that we treat the current indictment error as a structural error demanding an automatic resentencing. We held in Du Bo "that, if properly challenged prior to trial, an indictment's complete failure to recite an essential element of the charged offense is not a minor or technical flaw subject to harmless error analysis, but a fatal flaw requiring dismissal of the indictment." Id. at 1179. The reach of Du Bo has been limited somewhat, as we have...

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