United States v. Guerrero-Jasso

Decision Date27 May 2014
Docket NumberNo. 12–10372.,12–10372.
Citation752 F.3d 1186
PartiesUNITED STATES of America, Plaintiff–Appellee, v. Manuel GUERRERO–JASSO, Defendant–Appellant.
CourtU.S. Court of Appeals — Ninth Circuit

OPINION TEXT STARTS HERE

Cynthia C. Lie (argued), Assistant Federal Public Defender, Office of the Federal Public Defender, San Jose, CA, for DefendantAppellant.

Anne M. Voigts, (argued) and Barbara Valliere, Assistant United States Attorney, Office of the United States Attorney, San Francisco, CA, for PlaintiffAppellee.

Appeal from the United States District Court for the Northern District of California, D. Lowell Jensen, Senior District Judge, Presiding. 5:11–cr–00363–DLJ–1.

Before FERDINAND F. FERNANDEZ, RICHARD A. PAEZ, and MARSHA S. BERZON, Circuit Judges.

Opinion by Judge BERZON; Concurrence by Judge FERNANDEZ; Concurrence by Judge BERZON.

OPINION

BERZON, Circuit Judge:

Appellant Manuel Guerrero–Jasso's mother brought him to the United States from Mexico when he was eleven years old. At age twenty-six, he was found unlawfullypresent in California. He entered a plea of guilty to a one-count information alleging that he reentered the country without authorization after being removed—a violation of 8 U.S.C. § 1326—and received a forty-two-month sentence. He appeals the length of his sentence as exceeding the maximum sentence allowed under the operative statute. We hold that, in applying the twenty-year statutory maximum penalty instead of the two-year statutory maximum penalty, the district court impermissibly relied on facts that were neither admitted by the Defendant nor found by a jury beyond a reasonable doubt. See Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Accordingly, we vacate the sentence, and remand for further proceedings consistent with this opinion.

I.

A person convicted under 8 U.S.C. § 1326 is ordinarily subject to a fine and a maximum term of two years imprisonment. See United States v. Mendoza–Zaragoza, 567 F.3d 431, 433 (9th Cir.2009). Section 1326(b), however, increases the maximum sentence to twenty years if the alien's removal ‘was subsequent to a conviction for commission of an aggravated felony.’ Id. (quoting 8 U.S.C. § 1326(b)(2)). As the language of § 1326(b)(2) makes plain, for the penalty enhancement to apply, the removal on which the conviction is predicated must have occurred after the aggravated felony conviction. See United States v. Covian–Sandoval, 462 F.3d 1090, 1097 (9th Cir.2006).

Guerrero–Jasso was charged with one count of being an alien “found in” the United States in violation of 8 U.S.C. § 1326. The government's information alleged that he had been removed from the United States “on or about April 7, 2009, April 16, 2009, and January 19, 2011.” Although the information did not so specify, Guerrero–Jasso had been convicted on May 20, 2010 of an aggravated felony, namely, possession of a controlled substance for sale. 8 U.S.C. § 1101(a)(43)(B); see Rendon v. Mukasey, 520 F.3d 967, 976 (9th Cir.2008).

Guerrero–Jasso pled guilty to the § 1326 count without a plea agreement. In an Application for Permission to Enter Plea of Guilty, he admitted that [o]n or about February 12, 2011, [he] was found in ... the United States after having previously been removed” and without authorization to reenter the country. The Application acknowledged that his counsel informed him that the maximum sentence was twenty years. He did not admit the dates of the prior removals.

At the plea colloquy, Guerrero–Jasso affirmed his understanding that he could face up to twenty years in prison. Guerrero–Jasso also affirmed that the Application contained a “true statement of what [he] did.” He did not otherwise admit any facts alleged in the information, including any of the prior removal dates. The government then proffered that Guerrero–Jasso had been removed “on or about April 7, 2009, April 16, 2009, and January 19, 2011.” Immediately thereafter, the district court turned to Guerrero–Jasso and stated: “Now, this is a case that is proceeding on the basis of an information. That means you didn't go to the grand jury; do you understand that?” Guerrero–Jasso responded that he understood. The district court then accepted Guerrero–Jasso's guilty plea, without asking him to admit to any of the alleged dates of removal.

Prior to sentencing, the probation office prepared a presentence report, “PSR,” which listed each of the three alleged removal dates. The PSR also stated that [o]n March 28, 2011 ... Guerrero–Jasso provided a written statement” to an Immigration and Customs Enforcement agent “attesting to his ... prior deportations.” The PSR recommended that because Guerrero–Jasso had reentered the United States after being removed in January 2011 following his 2010 aggravated felony conviction, the maximum sentence was twenty years. See8 U.S.C. § 1326(b)(2).

In his sentencing memorandum, Guerrero–Jasso objected to the PSR on the ground that his guilty plea “admitt[ed] only the facts necessary for a bare conviction” under 8 U.S.C. § 1326, not the “sentence-enhancing fact[ ] that he had been removed after conviction for an aggravated felony. After the government obtained three continuances of the sentencing hearing, it introduced three execution of warrant forms, indicating that an immigration officer had witnessed Guerrero–Jasso's removal on each of the three dates in question.

At the final sentencing hearing, the district court stated that it was not relying on the warrants of removal (although it rejected the defense's motion to strike those documents). Instead, the court ruled that Guerrero–Jasso could be subject to the enhanced twenty-year maximum sentence because he had sufficiently admitted to all the dates of removal by pleading guilty to the information. Accordingly, Guerrero–Jasso was sentenced to forty-two months, considerably more than the twenty-four-month maximum penalty for violations of § 1326 without the enhancement.

II.A.

Guerrero–Jasso's sole contention on appeal is that under Apprendi, it was error to apply 8 U.S.C. § 1326(b)'s increased statutory maximum, because his guilty plea to the essential elements of 8 U.S.C. § 1326(a) did not establish that he had been removed after an aggravated felony conviction.

The rule established in Apprendi requires that, [o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum ... be submitted to a jury, and proved beyond a reasonable doubt,’ Mendoza–Zaragoza, 567 F.3d at 434 (quoting Apprendi, 530 U.S. at 490, 120 S.Ct. 2348) (first alteration in original), or “admitted by the defendant,” United States v. Zepeda–Martinez, 470 F.3d 909, 910 (9th Cir.2006). As applied to § 1326, the Apprendi principle requires that to trigger § 1326(b)'s twenty-year-maximum sentence, facts establishing that the removal occurred after an aggravated felony conviction must be admitted by the defendant or proved to a jury.

Such facts can be established in one of two ways. First, the defendant can admit to, or the jury could find, the requisite sequence—i.e., the “fact that [the defendant] had been removed after his conviction.” Mendoza–Zaragoza, 567 F.3d at 434 (emphasis in original). In that event, the precise date of the post-conviction removal need not be proven or admitted. Id. Alternatively, the date of the defendant's post-conviction removal can be admitted by the defendant or proven to a jury. As the date of a prior conviction need not itself be proven beyond a reasonable doubt, see United States v. Pacheco–Zepeda, 234 F.3d 411, 414 (9th Cir.2000) (explaining that Apprendi preserved the rule of Almendarez–Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), and “carved out an exception [to the Apprendi rule] for ‘prior convictions'), admission or proof of the removal date is sufficient to establish eligibility for the § 1326(b) enhancement. Such admission or proof allows for a constitutionally proper determination of “whether the removal had followed the [qualifying] conviction in time.” Mendoza–Zaragoza, 567 F.3d at 434 (emphasis in original) (quoting United States v. Salazar–Lopez, 506 F.3d 748, 751 (9th Cir.2007)).

In this case, however, Guerrero–Jasso entered a guilty plea to a criminal information that listed three separate removal dates, in the conjunctive. [W]hen either ‘A’ or ‘B’ could support a conviction, a defendant who pleads guilty to a charging document alleging ‘A and B’ admits only ‘A’ or ‘B.’ Young v. Holder, 697 F.3d 976, 988 (9th Cir.2012) (en banc). We therefore treat Guerrero–Jasso's guilty plea as admitting only that one of the three removal dates is correct, not that all are correct.

As it turns out, just one of the three removal dates, the removal on January 19, 2011, occurred after May 20, 2010, the date of the qualifying conviction. Guerrero–Jasso did not admit that he was removed on the 2011 date; he only admitted that he was removed on one of the three dates alleged, not which one. So the entry of the guilty plea alone could not justify application of the § 1326(b) enhancement. See id. at 987–88. And it was the “government['s] ... burden ‘at the plea colloquy to seek an explicit admission of any unlawful conduct it [sought] to attribute to the defendant,’ United States v. Hunt, 656 F.3d 906, 912 (9th Cir.2011) (quoting United States v. Thomas, 355 F.3d 1191, 1199 (9th Cir.2004)), here, the fact of a removal date subsequent to the qualifying conviction. The government sought no such admission, and Guerrero–Jasso did not make one.

This much the government concedes, acknowledging both that, “to support the application of Section 1326(b)'s penalty provision, Guerrero–Jasso had to admit the January 19, 2011[ ] removal date,” and that [h]is plea to the conjunctively[ ] phrased information does not provide a specific admission to that single removal date.” The government goes on to...

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