USA v. Castillo

• Decision Date: 10 March 2000
• Docket Number: No. 98-50589,D,CASTILLO-CASIAN,98-50589
• Citation: 198 F.3d 787
• Parties: (9th Cir. 1999) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. OMARefendant-Appellant
• Court: U.S. Court of Appeals — Ninth Circuit

Page 787

198 F.3d 787 (9th Cir. 1999)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. OMAR CASTILLO-CASIANO, Defendant-Appellant.

No. 98-50589

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted June 11, 1999

Filed December 28, 1999

Amended March 10, 2000

COUNSEL: Mark S. Windsor, Federal Defenders of San Diego, Inc., San Diego, California, for the defendant-appellant.

Melanie K. Pierson, Assistant United States Attorney, San Diego, California, for the plaintiff-appellee.

Appeal from the United States District Court for the Southern District of California; Howard B. Turrentine, District Judge, Presiding. D.C. No. CR-98-01010-HBT

Before: Dorothy W. Nelson, Stephen Reinhardt, and Stephen S. Trott, Circuit Judges. Opinion by Judge Reinhardt

REINHARDT, Circuit Judge:

Omar Castillo-Casiano pled guilty to one count of illegal reentry in violation of 8 U.S.C. S 1326, and now appeals his sentence. He contends that the district court erred in failing to depart downward from the sentencing guidelines range on the basis of the nature and circumstances of his underlying aggravated felony conviction. At the time of his sentencing, Ninth Circuit law precluded a departure on that basis. An intervening en banc decision of this court overturned the earlier rule, however, and held that a district court may use the nature of an underlying conviction as a basis for departure. The government asserts on appeal that because Castillo-Casiano failed to raise the issue below, the plain error standard applies. We conclude, with hindsight not available to the district judge, that the district court's failure to consider whether the nature of the underlying conviction warranted a downward departure constitutes plain error. We therefore vacate Castillo-Casiano's sentence and remand for resentencing.

I. FACTUAL AND PROCEDURAL BACKGROUND

Omar Castillo-Casiano was arrested and pled guilty to one count of being a deported alien found in the United States under 8 U.S.C. S 1326. In March 1998, San Diego police officers made a traffic stop of a vehicle containing three men that the officers had observed leaving a residence where suspected drug trafficking was taking place. Castillo-Casiano was a passenger in the car. He had no identification, and told the police that he had no legal status in the United States. The police officers contacted Border Patrol agents, who interviewed him and determined that he was in the United States illegally and that he had a record of prior immigration violations and criminal convictions. Castillo-Casiano eventually admitted to these facts and pled guilty to violating S 1326.

The probation officer who prepared Castillo-Casiano's presentence report assigned a base offense level of eight for a violation of S 1326. The officer recommended that the offense level be increased by sixteen levels, pursuant to U.S.S.G. S 2L1.2(b)(1)(A), because Castillo-Casiano had been previously deported after a conviction for an aggravated felony -possession for sale of crack cocaine. In 1993, CastilloCasiano had been convicted of selling $20 worth of crack cocaine, and in 1994, of selling $10 worth. The probation officer also recommended that the offense level be reduced three levels for acceptance of responsibility. This gave Castillo-Casiano a final offense level of 21.

Castillo-Casiano received a criminal history score of 12. He was assigned three points for the 1993 conviction, three points for the 1994 conviction, and three points for a 1996 conviction for being a deported alien found in the United States. He received an additional two points because he was on supervised release at the time of the instant offense, and an additional one point because he committed the instant offense less than two years after completing his term of imprisonment. With a criminal history score of 12 and an offense level of 21, Castillo-Casiano's sentencing guidelines range was 70-87 months.

Castillo-Casiano requested downward departure on three grounds: (1) over-representation of criminal history; (2) cultural assimilation to the United States; and (3) a "unique combination of factors." He did not request a departure based on the nature or circumstances of the aggravated felony underlying the 16-level S 2L1.2(b)(1)(A) increase. The trial judge refused to grant the requested downward departures and sentenced Castillo-Casiano to the low end of the guideline range, 70 months in prison.

II. LEGAL BACKGROUND

In United States v. Rios-Favela, 118 F.3d 653 (9th Cir. 1997), decided prior to Castillo-Casiano's conviction and sentencing, the defendant pled guilty to illegal reentry in violation of 8 U.S.C. S 1326. The defendant's base offense level was increased sixteen levels because he had previously been convicted of an aggravated felony -sale or transportation of a controlled substance. See id. at 654. The district court departed downward ten levels, however, in part based on its finding that "the aggravated felony conviction was not serious enough to warrant a sixteen-level increase." Id. This court vacated the sentence, concluding that district courts lack authority to consider the nature of the underlying aggravated felony conviction as a basis for departure. Id. at 660. RiosFavela was the controlling law in this circuit at the time of Castillo-Casiano's sentencing.

While Castillo-Casiano's appeal was pending, this court, sitting en banc, overruled Rios-Favela in United States v. Sanchez-Rodriguez, 161 F.3d 556, 558 (9th Cir. 1998) (en banc). The facts of Sanchez-Rodriguez are remarkably similar to those in the case before us. Like Castillo-Casiano, SanchezRodriguez pled guilty to reentering the United States illegally in violation of 8 U.S.C. S 1326(a). His base offense level was also eight and he too was given a sixteen-level increase because his previous deportation followed a conviction for an aggravated felony -in Sanchez-Rodriguez's case, a conviction for possession for sale of $20 worth of heroin. The district court departed downward on three bases, including the minor nature of the underlying aggravated felony conviction. See id. at 558-59. The Sanchez-Rodriguez court affirmed, holding that district courts have the discretion to depart downward "on any basis except for those specifically proscribed in the Sentencing Guidelines." Id. at 560 (emphasis added). Finding that departures based on the nature of the underlying aggravated felony were not so proscribed, the court held that a "district court may depart in its discretion based on the nature or circumstances of an underlying aggravated felony." Id.

III. DISCUSSION

Castillo-Casiano requests that we vacate his sentence and remand so that the district court may exercise its discretion to depart downward under Sanchez-Rodriguez . Although Sanchez-Rodriguez was announced after Castillo-Casiano was sentenced, the government rightly concedes that criminal defendants may take advantage of new rules announced while their appeals are pending. See, e.g., Griffith v. Kentucky, 479 U.S. 314 (1987). Accordingly, as both parties agree, CastilloCasiano is entitled to rely on the rule announced in SanchezRodriguez. Nevertheless, the government asserts that because Castillo-Casiano did not at the time of sentencing request the downward departure in question, he must establish that the district court's failure to consider the downward departure was plain error. We agree. See, e.g., United States v. Randall, 162 F.3d 557, 561 (9th Cir. 1998) ("Alleged sentencing errors are reviewed for plain error where the defendant has failed to object before the district court . . . ."); United States v. Martinez-Gonzalez, 962 F.2d 874, 877 (9th Cir. 1992)(reviewing the district court's decision to depart upward for plain error where defendant did not raise objection). The plain error rule applies, even though the law foreclosed the departure in question at the time of sentencing. See United States v. Johnson, 520 U.S. 461 (1997); United States v. Keys, 133 F.3d 1282 (9th Cir. 1998) (en banc).

Plain error occurs where there is (1) error, (2) that is plain, and (3) the plain error affects substantial rights. See, e.g., United States v. Olano, 507 U.S. 725, 733-35 (1993). Where these three conditions are met, we have discretion to correct the error, but only in cases where the error "seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings." Johnson v. United States, 520 U.S. 461, 469-70 (1997) (internal quotations omitted). Here, the government explicitly concedes that, given the applicability of SanchezRodriguez to Castillo-Casiano's sentencing, the first two prongs of the plain error test are satisfied: there was error, and the error was plain.¹ Given the government's concession, we need only address the third and fourth prongs of the plain error test.

In Olano, the Supreme Court explained the third prong of the plain error test -that the plain error affects substantial rights -in the following way:

The third and final limitation on appellate authority . . . is that the plain error "affec[t] substantial rights." This is the same language employed in [Federal Rule of Criminal Procedure] 52(a), and in most cases it means that the error must have been prejudicial: It must have affected the outcome of the district court proceedings. When the defendant has made a timely objection to an error and Rule 52(a) applies, a court of appeals normally engages in a . . . so-called "harmless error" inquiry -to determine whether the error was prejudicial. Rule 52(b) normally requires the same kind of inquiry, with one important differ ence: It is the defendant rather than the Government who bears the burden of persuasion with respect to prejudice.

507 U.S. at 734 (internal citations omitted). That is, in most cases, the third prong of the plain error test calls on the court of appeals to conduct a harmless error inquiry in order to determine if the error was...