NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS AUG 2 2024

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 22-50141

Plaintiff-Appellee, D.C. No. 2:20-cr-00321-JAK-1 v.

PEDRO ALONZO LOPEZ CHACON, AKA MEMORANDUM*

Grumpy, AKA Pedro Alonzo Lopez Chacon, AKA Pedro Alonzo Lopez-Chacon,

Defendant-Appellant.

Appeal from the United States District Court for the Central District of California John A. Kronstadt, District Judge, Presiding

Argued and Submitted July 11, 2024 Pasadena, California

Before: IKUTA and NGUYEN, Circuit Judges, and BATTAGLIA,** District Judge.

Pedro Alonzo Lopez Chacon appeals his judgment and sentence after a jury

trial. We have jurisdiction under 28 U.S.C. § 1291, and we vacate the sentence and

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Anthony J. Battaglia, United States District Judge for the Southern District of California, sitting by designation. order a limited remand.

Lopez Chacon contends that the district court erroneously concluded he was

not eligible for an adjustment of acceptance of responsibility because he asserted a

duress defense at trial. Before trial, Lopez Chacon admitted that he came to the

United States unlawfully and explained during the pretrial status conference that he

was “not contesting the underlying elements” and “essentially offered to stipulate

to the underlying elements of § 1326, but the government opposed this request.”

Lopez Chacon explained “the only evidence that would actually be presented

would be the defense case[,]” asserting he improperly crossed the border into the

United States under duress because he feared for his safety in Mexico. The

Government chose not to accept this broad stipulation but entered into formal

pretrial stipulations for two of the offense elements: (1) Lopez Chacon had been

previously removed from the United States, and (2) Lopez Chacon was a citizen

and national of El Salvador.

After a two-day trial, the jury convicted Lopez Chacon. At his sentencing

hearing, the district court did not apply a two-level reduction for acceptance of

responsibility under U.S.S.G. § 3E.1.1, stating “[w]ith respect to the point about

acceptance of responsibility, . . . under the guidelines, this wouldn’t qualify both in

terms of – it’s not the normal method saying – wanting to raise the duress defense

2 but conceding otherwise the illegal entry is not the norm in terms of accepting

responsibility.”

“We review a district court’s interpretation of the [Sentencing] Guidelines de

novo, its application of the Guidelines to the facts of the case for abuse of discretion,

and its factual findings for clear error.” United States v. Randall, 34 F.4th 867, 871

(9th Cir. 2022) (citing United States v. Hong, 938 F.3d 1040, 1051 (9th Cir. 2019)).

A defendant who raises a duress defense to a prosecution for illegal reentry

under § 1326 may still be eligible for an acceptance of responsibility reduction. See

United States v. Gamboa-Cardenas, 508 F.3d 491, 506 (9th Cir. 2007) (affirming

the acceptance reduction because the district court found “appellees made

extensive statements before trial in which they accepted responsibility for their

criminal activity”).

Here, the district court acknowledged that a defendant may go to trial and

still be eligible for an acceptance of responsibility reduction in “rare times.” Yet,

the district court relied upon the Presentence Report, the addendum to the

Presentence Report, and the Government’s arguments, all of which placed heavy

emphasis on the fact that Lopez Chacon went to trial. However, the district court’s

statements are unclear about whether it made “a determination that [Lopez

Chacon] ha[d not] accepted responsibility . . . based primarily upon [his] pre-trial

statements and conduct.” U.S.S.G. § 3E.1.1 cmt. n.2; see also Gamboa-Cardenas,

3 508 F.3d at 506 (affirming the acceptance reduction because the district court

found “appellees made extensive statements before trial in which they accepted

responsibility for their criminal activity”). Although the district court made a

passing reference that it could consider Lopez Chacon’s conduct under the

§ 3553(a) factors, it is unclear how the district court applied the sentencing factors

to Lopez Chacon’s case, and what pretrial statements and conduct, apart from

Lopez Chacon’s decision to raise a duress defense, were considered in declining

the downward adjustment for acceptance of responsibility.

For the foregoing reasons, we vacate the sentence and order a limited

remand to the district court to “adequately explain the chosen sentence to allow for

meaningful appellate review and to promote the perception of fair sentencing.”

United States v. Hernandez, 894 F.3d 1104, 1112 (9th Cir. 2018) (quoting Gall v.

United States, 552 U.S. 38, 50 (2007)).

VACATED AND REMANDED.

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