United States v. Marcelino Aguilar-Reyes

We must specify the proper appellate remedy for a defendant who is entitled to a resentencing but, having been deported, is unable to be present for a resentencing hearing.

I

In 2008, Marcelino Aguilar-Reyes, a Mexican citizen, was convicted in Arizona state court of “attempt to commit smuggling” in violation of A.R.S. § 13-2319. He was sentenced to three years’ probation and later deported to Mexico.

A year later, Aguilar-Reyes was caught in Arizona driving a vehicle containing five illegal aliens. He pleaded guilty in federal court to one count of reentry of a removed alien. The presentence report (PSR) concluded that his previous conviction under A.R.S. § 13-2319 counted categorically as an “alien smuggling offense,” triggering a sixteen-level enhancement under the federal sentencing guidelines. U.S.S.G. § 2L1.2(b)(l)(A)(vii). By the report’s calculations, Aguilar-Reyes’s total offense level was twenty-one, with a base offense level of eight, a sixteen-level enhancement based on the prior conviction, and a three-level reduction for acceptance of responsibility. Factoring in the two-level downward departure that the district court later granted, the guideline range…