United States v. Fidel Castro-Verdugo

Defendant Fidel Castro-Verdugo was convicted of illegal reentry in 2011. At sentencing, the district court imposed a period of probation along with a stayed custodial sentence, thereby exceeding the court’s authority under 18 U.S.C. § 3561 (a)(3). In 2013, Defendant again was convicted of illegal reentry which, in addition to constituting a new crime, violated the conditions of his 2011 sentence of probation. On appeal from the probation revocation proceedings, Defendant argues that the district court in 2013 lacked jurisdiction because of the defect in the underlying 2011 sentence. Because Defendant never moved to correct the underlying sentence under 28 U.S.C. § 2255 , he was in fact still serving a term of probation at the time of the new offense, so the district court in 2013 properly assumed jurisdiction under 18 U.S.C. § 3565 (a). We therefore affirm.

FACTUAL AND PROCEDURAL HISTORY

Defendant is a Mexican citizen and national. In 2011, he pleaded guilty to illegal reentry, in violation of 8 U.S.C. § 1326 . He was sentenced to six months’ imprisonment and a five-year term of probation. The imposition of probation along with a custodial sentence was improper under 18…

dissenting:

Today the majority affirms an illegal sentence while acknowledging that “the sentence imposed was clearly erroneous,” Majority Op. at 1067, and offers no practical remedy to correct the wrong. I cannot concur in an opinion that upholds clear error, and therefore respectfully dissent.

There is no disagreement that the district court’s 2011 sentence of probation coupled with imprisonment was erroneous. This Court has held that such a sentence is illegal, as it exceeds the statutory authority granted by Congress. 18 U.S.C. § 3561 (a)(3); United States v. Forbes, 172 F.3d 675, 676 (9th Cir.1999). Nor is there *1073 an issue as to whether the Defendant lawfully waived a challenge to an illegal sentence at the time of his plea. Again, this Court has wisely held, along with many of its sister circuits, that appellate courts must reject such a waiver if to enforce it would result in the affirmance of an illegal sentence. See United States v. Bibler, 495 F.3d 621, 624 (9th Cir.2007). 1

So then what is the rationale supporting an affirmance in this case? The majority relies on two cases discussing remedies, and then offers a wrongly sentenced defendant two options, neither of…

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 13-50386 Plaintiff-Appellee, D.C. No. v. 3:11-cr-03560-LAB-1

FIDEL CASTRO-VERDUGO,

Defendant-Appellant. OPINION

Appeal from the United States District Court for the Southern District of California Larry A. Burns, District Judge, Presiding

Argued and Submitted March 7, 2014—Pasadena, California

Filed May 6, 2014

Before: Alex Kozinski, Chief Judge, Susan P. Graber, Circuit Judge, and Charles R. Breyer,* Senior District Judge.

Opinion by Judge Graber; Dissent by Judge Breyer

* The Honorable Charles R. Breyer, Senior United States District Judge for the Northern District of California, sitting by designation. 2 UNITED STATES V. CASTRO-VERDUGO

SUMMARY**

Criminal Law

The panel affirmed the district court’s 2013 revocation of probation and the sentence imposed upon revocation, in a case in which the district court’s 2011 imposition of the underlying probation was defective.

The panel rejected the defendant’s contention that because of the defect in the underlying sentence, the district court in 2013…