United States v. Manuel Guerrero-Jasso

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

OPINION

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 un *1189 lawfully present 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 fíne and a maximum term of two years imprisonment. See United States v.…

concurring:

I concur in the majority opinion, with the exception of the paragraph that commences at line 10 on page 10, which I believe is brumal, overbroad, and unnecessary to our decision. On the record in this case, the result we reach is compelled without that embellishment.

concurring:

I write separately to express my concern that, under our case law, harmless-error review based on post-conviction factual submissions could swallow up the rule of Apprendi v. New Jersey, 530 U.S. 466 , 120 S.Ct. 2348 , 147 L.Ed.2d 435 (2000). We need to re-think our doctrine on this important point.

I.

First, some context:

After Guerrero-Jasso filed a sentencing memorandum objecting to the Pre-Sen-tence Report’s conclusion that he was subject to a mandatory twenty-year statutory maximum sentence, the government asked for more time to check Guerrero-Jasso’s assertion that he had not, in fact, admitted each date of removal alleged in the con-junctively phrased information. Guerrero-Jasso agreed to continue sentencing to give the government the time it sought. After receiving the transcript of the change of plea proceeding (which confirmed that Guerrero-Jasso did not admit to each date of removal) the government “request[ed] additional time to compare [the] transcripts with case law.” The district court granted the government’s request. The day before the continued sentencing hearing, the government filed a “Supplemental Exhibit” in support of its sentencing…

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 12-10372 Plaintiff-Appellee, D.C. No. v. 5:11-cr-00363-DLJ-1

MANUEL GUERRERO-JASSO,

Defendant-Appellant. OPINION

Appeal from the United States District Court for the Northern District of California D. Lowell Jensen, Senior District Judge, Presiding

Argued and Submitted July 8, 2013—San Francisco, California

Filed May 27, 2014

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 2 UNITED STATES V. GUERRERO-JASSO

SUMMARY*

Criminal Law

The panel vacated a sentence and remanded for further proceedings in a case in which the defendant entered a plea of guilty to an information alleging that he reentered the country without authorization after being removed – a violation of 8 U.S.C. § 1326 – and received a 42-month sentence.

The panel held that in applying the twenty-year statutory maximum penalty under 8 U.S.C. § 1326(b) instead of the two-year statutory maximum penalty, the district court impermissibly…