United States v. Carlos Escobar

MEMORANDUM

Defendant-Appellant Carlos Armando Escobar appeals his conviction of illegal reentry under 8 U.S.C. § 1326 , and his below-Guidelines sentence of 63 months of incarceration and two years of supervised release. We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742 (a). We affirm the conviction, but vacate the sentence and remand for resentencing on an open record.

1. The district court did not err in precluding defense counsel from eliciting testimony from a United States Customs and Border Protection records custodian about various statements in Escobar’s Alien file (“A-file”) concerning the citizenship status of Escobar’s mother.

We review de novo a district court’s construction of the hearsay rule, and we review a district court’s decision whether to admit evidence under hearsay exceptions for abuse of discretion. United States v. Orellana-Blanco, 294 F.3d 1143, 1148 (9th Cir.2002). The A-file statements about Escobar’s mother contain two levels of hearsay (“hearsay-within-hearsay”)— the original statement from Escobar to the immigration agent and the agent’s written record of the statement. See United States v. Pena-Gutierrez, 222 F.3d 1080, 1087-88…