United States v. Victor Garcia

MEMORANDUM

Victor Garcia appeals the district court’s revocation of supervised release following a new conviction for misdemeanor illegal entry in violation of 8 U.S.C. § 1325 (a). We have jurisdiction pursuant to 28 U.S.C. § 1291 , reverse the revocation of supervised release, vacate, and remand.

Garcia argues that there was insufficient evidence to establish that he was found in the United States in violation of 8 U.S.C. § 1326 (a). To prove that Garcia was found after deportation in violation of § 1326(a) and his supervised release conditions, the government had to prove by a preponderance of the evidence that he entered free from official restraint. United States v. Muniz-Jaquez, 718 F.3d 1180, 1182-83 (9th Cir.2013); United States v. King, 608 F.3d 1122, 1129 (9th Cir.2010). Garcia argues, and the government does not dispute, that the district court erred when it considered the probable cause statement from the underlying § 1325(a) criminal complaint to decide official restraint. We agree. The district court im properly considered the document over the defense objections without considering whether the government could show good cause for not producing the witnesses. United…