United States v. Rigoberto Arzate-Miranda

MEMORANDUM

Defendant appeals the 92-month prison sentence the district court imposed after a jury found him guilty of unlawful reentry by a previously removed alien, in violation of 8 U.S.C. § 1326 (a)-(b). We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742 (a). For the following reasons, we affirm, but remand to correct the judgment.

First, we reject Defendant’s argument that the district court erroneously failed to grant him a downward departure for his purported acceptance of responsibility, per U.S.S.G. § 3El.l(a). Section 3El.l(a) may, in “rare situations,” apply where a defendant “goes to trial to assert and preserve issues that do not relate to factual guilt ...” U.S.S.G. § 3E1.1, cmt. 2 (emphasis added). Here, despite confessing his crimes to officials at the border, Defendant proceeded to trial and challenged the factual basis of his guilt, i.e., his prior removal, by attempting to discredit the Government’s fact witnesses. Accordingly, the district court’s finding that Defendant had not truly accepted responsibility for purposes of § 3El.l(a) was not clearly erroneous. See United States v. Johnson, 581 F.3d 994, 1001 (9th Cir.2009); see also United…