Olmos-Esparza

FACTS AND PROCEDURAL HISTORY

Olmos-Esparza was found in the United States in Decem- ber 2003. He eventually admitted he was a Mexican citizen who had previously been deported and that he lacked author- ity to be in the United States. He was convicted following a trial of illegal reentry following deportation in violation of 8 U.S.C. § 1326 and was initially sentenced to 70 months in custody. He appealed his conviction and sentence to this court, which affirmed the conviction but remanded his sen- tence pursuant to United States v. Ameline, 409 F.3d 1073 (9th Cir. 2005) (en banc).

The district court determined that it would have sentenced Olmos-Esparza differently if it had known the Guidelines were not mandatory and would have ordered a full re- sentencing. The Probation Office calculated the sentence in the same manner as before: a base offense level of eight, a sixteen-level enhancement for prior alien smuggling and drug trafficking convictions, and a two-level downward adjustment for acceptance of responsibility. This resulted again in a Guideline range of 63-78 months. On remand, Olmos-Esparza challenged the use of his two prior convictions — sustained in 1972 and 1976 — for…