Torres-Galeas

MEMORANDUM

Torres-Galeas challenges his jury conviction for illegal reentry under Batson v. Kentucky, 476 U.S. 79 , 106 S.Ct. 1712 , 90 L.Ed.2d 69 (1986). The government cross-appeals the sentence imposed on the ground that the district court erred in applying a two-level downward departure for diminished capacity. We affirm the conviction and sentence, but remand to the district court to correct a technical error in the judgment.

Torres-Galeas argues that the district court erred in finding that he had failed to make out a prima facie case under Batson . Ordinarily, when a Batson challenge is made, the district judge will ask the Assistant United States Attorney for a comment, although there is no legal requirement to do so until a prima facie case of discrimination has been established. Batson, 476 U.S. at 97 . The district judge based his ruling on an improper ground— that the defense as well as the prosecution had struck an Hispanic juror. However, there was no evidence in the record to support a prima facie showing that the Assistant United States Attorney had exercised his peremptory challenge on the basis of race. See United States v. Vasquez-Lopez, 22 F.3d 900, 902…