United States v. Rogelio Rojas-Flores

Rogelio Rojas-Flores (“Rojas”) is an inmate at the federal penitentiary in Lom-poc, California. Following a routine cell search, a correctional officer found sharpened steel objects concealed at Rojas’ waist. Rojas was convicted under 18 U.S.C. § 1791 for possession of contraband in prison and received a 51-month sentence, to be served consecutively to the sentence he was already serving for a violation of 8 U.S.C. § 1326 , unlawful reentry. Rojas appeals his conviction and his sentence. We have jurisdiction pursuant to 18 U.S.C. § 3742 (a) and 28 U.S.C. § 1291 , and we affirm the conviction, but vacate the sentence and remand for resentencing.

BACKGROUND

As part of a routine search for contraband, Correctional Officer Michael Sanford was conducting a search of the cell Rojas occupied with another inmate. Neither inmate was in the cell during the search. Although prisoners are not permitted to interrupt officers during a search, Sanford was interrupted during the search by a third inmate, Rios, who asked him for a pass. Sanford became suspicious that Rios was attempting to draw him out of the cell because there was contraband in the cell and, while writing the pass for…