United States v. Ernesto Rivas-Gonzalez

384 F.3d 1034 UNITED STATES of America, Plaintiff-Appellant, v. Ernesto RIVAS-GONZALEZ, Defendant-Appellee. No. 03-30167. United States Court of Appeals, Ninth Circuit. Argued and Submitted December 3, 2003. Filed April 22, 2004. Amended September 27, 2004. COPYRIGHT MATERIAL OMITTED William Mercer (argued), United States Attorney, Billings, Montana, for the plaintiff-appellant. Melissa Harrison (argued), Assistant Federal Defender, David Avery, Research Attorney, Federal Defenders of Montana, Missoula, Montana, for the defendant-appellee. Appeal from the United States District Court for the District of Montana; Donald W. Molloy, District Judge, Presiding. D.C. No. CR-02-00011-DWM. Before: KLEINFELD, GOULD, and TALLMAN, Circuit Judges. ORDER 1 The Opinion filed April 22, 2004, and found at 365 F.3d 806 , is hereby amended as follows: 2 (1) We delete the last paragraph reading: 3 Having concluded that the district court erred when it departed downward based on cultural assimilation, we do not reach or address the district court's second ground for departure, based on family ties, and we express no view on whether and to what extent the departure might properly have been made on…

concurring in the dissent from denial of rehearing en banc:

I join Judge Pregerson in dissent, albeit for reasons that differ from his. I believe that the decision is unclear as to the breadth of its holding and that it would have been prudent to rehear this case to clarify the law of our circuit. Since the decision can be read in two different ways, either as a broad, categorical rule or as a narrow, fact-specific holding, it leaves courts and litigants with mixed signals and little direction. Once again we leave an area of immigration law murkier than before.

To the extent the panel categorically ruled out cultural assimilation as a basis for downward departure unless the defendant was brought to the United States as a child, it disregarded the law of this circuit in United States v. Lipman, 133 F.3d 726 *1040 (9th Cir.1998), and that of the Supreme Court in Koon v. United States, 518 U.S. 81 , 116 S.Ct. 2035 , 135 L.Ed.2d 392 (1996). However, the, decision in Rivas-Gonzalez can be read more narrowly as a, decision driven by the facts the panel found on its de novo review.

The lynchpin of the Lipman decision was the motivation for reentry — whether it was for cultural,…

ORDER

The Opinion filed April 22, 2004, and found at 365 F.3d 806 , is hereby amended as follows:

(1) We delete the last paragraph reading:

(2) We add the following paragraph in its place at the end of the Opinion:

The text of footnote 4 states, as prior footnote 4 stated, before this amendment, “We express no opinion about whether Rivas, who has been deported, may be re-sentenced in absentia.”

The parties previously have not filed any petition for rehearing or petition for rehearing en banc. A sua sponte en banc call was made by a judge on this Court, and a majority of active judges did not vote for en banc review. The parties may, within twenty-one days of the filing of this order, file a petition for rehearing or rehearing en banc solely with regard to the substantive amendment above.

IT IS SO ORDERED.

also joins but for the reasons stated in her separate concurrence, dissenting from the court’s denial of *1037 rehearing en banc:

I respectfully dissent from the order denying rehearing en banc. The panel’s decision in this case conflicts with the Sentencing Guidelines, the Supreme Court’s pronouncements in Koon v. United States, 518 U.S. 81 , 116 S.Ct. 2035 , 135…