United States v. Osbaldo Esparza-Gonzalez

Osbaldo Esparza-Gonzalez, who is Latino, appeals from his conviction, under 8 U.S.C. § 1326 (a), for being an alien unlawfully present in the United States after an earlier removal. Esparza-Gonzalez alleges that two Equal Protection violations under Batson v. Kentucky, 476 U.S. 79 , 106 S.Ct. 1712 , 90 L.Ed.2d 69 (1986), occurred during jury selection and require that his conviction be overturned. In the alternative, Esparza-Gonzalez argues that the district court erred in applying a sixteen-level sentence enhancement pursuant to United States Sentencing Guidelines (USSG) § 2L1.2(b)(l)(A)(I) to his unlawful re-entry conviction based on a prior drug trafficking conviction, which was not pre sented as evidence to the jury. We hold that for purposes of determining whether a prima facie case of a Batson violation has been established, waivers of peremptory strikes in a struck jury system should be treated the same as exercises of peremptory strikes in an alternate system. Accordingly, we reverse in part and remand in part.

FACTUAL AND PROCEDURAL BACKGROUND

On December 17, 2003, Esparza-Gonza-lez was indicted and charged with a violation of 8 U.S.C. § 1326 (a) for being an alien…