United States v. Juan Espinoza-Cano

Defendant Juan Espinoza-Cano appeals his conviction and sentence in the district court for illegal re-entry into the United States following deportation, in violation of 8 U.S.C. § 1326 (b). This appeal requires us to address two provisions of the advisory U.S. Sentencing Guidelines (“Guidelines”). Under section 2L1.2(b)(l)(C) of the Guidelines, the district court, when calculating the Guideline range for a § 1326 conviction, must enhance the defendant’s offense level if the defendant was convicted of an aggravated felony prior to the deportation. We examine whether the district court, in determining if a prior conviction qualifies as an aggravated felony, may properly consider, in light of Shepard v. United States, 544 U.S. 13 , 125 S.Ct. 1254 , 161 L.Ed.2d 205 (2005), a police report that has been incorporated by reference into the criminal complaint underlying the prior conviction and that recites a mutually agreed-upon statement of facts. We also address for the first time the standard of review a district court must apply to a prosecutor’s decision not to file a motion pursuant to section 3El.l(b) of the Guidelines requesting that the defendant receive a third level reduction…