United States v. Napoleon Flores-Arvizu

MEMORANDUM

The government appeals the district court’s order dismissing without prejudice an indictment charging Napoleon Flores-Arvizu (“Flores”) with attempted illegal reentry after deportation in violation of 8 U.S.C. § 1326 . As the parties are familiar with the facts, procedural history, and ar guments, we will not recount them here. We affirm.

The problem posed by this case results primarily from acts of the government. Flores completed the term of incarceration to which he had been sentenced and was thereafter immediately deported. That meant that he could not be brought to court for resentencing, as a prior panel of this court subsequently ordered. But the government did not advise that panel of the circumstances, so that panel did not have reason to try to craft a different resolution for the case before it. The government said nothing to this court about the problem until two years had passed after issuance of the mandate, at which time this court declined to recall the mandate. In addition, the government has acknowledged that it has not offered Flores the opportunity to re-enter the country for the purpose of appearing at a resentencing hearing. It is agreed that…