In United States v. Valle, --- F.3d ---, No. 18-50199 (9th Cir. 2019), the Court vacated the defendant's illegal reentry sentence, denied the government a second bite at the apple, and remanded for immediate resentencing under a lower Guidelines range.
At issue was whether the defendant was subject to an increased Guidelines range based on his prior state drug convictions. The answer under 2L1.2 and 4A1.1 turned on whether those convictions were within 10 and/or 15 years of his current offense. (If not, they would not count for sentencing purposes).
Thus, the salient question was when did the defendant's current illegal reentry “commence”?
The government and PSR said it was in 2004 when the defendant was arrested but not removed. The defense said it was in 2017 when he was arrested (found in) for the current offense.
The district court sided with the government. The Ninth Circuit reversed.
"[W]e consider whether the Government can
establish by clear and convincing evidence a non-citizen’s
continuous presence in the United States since the alleged
time of reentry without submitting any direct evidence of
where the non-citizen was for more than a decade. We hold
that it cannot. We give some weight to the inference that a
non-citizen who had previously returned after being
removed and who had family in the United States would
have made efforts to stay in the country. But that inference
is not enough to carry the Government’s burden here to
prove the thirteen years of continuous presence in the United
States necessary to support the enhancements applied to
Petitioner Miguel Valle’s sentence."
In other words, because the government had no evidence of where he was between the 2004 and 2017 arrests, it could not prove the defendant was in the U.S. the whole time. "Ultimately, because it was the Government’s significant burden to prove that Valle was continuously present, and it produced no evidence whatsoever about where he was for over a decade, the district court clearly erred in concluding that the Government had sufficiently proven that he remained in the United States."
There is also a good discussion of why the clear and convincing standard applies.
Additionally, the Court explained:
"It is the Government’s burden to
prove continuous presence, not Valle’s burden to prove lack
thereof."
"Here, because the Government failed to carry its burden
despite an extensive factual inquiry below, it is not entitled
to 'a second bite at the apple.' Id. We therefore hold that
on remand it may not submit new evidence of Valle’s
whereabouts."
"For the foregoing reasons, we vacate Valle’s sentence
and remand for resentencing based on the Guidelines range
of 1 to 7 months. Because Valle has already been in custody
for the illegal reentry offense for about 20 months, we order
the mandate to be issued forthwith and to be transmitted without delay to the district court for immediate
resentencing."
