In the 2019 9th Circuit case, United States v. Valle, a defendant successfully appealed a sentence that was based upon inadequate evidence of his illegal presence in the U.S.
The defendant was originally convicted of felony drug offenses in California in 1998, and he was subsequently removed from the U.S. that year. He was convicted again in 2000 and removed a second time in 2002. In June of 2004, he was arrested for driving under the influence in Santa Ana, California, but he was neither convicted nor removed from the country.
In September of 2017, he was arrested once more in Santa Ana. Police reported him to federal immigration authorities, and, at the trial, he pled guilty to illegal reentry after deportation. Because the Pre-Sentence Report (PSR) determined that his illegal reentry activity began in June of 2004, his sentencing range was 37-46 months in prison, pursuant to §4A1.2 and §2L1.2.
The defendant objected to this starting point, however, because the PSR did not cite instances of the defendant’s departure from the U.S. or contact with the police between 2004 and 2017. Thus, he argued that his illegal reentry began in 2017, supporting a sentence of 1-7 months instead. Concluding that proof of the defendant’s continuous presence was unnecessary, the district court did not accept the defendant’s objection and imposed a 37-month sentence.
The 9th Circuit disagreed with the district court’s conclusion, citing their disregard of the need for clear and convincing proof erroneous. The government, according to the 9th Circuit, had the burden of proving the defendant’s continuous presence in the U.S. between 2004 and 2017. Because they failed to meet this burden, the district court “clearly erred,” and the 9th Circuit vacated the 37-month sentence.
Furthermore, because of this failure, the 9th Circuit prohibited the government from submitting new evidence on remand of the defendant’s whereabouts between 2004 and 2017. Because the defendant had already been in custody for 20 months, the 9th Circuit mandated an immediate resentencing based on a range of 1-7 months.
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