Judge Clifton (center) delivers the battle to the Federal Defender of San Diego, but in a disappointing turn, gives the war to the government in a decision making new (and, we believe, incorrect) Apprendi law in the Ninth Circuit. See United States v. Salazar-Lopez, __ F.3d __, 2007 WL 3085906 (9th Cir. Oct. 24, 2007),decision available here.
Players: Righteous challenge by AFPD Carey Gorden, San Diego.
Facts: Salazar-Lopez was convicted at trial on illegal reentry charges. 2007 WL 3085906, *1. The stat-max for illegal reentry is two years, unless the alien had been removed after certain felony convictions. Id. In that event, the stat-max is ten years. Id.“The indictment did not allege that Salazar-Lopez had been previously removed subsequent to a felony conviction, nor did it allege a specific date for [his] prior removal.” Id. After trial, “Salazar-Lopez objected [to the PSR], arguing that only the two-year maximum under § 1326(a), and not the ten-year maximum provided for in § 1326(b)(1), was applicable to his case, because the facts necessary to sustain § 1326(b)(1)’s sentencing enhancement had not been charged in the indictment and proved beyond a reasonable doubt to a jury.” Id. (footnote omitted).
Issue(s): 1. Apprendi: “[F]or a defendant convicted of being a previously removed alien found in the [U.S.], in violation of [Section] 1326, we must resolve whether the dates of a previous felony conviction and of a previous removal from the [U.S.], subsequent to that conviction, must be alleged in the indictment and proved to a jury for the defendant to be subject to an increased sentence under [Section] 1326(b).” Id. at *1.
2. Standard of Review: “[W]e consider whether such an error, in a context that affects only sentencing, is subject to harmless error . . . .” Id.
Held: 1. Apprendi: “We answer that question in the affirmative.” [Apprendi requires that the date of a felony conviction and previous removal must be alleged in the indictment and proved to the jury, to trigger increased stat-max sentence.]
2. S.O.R.: “We answer that question in the affirmative, as well. Since we hold that the error here was harmless, we affirm the sentence imposed by the district court on this defendant.” Id.
Of Note: This interesting Apprendi decision requires the government to allege the dates of a prior conviction and removal to trigger an increased stat-max sentence in Section 1326 cases. This is good: AUSAs inevitably weasel around specifying priors and removals in indictments, to dodge defense challenges to both.
What’s bad – and frankly, unpersuasive – is the harmless error holding. In a new Ninth Circuit rule, Judge Clifton holds that Apprendi error at sentencing is reviewed for harmless error (instead of structural error). Id. at *4. To defend this rule, the Court (unsuccessfully) distinguishes a lead Ninth decision on challenges to the indictment, Du Bo. Id. The Court saddles Salazar-Lopez with harmless error review because his challenge came after trial, at sentencing. Id. When Salazar-Lopez went to trial, however, he faced a valid charge: one that carried a two-year max. The indictment wasn’t deficient. It properly alleged a crime (illegal reentry). As appellate guru Steve Hubachek has observed, this new Ninth rule runs directly contrary to Eleventh Circuit law. See United States v. Candelario, 240 F.3d 1300, 1305-06 (11th Cir 2001) (“Because it is the Government's duty to ensure that it has charged the proper offense, a defendant has no responsibility to point out that the Government could have charged him with a greater offense . . . . to preserve his constitutional [Apprendi] objection, a defendant need object only at sentencing.”) (emphasis added). Salazar-Lopez creates a huge, and important, circuit conflict – petitions are in the works.
How to Use: What is really unfair about this decision is its unanswered question, flagged by Hubachek: what was Salazar-Lopez suppose to do to earn structural error review? He couldn’t bring a pretrial challenge, because the indictment alleged a valid crime (just one with a lower stat-max than the AUSA thought). If you’re going to trial on illegal reentry charges against an AUSA foolish enough to still proceed on this type of indictment, e-mail me or Hubachek: this opinion presents many opportunities for defense mischief.
For Further Reading: Seven years ago three prescient authors flagged exactly this issue – and the importance of Du Bo for Apprendi challenges to indictments. See An Apprendi Primer: On the Virtues of a ‘Doubting Thomas,’ 24 Oct. CHAMP 18, 23 & n.53, 54. (2000). Interesting to see how settled law has – “evolved” – in seven years to accommodate Apprendi, yet avoid reversals.Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at www.ndcalfpd.org