US v. Aguilar-Reyes, No. 10-10092 (7-18-13)(O'Scannlain with Hurwitz and Piersol, Sr DJ)(Az FPD case).


The defendant was sentenced on a 1326 to a term that was too high. In the meantime, he was deported back to Mexico after completion of his sentence. The government agreed that it was an incorrect sentence. What to do? Counsel argued that the case could be remanded and the court could decide if the defendant should be resentenced. The 9th didn't like that outcome because a defendant has a right, with few limited exceptions, to be present at his sentencing. So, the 9th affirms the sentence without prejudice to a resentencing motion if the defendant comes back, or if he waives his presence. Of note is the too long sentence was a result of a categorical error with an Arizona smuggling statute, which had elements different from the federal statute, and was overbroad.

Congrats to Juan Rocha and Brian Rademacher of the AZ FPD Office (Tucson).

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2013/07/18/10-10092.pdf