United States v. Barrios-Siguenza, No. 13-10110 (4-9-14) (Per curiam with Thomas, Fisher and Berzon).
The defendant was convicted of assault on a federal officer in violation of 18 USC 111(a)(1) and illegal entry in violation of 8 USC 1325. In a MEMORANDUM opinion, the assault conviction is reversed and remanded. The defendant however has already been deported. The government argues that, despite the reversal, the conviction should remain until, if ever, he might return and then he can move to vacate. The 9th declines this invitation. This differs from a resentencing, after the defendant had been deported. This is a conviction. Moreover, defense counsel assured the court that the defendant was willing to return and could return for a retrial if he was paroled in. The burden is on the government.