[Ed. note -- Jon asked me to fill in for a few days while he's out of the office.]

 

United States v. Guerrero-Jasso, No. 12-10372 (Berzon, J., with Fernandez and Paez, JJ.) ---

In order for the 20-year maximum sentence to apply in an illegal-reentry case, the defendant must have been removed subsequent to a conviction for an aggravated felony. Here, the defendant did not admit that fact at the change-of-plea hearing, so his 42-month sentence exceeds the 2-year statutory maximum, in violation of Apprendi v. New Jersey, 530 U.S. 466 (2000). The Ninth Circuit found this Apprendi error not to be harmless -- despite the government's attempts at the sentencing hearing to prove that it was harmless by introducing documentation to show the dates of conviction and removal. The court thus vacated and remanded for resentencing.

The defendant pleaded guilty to an information that charged him with being an alien found in the United States after having been removed on each of three different dates. The information did not contain the date or nature of the prior conviction involved here, which was an aggravated felony and occurred before only one of the three dates in the information. In connection with the change of plea, the defendant never admitted in open court that he had been removed on any particular date.

The PSR treated the applicable statutory maximum as 20 years based on two important facts. First, the defendant had given a statement to an ICE officer in which he admitted the three dates of removal. (This statement was never introduced in court.) Second, the routine criminal background investigation revealed the prior conviction. The defendant objected to the PSR because he never admitted the "sentence-enhancing fact" of being removed subseuqent to a prior conviction for an aggravated felony. The government countered this objection by introducing three ICE execution of warrant forms, each of which indicated that an ICE officer had witnessed the defendant's removal on the three dates. (The government expressly acknowledged that it did so in order to show that any Apprendi error would be harmless.) The defendant challenged the reliability of these forms, but the district court denied his motion to strike them.

At sentencing, the district court ruled that the 20-year maximum applied because the defendant had admitted all the dates of removal when he pleaded guilty. (This ruling would prove to be wrong.) The district court imposed a 42-month sentence.

The defendant never admitted that he had been removed subsequent to a conviction for an aggravated felony. Thus the Apprendi error here is this: When a defendant pleads guilty to an information that charges "A and B and C," he is deemed to admit either A or B or C, not all three. The court thus treated his guilty plea as admitting that only one of the three removal dates was correct, not that any particular one was correct. And because only one of those dates occurred subsequent to the prior conviction, the entry of the guilty plea by itself did not support the 20-year statutory maximum sentence. If the government wanted to expose the defendant to that higher potential sentence, the burden fell on it to ask him to admit those facts at the change-of-plea hearing. It was not enough that the defendant failed to object to the relevant facts as recited in the PSR. Nor was it enough that the defendant acknowledged, at the change-of-plea hearing, that he faced a maximum 20-year sentence; Rule 11 simply requires the court to tell the defendant what he could possibly face, and acknowledging that one has been advised of this maximum possible punishment is not the same as admitting the facts necessary to expose oneself to it.

For its part, the district court should have required the defendant to admit the facts essential to the 20-year sentence. Where a charging document does not contain the facts essential to upholding the prior conviction -- and it is not necessary to allege the prior conviction date in the charging document in a case like this, see United States v. Almendarez-Torres, 523 U.S. 224 (1998) -- the defendant must either admit those facts, or they must be proved to a jury. Here, the district court accepted the defendant's plea without requiring to admit that he had been removed subsequent to a conviction for an aggravated felony. Any sentence above two years would thus violate Apprendi.

But Apprendi violations can be harmless. See Washington v. Recuenco, 548 U.S. 212 (2006). This assessment required the court to evaluate the record to see whether "overwhelming and uncontroverted evidence" showed that it is harmless. See Neder v. United States, 527 U.S. 1 (1998). The district court here declined to resolve the defendant's objections to the reliability of the warrants of removal, because it erroneously believed that the defendant had admitted the subsequent-to fact necessary for the 20-year maximum. Thus the warrants were not uncontroverted evidence that could play into the harmless-error analysis. And it was not the defendant's burden, as the government argued, to introduce evidence to show that those documents were unreliable, because here the government bears the burden of proving harmlessness. Similarly, the defendant's failure to specifically object to the facts presented in the PSR did not make the evidence "overwhelming and uncontroverted," particularly because he continued to object to the warrants at the sentencing hearing.

Judge Fernandez issued a short concurring statement.

Judge Berzon issued a concurring statement that was itself longer than the opinion in the case. "I write separately to express my concern that, under our case law, harmless-error review based on post-conviction factual submissions could swallow up the rule of Apprendi v. New Jersey, 530 U.S. 466 (2000). We need to re-think our doctrine on this important point." (In context, "post-conviction" here means evidence introduced after a guilty plea is entered or a jury verdict returned.)

Congratulations to San Jose AFPD Cynthia Lie.

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2014/05/27/12-10372.pdf