Sunday, October 10, 2010

Case o' The Week: Timing is Everything - "Paper" and "Recency" Points in Garcia-Jimenez

Deferential "clear error" review, a low preponderance standard, and a crabbed application of the "rule of lenity" combine for a disappointing decision in the context of Section 1326 sentencing. United States v. Garcia-Jimenez, 2010 WL 3895696 (9th Cir. Oct. 6, 2010), decision available here.

Players: Hard-fought appeal by CD CA AFPD Kathryn Young, decision by Judge Bybee (above).

Facts: Garcia-Jimenez pleaded guilty to illegal reentry. Id. at *1. The issue was whether he’d get hit with the “paper” and “recency” points in the calculation of his criminal history category. The “paper” increase adds two points if the new offense is committed while a defendant is under a criminal justice sentence - including parole. Id. at *2. The “recency” points are added if the new offense is committed within two years of imprisonment on a previous offense. Id. at *3.

The chronology was complicated: Garcia was convicted of a robbery in 2001, paroled and removed in 2004, got a US parole violation in 2005, was released and removed a second time in 2006, arrested in the US again in 2006, paroled in 2007, then started working in the U.S.. Id. at *1. He was returned to the CDC in 2008, finished his stat-max parole term, then returned to work in 2008. He was prosecuted for illegal reentry in 2009.

At sentencing, the defense argued that the government failed to prove that Garcia hadn’t left the US and reentered voluntarily during these intervals (which would have “stopped” the continuing offense of illegal reentry and blocked additional criminal history points). The district court disagreed, applied the extra points and increased the Criminal History category.

Issue(s): “Garcia [argues] that the government’s evidence failed to prove that Garcia did not leave the country on the dates between his contacts with law enforcement, and that the government cannot meet its burden by showing that Mr. Garcia-Jimenez was in the United States on specific dates after . . . 2007. He argues that such a line of reasoning amounts to mere speculation and conjecture. He also notes the frequency with which individuals cross the border to Mexico and back undetected.” Id. at*5 (internal quotations omitted).

Held: “It is true that the government’s evidence does not account for Garcia’s presence in the United States at every moment since . . . 2007, and it is indeed conceivable that Garcia could have returned to Mexico at some point in between the dates of his contacts with law enforcement. However, the government did not need to prove with absolute certainty that Garcia had been in the country continuously since . . . 2007; the government’s burden
was only to demonstrate continuous presence by a preponderance of the evidence. By accounting for Garcia’s presence in the country for a major portion of the time since his return to the CDC [in] 2007, by demonstrating that Garcia had no reason to leave the United States during that time, and by showing that it would have been illogical for Garcia to leave the United States, the government satisfied its burden, particularly since Garcia offered no evidence at all to counter the government’s evidence other than general findings regarding Mexican aliens frequently crossing the border.” Id. at *5.

Of Note: This is an important (and disappointing) Section 1325 case. The criminal history points at issue are a frequent problem for our illegal reentry clients, and can bump a defendant up an entire Criminal History category. While conceding that the government bears the burden in proving the timing for these points, id. at *4, Judge Bybee’s very deferential review of the district court’s decision and emphasis on the low preponderance standard will make this issue a tough sentencing fight. The only solace is that on Nov. 1, an amended guideline deletes the “recency” hit.

How to Use: Don’t throw in the towel after Garcia-Jimenez: there were some unique and potentially distinguishable facts in this case. Garcia-Jimenez had been in the States since he was five, had U.S.-citizen children, a U.S.-citizen fiancé, and had returned twice after being removed. Id. at *5. These deep ties to the States made it “illogical” that he would have voluntarily returned to Mexico then re-entered (breaking the “continuous offense” of illegal reentry). For clients with fewer ties, the government’s “speculation” that there was no exit and reentry might be less compelling.

For Further Reading: “It has been observed by even strong defenders of the guidelines that the sentencing ranges called for under the guidelines for unlawful reentry cases are often unreasonably harsh and disproportionate to the seriousness of the offense.” So says the Seventh, in a great new decision. Read it here.

Image of the Honorable Jay Bybee from

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at


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