Sunday, December 12, 2010

Case o' The Week: Winning Battles, Losing Wars? Rivera-Gomez and Illegal Reentry Sentencing

Rivera-Gomez won the appellate battle, argues Judge Goodwin, but will lose the sentencing war on remand. United States v. Rivera-Gomez, 2010 Wl 4925446 (9th Cir. Dec. 6, 2010), decision available here.

Happily for Mr. Rivera-Gomez, the war isn't over yet -- and there's still plenty of sentencing ammo left.

Players: Victory for ED Cal Defender Dan Broderick and AFPD Douglas Beevers. Decision by Judge Ikuta joined by Judge Berzon, concurrence by Judge Goodwin.

Facts: Rivera-Gomez was deported, reentered, and was confronted by police in 2005. Id. at *1. He pushed a cop aside and escaped. Id. Two weeks later Rivera-Gomez was found in his home. He again tried to escape, this time by kicking a hole through the drywall and hanging from the ceiling rafters. Id. (Like that escape scene in “Matrix I” – though come to think of it, it didn’t work for Morpheus, either). Tear gas and a Taser were deployed, Rivera-Gomez was arrested, and was convicted of a state felony for resisting arrest. Id.

After he served three years in state prison, the feds hit him with a illegal reentry prosecution. Id. He pleaded guilty. Over defense objection, the district court “included his prior state sentence for resisting arrest as part of the criminal history calculation.” Id.

Issue(s): “Rivera-Gomez argued that the state resisting-arrest conviction could not be included in the criminal history calculation, because he resisted arrest with the intent of avoiding detection for his crime of illegal reentry. The district court rejected this argument, holding that the resisting-arrest conduct must be considered separately from the illegal reentry offense because the resisting arrest ‘creates an exceedingly dangerous situation that really compounds and aggravates the nature of the crimes that were initially under investigation.’” Id. at *3.

Held: “We disagree with the district court’s reasoning.” Id. at *3. “Although Rivera-Gomez’s resisting-arrest conduct occurred long after the reentry offense took place, nothing in the Guidelines establishes that conduct ceases to be relevant after a specified period of time. Therefore, if Rivera-Gomez resisted arrest in order to ‘avoid detection or responsibility’ for the illegal reentry offense (as he now claims), and there is no other basis for holding that the resisting-arrest offense is not relevant conduct to the crime of conviction, the district court erred in accounting for the conduct as a prior sentence, rather than as part of the offense level.” Id.

Of Note: As discussed in more detail below, Judge Goodwin’s view of the case on remand is – with all respect – incorrect. Id. at *6 (Goodwin, J., concurring). Lurking within his concurrence is an interesting, troubling, and bubbling issue in the Ninth: “harmless” error in sentencing. Id. (discussing Supreme Court’s harmless error rule in Williams). Judge Goodwin correctly observes that current law in the Ninth prevents the panel from merely affirming the sentence when there is “significant procedural error” – even if the panel suspects the resulting sentence would be the same. Id. He specifically refers to that recent, great Munoz-Camarena case, which rejected the “belts and suspenders” gimmick of immunizing an incorrect guideline sentence with a Section 3553(a) veneer. Id.; see also blog entry here.

In our view, however, there’s no conflict between Williams’ harmless guideline error, and rejecting the Section 3553(a) trick of protecting any sentence by slapping on an identical Booker term. This issue is a small part of a short concurrence, but expect Williams harmless error to arise in future Ninth cases soon.

How to Use: As mentioned above, Judge Goodwin incorrectly complains that Rivera-Gomez has bought himself a sentence twice, or three times, as high on remand by winning on appeal. Id. Judge Goodwin speculates that the defendant will now get hit with offense level adjustments that will dwarf the reduction he’s won in his criminal history category. Id.

Judge Goodwin does not explain, however, that the entire state term for resisting can (and should) be offset by a departure for lost opportunity to serve concurrent time. See United States v. Sanchez-Rodriguez, 161 F.3d 556, 563 (9th Cir. 1998) (en banc).

Moreover, as both the ED Cal counsel and SD Cal AFPDs have noted, that entire state term should be offset against the federal illegal reentry sentence under the complex scheme of USSG § 5G1.2. Keep that guideline handy when Rivera-Gomez starts mucking-up offense levels in federal cases that start as state “false identification” or “resisting” convictions.

For Further Reading: The only thing worse than the Dias Infaustus of the February Ressam decision is Judge Alarcon’s new order amending out valuable parts of that opinion. Compare blog here, with new order here. Dissenting Judge Fernandez is right that the panel got it wrong: Ressam should go en banc.

Image of the Matrix poster from

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

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