Tuesday, January 03, 2012

U.S. v. Rodriguez-Ocampo, No. 10-50528 (12-30-11) (Per curiam with B. Fletcher, Silverman, and Wardlaw).

In a per curiam decision, the 9th vacates an erroneously enhanced 1325 sentence. The sentence was enhanced because the defendant had been removed previously from the United States subsequent to an aggravated felony. However, the original removal had been under a constitutionally infirm stipulated removal (made under a procedure without judicial review). As such, the removal could not be used to enhance. The government argued that the defendant had been physically removed, and that is what counted. The 9th disagreed, because the first removal had to be constitutional.


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