Sunday, July 21, 2013

Case o' The Week: Go to Jail to Get Time-Served Sentence -- Aguilar-Reyes and absent defendants on sentencing remand

Hon. Diarmuid O'Scannlain

  Mr. Aguilar-Reyes will enjoy the triumph of standing before the district judge and being re-sentenced, after the government conceded error in the Ninth.

  (He just needs to illegally return to the U.S. and endure incarceration to claim that resentencing prize).  United States v. Aguilar-Reyes, 2013 U.S. App. LEXIS 14542 (9th Cir. Aug. 8, 2011), decision available here.

Players: Decision by Judge O’Scannlain, joined by Judges Hurwitz and DJ Piersol. Hard-fought appeal by Arizona Federal Public Defender’s office.

Facts: Aguilar-Reyes was convicted in state court of attempting to commit smuggling. Id. at *2-*3. He was deported, re-entered, was caught, and pleaded guilty to illegal reentry. Id. at *3. Over defense objection, the PSR hit Aguilar-Reyes with a sixteen offense level enhancement due to this state smuggling prior. Id. The district court (ultimately) agreed with the defense, gave the defendant time-served, and Aguilar-Reyes was deported to Mexico. Id. at *4. The government appealed and won, and the revised judgment was stayed. Id. at *5. Then the Ninth considered Aguilar-Reyes’s appeal (this opinion). On this appeal, the government agreed with this defense and conceded error: the Az. smuggling statute is overbroad for guideline purposes because it lacks an element of the federal statute. Id. at *5. While they agreed on the merits, the parties fought in the Ninth over the remedy: whether Aguilar-Reyes could move for a re-sentencing if he ever returned (government), or whether the case should be remanded to the district court so it can decide what to do (defense).

Issue(s): [Defense] “counsel says he is not arguing for resentencing in abstentia exactly. Rather, he is arguing for a remand to the district court so that it can figure whether resentencing can occur consistent with Aguilar-Reyes’s statutory and constitutional rights. He suggests that the district court could conclude that resentencing may proceed without Aguilar-Reyes since the proceeding would resolve only a question of law: whether the modified categorical approach allows for imposition of a sixteen-level enhancement . . . . No fact questions would arise, Aguilar-Reyes contents, because all the relevant issues bearing on the 18 USC § 3553 sentencing factors have already been presented and litigated, both in the original sentencing proceedings and the resentencing proceedings (in which the district court was acting outside its jurisdiction).” Id. at *11 (internal quotations and citations omitted).

Held: “Such argument . . . fails . . . [I]n a true resentencing, everything--both issues of law and fact--are back on the table, so the proceeding is necessarily one not limited strictly to matters of law. It is for this reason that the leading treatise on federal procedure declares, "If a sentence is set aside and the case remanded for resentencing, the presence of the defendant is necessary." 3A Charles Alan Wright, et al., Federal Practice and Procedure § 723 (1982). The courts appear to be unanimous on this general point.” Id. at *11-*12. “[W]e therefore affirm Aguilar-Reyes’s sentence without prejudice to a later request by him, if and when he should return to the United States or waive his right to be physically present at resentencing, that his previous sentence be vacated and that he be resentenced in light of this opinion.” Id. at *12.

Of Note: In this case, the characterization of the state smuggling prior meant a twelve offense-level swing. How does one identify and attack priors in this complicated modified categorical morass? First turn to Steve Sady’s superb recent primer on Decamps, available here.

How to Use: The procedural tangle in this case arose because the district court corrected its own sentence – but did so after 14 days had elapsed. In a previous opinion, a Ninth panel held the district court had lost jurisdiction to correct its sentence. See 653 F.3d 1053. If there are problems with a sentence, remember that two-week clock ticks away towards a hard jurisdictional bar: move to fix sentencing problems early.
For Further Reading: ED Va. Fed. Def. Michael Nachmanoff will be testifying in the Senate

on July 23 at noon Pacific. Michael will be explaining the impact of the budget crisis on federal indigent defense. FPD or CJA, this is a hearing you’ll want to see. The webcast is available here.
  While waiting for the testimony, enjoy a terrific New York Times editorial on the impact of the budget crisis on indigent defense, available here.

Image of the Honorable Judge Diarmuid O’Scannlain from
"New York Times" logo from

Steven Kalar, Federal Public Defender ND Cal FPD. Website at


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Monday, July 22, 2013 11:51:00 AM  

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