United States v. Joaquin Davalos-Lopez, 20-50022

In 2018 Joaquin Antonio Davalos-Lopez was convicted of illegal reentry (8 U.S.C. § 1326, Count 1) and illegal entry (8 U.S.C. § 1325, Count 2) and sentenced to 37 months' imprisonment and three years' supervised release on each count, to run concurrently.
On appeal this Court affirmed Count 1 but vacated the sentence on Count 2 because it exceeded the statutory maximum (2 years imprisonment, 1 year supervised release) and remanded for correction. United States v. Davalos-Lopez, 773 F. App'x 967 (9th Cir. 2019).
On remand Davalos sought full de novo resentencing on both counts based on post‑sentencing rehabilitation and asked for concurrent sentences of time served (29 months and 18 days).
The district court declined to resentence Count 1, citing the appellate mandate, but purported to reduce Count 2 to time served plus one year supervised release — a result that again produced an imprisonment term exceeding the § 1325 statutory maximum.
The Court of Appeals reviewed de novo, held the district court lacked authority to resentenced Count 1, found the remand for Count 2 was narrowly limited, identified plain error in the new Count 2 sentence, vacated the Count 2 sentence, and remanded to reduce imprisonment on Count 2 to 24 months.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the district court could resentence Count 1 after this Court affirmed its sentence on appeal	Davalos: District court may resentence based on post‑sentencing rehabilitation and seek overall reduction	Gov: Mandate rule bars resentencing Count 1; prior appellate affirmance is controlling	Court: Mandate rule bars resentencing Count 1; affirmed Count 1 sentence
Scope of remand for Count 2 — full de novo resentencing or limited correction to statutory maximum	Davalos: Remand should allow full resentencing (unbundle package) considering rehabilitation	Gov: Remand is narrow — correct only the statutory‑maximum error on Count 2	Court: Remand was narrow; only required reducing Count 2 to statutory maximum
Whether the district court’s "time served" sentence on Count 2 complied with the statutory maximum and prior mandate	Davalos: Time served appropriate; sought concurrent time‑served sentence	Gov: The imposed term exceeded § 1325 maximum and violated the mandate	Court: District court erred (plain error); vacated Count 2 sentence and remanded to impose 24 months imprisonment
Whether appellate court should correct the plain error itself or remand for correction	Davalos: (implicit) remedy should favor lower overall sentence	Gov: District court should correct on remand; appellate relief limited	Court: Noted plain error affecting substantial rights and remanded for limited correction to 24 months

United States v. Davalos-Lopez, [citation="773 F. App'x 967"] (9th Cir. 2019) (prior panel affirmed Count 1 and vacated Count 2 for exceeding statutory maximum)
United States v. Kellington, 217 F.3d 1084 (9th Cir. 2000) (mandate rule and law of the case principles govern remand scope)
United States v. Luong, 627 F.3d 1306 (9th Cir. 2010) (lower court must follow appellate mandate)
United States v. Ruiz-Alvarez, 211 F.3d 1181 (9th Cir. 2000) (discussing when a sentencing package is "unbundled")
Pepper v. United States, 562 U.S. 476 (2011) (post‑sentencing rehabilitation may inform resentencing but remand scope matters)
United States v. Olano, 507 U.S. 725 (1993) (plain‑error review framework)
United States v. Joseph, 716 F.3d 1273 (9th Cir. 2013) (application of plain‑error standard)