United States v. Rivera-Gomez
634 F.3d 507
9th Cir.2011Background
- Rivera-Gomez, a Mexican citizen, gained status in the U.S. then was deported after several prior convictions.
- He reentered illegally and was later convicted in federal court of unlawful reentry under 8 U.S.C. § 1326(a).
- The district court treated Rivera-Gomez's state resisting-arrest conviction as criminal history for § 1326 sentencing.
- The district court increased the offense level based on § 2L1.2(b)(1)(A)(ii) for reentry after a crime of violence; no other upward adjustments were made.
- Rivera-Gomez argued the resisting-arrest conviction should be treated as relevant conduct under § 1B1.3(a)(1)(A) and not as a prior sentence.
- This court vacated and remanded for resentencing to decide whether the resisting-arrest conduct is relevant conduct for the offense of conviction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether resisting-arrest conduct qualifies as relevant conduct for the reentry offense | Rivera-Gomez argues it is relevant conduct under § 1B1.3(a)(1)(A). | The government contends it can be treated separately as a prior sentence. | Yes; resisting-arrest can be relevant conduct if it was to avoid detection for reentry. |
| Whether the district court erred by counting the resisting-arrest conviction in criminal history | Resisting-arrest should not be included in criminal history if relevant conduct applies. | District court properly counted it as a prior sentence. | District court erred by treating it as criminal history; it may be relevant conduct. |
| Remand for resentencing is required | Errors in the original calculation necessitate remand for proper resentencing. | Remand is unnecessary if harmless, given advisory Guidelines. | Remanded for resentencing to determine intent and potential upward adjustments. |
Key Cases Cited
- United States v. Cruz-Gramajo, 570 F.3d 1162 (9th Cir. 2009) (relevant conduct framework for § 1326 offenses)
- United States v. Valenzuela, 495 F.3d 1127 (9th Cir. 2007) (conduct ‘in the course of attempting to avoid detection’ constitutes relevant conduct)
- United States v. White, 335 F.3d 1314 (11th Cir. 2003) (false-information conviction linked to avoidance of detection for reentry)
- Vargas-Garcia v. United States, 434 F.3d 345 (5th Cir. 2005) (resisting-arrest vs. continuing-offense considerations on criminal history)
- United States v. Lococo, 514 F.3d 860 (9th Cir. 2008) (harmless-error considerations in remand decisions)
- United States v. Ankeny, 502 F.3d 829 (9th Cir. 2007) (remand and harmless-error standards in sentencing disputes)