United States v. Rodriguez-Ocampo
2011 U.S. App. LEXIS 26044
| 9th Cir. | 2011Background
- Rodriguez-Ocampo, a Mexican national, was removed in 2000 via a stipulated removal after a no-contest assault conviction in Oregon; the removal order was later deemed invalid for due process reasons in Ramos v. United States ( Ninth Circuit).
- After the initial removal, Rodriguez-Ocampo repeatedly returned to the U.S. to be with family and was removed again on four occasions via reinstatement of the invalid order, with subsequent convictions for illegal entry (2004) and illegal reentry (2007).
- On October 11 and 27, 2009, Rodriguez-Ocampo was intercepted entering near Calexico, California; the government charged illegal reentry, then dismissed the §1326 indictment after recognizing the invalid removal order and filed two counts of illegal entry under §1325 instead.
- The district court applied a sixteen-level enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(ii) based on the removals and the Oregon assault conviction, calculating a guideline range of 92–115 months and sentencing to 24 months on each count, consecutive.
- Rodriguez-Ocampo objected, arguing the enhancement requires a valid removal order; the court followed Luna-Madellaga to apply the enhancement, treating physical removals as trigger despite the invalid underlying order.
- The Ninth Circuit vacates and remands, holding that an invalid removal order cannot support the § 2L1.2(b) enhancement; on remand the court may consider reentries for 18 U.S.C. § 3553(a) factors.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| whether § 2L1.2(b) enhancement can attach when removal order is invalid | Rodriguez-Ocampo: enhancement requires valid removal | United States: Luna-Madellaga supports enhancement after physical removal | enhancement cannot be based on invalid removal order |
| proper remedy and remand scope | remand for resentencing considering all factors | district court to re-evaluate guideline range without invalid enhancement | vacate and remand for resentencing; consider reentries under 18 U.S.C. § 3553(a) |
Key Cases Cited
- United States v. Mendoza-Lopez, 481 U.S. 828 (1987) (due process requires meaningful review of administrative removal proceedings)
- United States v. Luna-Madellaga, 315 F.3d 1224 (9th Cir. 2003) (physical removal after a valid order triggers enhancement; reinstatement premised on valid removal)
- United States v. Diaz-Luevano, 494 F.3d 1159 (9th Cir. 2007) ( Diaz-Luevano reaffirmed Luna-Madellaga)
- Morales-Izquierdo v. Gonzales, 486 F.3d 484 (9th Cir. 2007) (en banc; reinstatement not a form of removal)
- United States v. Arias-Ordonez, 597 F.3d 972 (9th Cir. 2010) (applies Luna-Madellaga to specific sequence involving removal order and aggravated felony)
- United States v. Carty, 520 F.3d 984 (9th Cir. 2008) (vacate/procedural error when improper enhancement applied)