United States v. Venancio Rojas-Pedroza
716 F.3d 1253
9th Cir.2013Background
- Rojas-Pedroza entered the U.S. illegally in 1982 at age fourteen and repeatedly reentered after removals.
- He has multiple misdemeanor and felony-like immigration-related and narcotics/assault related incidents; most notably a 2008 aggravated felony conviction for aiding and abetting illegal immigration.
- Rojas was removed on five occasions (1997, 1998, 2004, 2007, 2010) and unlawfully returned after each removal.
- In 1998 an IJ denied voluntary departure; the 1998 order was later relied on for a 2010 reinstatement after the 2008 aggravated felony conviction, forming the basis for §1326(b) enhancement.
- The indictment charged §1326(a) and (b); the government used removals other than the 2010 removal to prove §1326(a) and alleged the 2010 removal for §1326(b)(2).
- Rojas challenged the April 2010 removal as invalid, and sought to suppress A-file documents used at trial to prove alienage and removal history.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the 1326(b) enhancement survives collateral challenge. | Rojas contends the 2010 removal is invalid, undermining the 1326(b) enhancement. | Government argues indictment and proof rely on multiple removals; collateral attack on 2010 order does not bar 1326(a) but could affect 1326(b). | The district court did not err; 1326(b) enhancement stands despite collateral challenge to 2010 removal. |
| Whether the 1998 removal order can be attacked under 1326(d). | Failure to inform of apparent eligibility for relief and the 1998 order’s validity are argued to merit relief under §1326(d). | Record shows no plausible grounds for relief; eligibility was not apparent and no prejudice shown. | Rojas failed to show prejudice or fundamental unfairness; §1326(d) not satisfied; 1998 order valid for purposes of this case. |
| Whether admission of A-file documents violated the Confrontation Clause. | A-file statements are testimonial and should have been excluded. | A-file documents are non-testimonial; not prepared for litigation; admissible as records under non-testimonial framework. | A-file documents (warrant, notices, IJ order) are non-testimonial; Confrontation Clause not violated. |
| Whether the district court erred in denying acceptance of responsibility adjustment. | Rojas admitted essential elements and should receive a two-point reduction. | Cross-examination and frivolous challenge to evidence weighed against acceptance of responsibility. | District court did not clearly err; denial of acceptance of responsibility affirmed. |
| Whether the sentence, including supervised release, was substantively reasonable. | Guideline amendments favor reducing or avoiding supervised release for deportable aliens. | Ruiz-Apolonio allows courts not to apply prospective amendments retroactively; no retroactive effect here. | Sentence affirmed; no error in not applying retroactive amendment. |
Key Cases Cited
- United States v. Vidal-Mendoza, 705 F.3d 1012 (9th Cir. 2013) (§1326(d) analysis and relief plausibility framework)
- United States v. Barajas-Alvarado, 655 F.3d 1077 (9th Cir. 2011) (two-step Barajas-Alvarado test for discretionary relief)
- United States v. Ubaldo-Figueroa, 364 F.3d 1042 (9th Cir. 2004) (due process and exhaustion requirements under §1326(d))
- United States v. Lopez-Velasquez, 629 F.3d 894 (9th Cir. 2010) (en banc discussion of eligibility and prejudice under §1326(d))
- United States v. Orozco-Acosta, 607 F.3d 1156 (9th Cir. 2010) (immigration records are non-testimonial when not prepared for litigation)
- United States v. Ballesteros-Selinger, 454 F.3d 973 (9th Cir. 2006) (non-testimonial nature of IJ orders and related documents)