United States v. Manuel Guerrero-Jasso

Before FERDINAND F. FERNANDEZ, PAEZ, RICHARD A. BERZON, MARSHA S. Judges. Circuit Opinion by BERZON; Judge FERNANDEZ; Concurrence Judge by Judge Concurrence BERZON. OPINION BERZON, Judge: Circuit Appellant Manuel Guerrero-Jasso’s brought mother him to the United States from Mexico when he was years eleven age twenty-six, old. At he was found un- aggravated felony, May He 2010 of entered lawfully present California. namely, to a one-count information of a plea possession controlled sub- country that he reentered alleging 1101(a)(43)(B); § stance sale. 8 U.S.C. being after re- authorization without Mukasey, see Rendon v. § violation 8 U.S.C. 1326—

moved—a (9th Cir.2008). forty-two-month sentence. and received pled guilty to the length of his sentence as appeals He § agreement. 1326 count without exceeding the maximum sentence allowed In an to Enter Application Permission operative statute. We hold Guilty, Plea of he or “[o]n admitted twenty-year max- applying February about was found [he] two-year instead of the stat- imum having pre- in ... the United States after utory penalty, the district court viously removed” au- been and without on facts were impermissibly relied country. thorization reenter by the Defendant nor neither admitted Application acknowledged that his counsel by beyond reasonable found informed him that the maximum sentence Jersey, See v. New 530 doubt. twenty years. He did not admit the 466, 2348, 147 L.Ed.2d 435 prior dates of the removals. (2000). Accordingly, we vacate the sen- tence, proceedings and remand for further At the af- colloquy, Guerrero-Jasso opinion. with this consistent understanding firmed that he could his up twenty years prison. face to Guerre-

I. Application ro-Jasso also affirmed under 8 person A convicted U.S.C. [he] contained a “true statement of what ordinarily subject § to a fíne 1326 is and any did.” did not otherwise admit He imprisonment. years maximum term two information, including facts alleged Mendoza-Zaragoza, States v. See United gov- The any prior of the removal dates. Cir.2009). (9th 431, F.3d 433 “Section 567 proffered ernment then that Guerrero- 1326(b), however, the maximum increases removed “on or about Jasso had been twenty years if the alien’s re sentence 7, 16, 2009, 2009, January April April and subsequent moval “was conviction for thereafter, Immediately 2011.” ” felony.’ of an aggravated commission turned to district court Guerrero-Jasso 1326(b)(2)). § (quoting 8 U.S.C. As “Now, this is case that is and stated: 1326(b)(2) plain, §of makes language the basis of an information. proceeding on apply, the re penalty enhancement you go grand That didn’t means predicat on which the conviction moval jury; do understand that?” Guerre- you aggravat must have occurred ed after responded ro-Jasso that he understood. felony conviction. United States v. ed See accepted The court then Guerrero- district Covian-Sandoval, 1090, 1097 him to asking without guilty plea, Jasso’s .2006). Cir of remov- any alleged admit to dates charged with one Guerrero-Jasso was al. being an alien “found in” the count sentencing, the office probation Prior to of 8 States violation U.S.C. United “PSR,” prepared presentence report, § The information al- re- alleged of the three which listed each leged that he had been removed from the The PSR stated that moval dates. also 7, 2009, April “on United States or about 2011 “[o]n March Guerrero-Jasso January 2011.” Al- April Immi- to an provided a written statement” specify, not so though information did agent Enforcement gration and Customs Guerrero-Jasso had been convicted 1190 conviction,

“attesting prior deportations.” to his ... any fact that increases recommended that because PSR for a pre crime had reentered the United scribed maximum ... be submit being in January States after removed jury, ted to a proved beyond a reason ” following aggravated felony his 2010 doubt,’ able Mendoza-Zaragoza, conviction, the maximum sentence was (quoting Apprendi, F.3d 1326(b)(2). § twenty years. See 8 U.S.C. 2348) (first 490, 120 S.Ct. alteration in memorandum, original), defendant,” by Guerre- or “admitted objected to the ro-Jasso PSR on the Zepeda-Martinez, United States v. ground guilty plea that his (9th Cir.2006). “admitt[ed] applied As necessary the facts for a bare convic- § principle requires § tion” under 8 U.S.C. not the “sen- 1326(b)’s trigger § twenty-year- tence-enhancing fact[ ]” he had been sentence, facts establishing that removed conviction for aggravated after the removal occurred an aggravated after felony. After the obtained felony conviction must be admitted three continuances of the sentencing hear- proved jury. defendant or ing, it introduced three execution of war- Such facts can be established one of forms, rant indicating immigration that an ways. First, two the defendant can admit officer had witnessed re- to, find, or the could the requisite moval on ques- each the three dates in sequence i.e., tion. the “fact that defen- [the — dant] had been removed his convic- after At sentencing hearing, the final the dis- tion.” Mendoza-Zaragoza, 567 F.3d at trict court stated that it relying was not on (emphasis original). event, 434 In that the warrants of removal (although it re- precise post-conviction the date of the re- jected the defense’s motion to strike those moval proven need not be or documents). admitted. Instead, the court ruled that Id. Alternatively, the date of the defen- subject Guerrero-Jasso could be dant’s post-conviction removal can twenty-year enhanced maximum be ad- sentence sufficiently by because he had mitted the proven admitted to all defendant or a to the dates of pleading guilty removal to jury. As the date of a conviction the Accordingly, information. Guerrero- need not proven beyond itself be a reason- months, Jasso forty-two was sentenced to doubt, able see United States v. Pacheco- considerably twenty-four- more than the (9th Cir.2000) Zepeda, 411, 234 F.3d 414 month for violations of (explaining Apprendi preserved the § 1326without the enhancement. rule of Almendarez-Torres v. United States, II.A. (1998), L.Ed.2d 350 and “carved out an sole ap- Guerrero-Jasso’s contention on exception [to the ‘prior rule] for peal is that Apprendi, error convictions’”), admission or proof of the 1326(b)’s § to apply 8 U.S.C. increased removal date is sufficient eligi- to establish maximum, because guilty his 1326(b) bility § the enhancement. plea to the essential of elements 8 U.S.C. proof Such admission or allows for a con 1326(a) § did not establish that he had stitutionally proper determination been removed after an aggravated felony “whether the removal had the followed conviction. [qualifying] conviction in time.” Mendo za-Zaragoza, rule established in 567 F.3d at 434 (emphasis in “ ‘[ojther requires than the fact of a original) (quoting United States v. Sala- (9th First, plea guilty Cir. itself: the 506 F.3d zar-Lopez, 2007)). maintains that construc- Guerrero-Jasso tively facts accepted the contained the case, however, Guerrero- PSR; second, government points a guilty plea a criminal entered Jasso post-arrest, con- Guerrero-Jasso’s written separate re information that listed three fession; third, relies dates, conjunctive. “[W]hen moval upon plea statement during court’s conviction, a ‘A’or ‘B’ could either colloquy faced pleads guilty charg who defendant twenty-year maximum Accord- sentence. B’ ing alleging ‘A and admits document ” government, these documents Holder, only Young A’ or ‘B.’ legal and statements have same effect banc). Cir.2012) (en We during plea admission express guilty therefore treat Guerrero-Jasso’s disagree. colloquy. We admitting only that one of the plea as correct, not that all three removal dates is First, PSR, as to the Guerrero- are correct. presented Jasso the PSR’s out, just alleged dates until after con it turns one three removal As dates, viction, January specifically removal removal and never acceded to May after occurred date them. obtained “When conviction is qualifying conviction. Guerrero- through plea than a guilty rather did not admit that he was removed Jasso verdict,” burden “to it is date; he that he on the 2011 admitted any seek an admission unlawful explicit was removed on one of the three dates conduct it to attribute to the defen seeks entry which alleged, not one. So Hunt, purposes. dant” justify ap- alone could not (internal quotation F.3d at 912 marks and 1326(b) § enhancement. plication of omitted). citations non- “govern- See at 987-88. And it was the id. objection sentencing to facts recited plea colloquy ... burden ‘at the ment[’s] the PSR cannot meet this standard. any explicit seek an admission of unlawful “post-arrest to the confes- regard With to [sought] to attribute the de- conduct government, sion” the the confes- cited ” Hunt, fendant,’ States v. 656 F.3d United gov- itself in the record. The sion is not (9th Cir.2011) (quoting United for its support ernment cites the PSR as Thomas, (9th 1191, 1199 States v. 355 F.3d confession, interpretation the but the of Cir.2004)), here, the a removal fact of date that “Mr. only PSR states qualifying to the conviction. subsequent attesting to provided a written statement admission, no such government sought The illegal prior deportations.” [and] status make and Guerrero-Jasso did not one. of thus The recitation the confession PSR’s concedes, much the ac- This nor neither the removal dates specifies “to the knowledging both admitted specifies that Guerrero-Jasso 1326(b)’s penalty of application Section any particular removal dates. had to provision, Guerrero-Jasso admit rate, confes any an out-of-court At date,” January removal 2011[ ] Ap- suffice to meet the sion cannot alone conjunctively[ plea ] that to the “[h]is beyond-a-reason prendi trial-by-jury phrased provide information does not regard to requirements able-doubt with specific single removal admission to that the maxi establishing facts to essential on to government goes date.” The base penalty mum for the crime of conviction. its opposition appeal could, be ever If it there would no need dependent factors on the three plea or an in-court and admis- B. have a trial in a which there was an out-of- sion case As of the none current obviously a court nonsensical confession— arguments adequate are to sustain the admissibility proposition, even where the conclusion Guerrero-Jasso admitted content) (as to the of the out-of- opposed facts, necessary sequencing we must is not at issue. treat court confession We quite assess district court’s different analogous defendant admissions as adopting the enhanced rationale twen- beyond a reasonable doubt for findings ty-year deciding maximum. to sen- when Apprendi purposes only those ad- tence Guerrero-Jasso in accordance with knowledge are made with missions maximum, the twenty-year penal consequences that attend those ad- district Mendoza-Zaragoza, court read Cazares, v. missions. See United States holding 567 F.3d that a plea (9th Cir.1997) (noting § alleges to a 1326 indictmeht which multi- to a “to attribute defendant admis- ple removal dates establishes as a fact subject plea sion which was never each interpretation removal date. That colloquy under 11 would Fed.R.Crim.P. Mendoza-Zaragoza correct. is not prophylactic pur- undermine rule’s Mendoza-Zaragoza charged poses”). dates, but removal not with convic- sought a guilty plea tion. He to enter Finally, Guerrero-Jasso’s acknowl any subject did not “admit facts that would edgment twenty-year statutory aof maxi 1826(b)’s § him to sentence enhancement.” during plea colloquy mum sentence Id. at district court “refused was not an admission of the conviction/re and, accept” plea, such a as a condition sequence, moval nor of the dates of remov plea, accepting required the defendant plea judges al. During colloquy, are not his removal dates.” “admit[] Id. On required predict “to maximum precise appeal, we held that district court did Instead, sentencing. the court not abuse its discretion in conditioning ac- need tell defendants ceptance on the detailed admis- they possibly sentence could face.” sion, “alleged because indictment facts Garcia-Aguilar U.S. Dist. Court (his dates) to support removal sufficient Cal., S. Dist. sentence enhancement. Cir.2008) (internal omitted). citation 1326(b).” § Id. at 437. Here, proper it was entirely for the specifically, More Mendoza-Zara court to ensure Guerrero-Jasso was aware first, goza held, “that an indictment will twenty-year penalty. of the At that point 1326(b) § sentence enhance colloquy, yet was not clear wheth- alleges ment if it a removal date.” Id. at require er court the district would Guerre- sufficiency 434. That is true as far admit the ro-Jasso to 2011 removal date as of the Although indictment is concerned. of accepting plea. condition his the Apprendi requires “any So fact ... maximum sentence Guerrero-Jasso could increases the maximum for a crime “possibly” going plea charged indictment,” face into the colloquy must be an (internal years: twenty was acknowledgment quota His U.S. at 120 S.Ct. 2348 omitted), that he advised of this tion possibility marks Almendarez-Torres excepts an admission of the facts essential to from all Ap convictions applicability twenty- prendi’s requirements, establish the including the re year quirement maximum sentence. that facts essential to establish- (1999). 1827, 144 L.Ed.2d 35 See alleged in the S.Ct. exposure be ing penalty 470 F.3d at 913. Almendarez-Torres, Zepeda-Martinez, indictment, 523 U.S. Thus, 226-27, pur- 1219. at 118 S.Ct. preserved 1326(b) enhancement, alle- § no of a poses by expressly stating claim at Apprendi of the date of the in the indictment gation had never admitted the sentencing he necessary: “[A]n conviction is pre-removal January arguing 2011 removal date and 20-year maxi- support a indictment will thus could not exceed that his sentence 1326(b) alleges § if it mum sentence was, of years. two The error date, enabling thus a removal course, must a constitutional one. We whether the conviction court to determine reverse unless we “find[ ] therefore removal to estab- the defendant’s predated that the result Vould a reasonable doubt ” necessary sequence.” Mendoza- lish the the error.’ have been the same absent Zaragoza, 567 F.3d (quot 470 F.3d at 913 Zepeda-Martinez, Neder, 1827); alleging In to an indictment addition 18, 87 Chapman California, see to establish the maximum facts essential (1967). 824, 17 L.Ed.2d S.Ct. sentence, proof mandates the record contains ‘overwhelm “[W]here beyond a rea- those essential facts jury of support ‘uncontroverted’ evidence ing’ and doubt, or a clear admission to the sonable crime, error is ing an element of the fact, adequate to waive the con- pertinent [constitutionally] Zepeda- harmless.” proof requirement. As to stitutional Martinez, Neder, (quoting 470 F.3d at 913 Mendoza-Zaragoza aspect 1827). 17, 18, 119 527 U.S. at that a district court has the held to admit require discretion to defendant ap The asks us to accepting a specific removal date before sentence on prove Guerrero-Jasso’s charge, thereby §a guilty plea to (1) a of removal it intro basis of warrant Apprendi proof require- satisfying the (2) and post-conviction duced Guerrero Id. at 437. ments. alleged acceptance Jasso’s PSR. post-con government maintains that this accepted The district court this case any constitutional proves viction evidence requiring without doubt, beyond a reasonable error harmless date essential him to admit to the removal of this case arguing that the circumstances sentence. As Guerrero- to the enhanced indistinguishable from the facts are not admit to the 2011 removal Jasso did artinez. Zepeda date, court’s sentence of more the district —M years, the sentence than two unlike a warrant of re- Zepeda-Martinez, Mendoza-Zaragoza, did not rest on ordered re- “Zepeda moval showed defendant, and so violat- by the admission physically on June 2004 and was moved Apprendi. ed 17, 2004.” ... on foot on June removed name, “Zepeda’s included Id. The warrant

III. immigration fingerprint, signature, name, title, number, of Apprendi Not all violations as well as case properly preserved immigration reversal. A of an officer signature warrant Noting is reviewed for harmless the removal.” Id. Apprendi error who witnessed Recuenco, error, the authentic- dispute not Washington “Zepeda see that did document,” “Zepeda and that ity 165 L.Ed.2d of this page of the had offered the first (2006), the articulated himself standard the States, pretrial, an exhibit” 119 same warrant as in Neder v. United argument”). that the in say beyond court concluded warrant was “suf- And we cannot ficient alone to remov- that reasonable doubt would nec- al doubt.” Id. As a evidence, reasonable essarily have relied on this even result, the evidence of the essential remov- if it admitted prima were as facie authen- “overwhelming” al was as well as date tic. “uncontroverted,” thereby satisfying the Hunt, In Ap- we refused to declare an harmless error standard. constitutional harmless, because, prendi part error as essential, omitted fact was “never liti- court The record before this includes a gated,” “plea and proceed- somewhat similar document. But unlike ings ... provide[d] inadequate an record” Zepedar-Martinez, the document for our harmless-error review. 656 F.3d page pre-trial by first of which was filed concluding, so we noted that: himself, the defendant Guerrero-Jasso has trial, If proceeded Hunt’s case had accuracy never vouched for the and relia- he could have raised Sixth Amendment Indeed, bility of this document. unlike evidentiary objections, or could have he Zepeda-Martinez, who “did not contest presented expert testimony to counter authenticity of the warrant of re- Feliciano, opinions of Detective he Hunt, moval,” F.3d at Guerrero- could have cross-examined the various timely objection Jasso made a that civilian witnesses called admitted, removal warrant should not be government, and he could have arguing solely aimed at the testify decided to to tell his side of the appellate court’s harmless-error determi- story. nation, authenticated,” “inadequately Here, Id. at 916. had Guerrero-Jasso had “insufficient,” and included the exeeu- opportunity challenge the authentic documentation, tion-of-warrant “not trial, ity of the warrant at he could have

warrant itself.” The district court never pointed testimony out the absence of live objections, resolved these because it immigration signed from the officer who erroneously, as we have ex- found— warrant, the execution of as well as the plained Guerrero-Jasso had ade- —that any testimony absence of as to the form’s quately pertinent admitted to the removal custody. chain of United States v. date. Cf. Estrada-Eliverio, 671-73 disagree thus We the facts before (9th Cir.2009) (holding govern indistinguishable us are from those in ment made a prima showing facie of au Zepeda-Martinez, and cannot conclude be thenticity of a warrant of removal where doubt, yond a reasonable on the record immigration agent who maintained the us, before error immigration defendant’s file testified case was harmless. trial as to his record-keeping practices and By objecting to the execution-of-warrant that the warrant admitted was a true and form incomplete, as inauthentic correct copy the warrant in the defen challenged govern- file). bases, dant’s On those Guerrero- evidentiary ment’s prov- belated basis for argued Jasso could have that there was government’s his removal date. The proof beyond a reasonable doubt that cannot, therefore, evidence be described as the document purported was what it to be. “uncontroverted.” See Black’s Law Dictio- (9th ed.2009) contends that Guerre- nary (defining “controvert” contest; objections dispute esp. sufficiently or ro-Jasso’s did not deny “[t]o (as allegation pleading) oppose evidence, or controvert the be- “If explain: on to the the Neder went meaningfully place he did not cause beyond conclude a reasonable dispute into court cannot accuracy of the document to sufficient verdict would have evidence doubt “raise[] failed to Neder, 527 contrary finding.” the same absent the ex- support a been error —for 19, 119 S.Ct. 1827. the defendant contested the ample, where omitted element and raised evidence suffi- chal disagree Guerrero-Jasso’s We contrary finding a support cient to —it govern authenticity of the lenge to the harmless.” Id. should not find the error By “meaningful.” was not ment’s evidence added). (emphasis unauthenti challenging the document as cated, asser disputed government’s he in Neder is not example provided The gov was what the tion that the document only way a constitutional error can be challenge it was. This ernment said harmless; Where, way. ruled not it is one one, goes as it to the likelihood meaningful here, no trial but a as there was necessary re would find the plea, post- and the evidence is introduced a reasonable doubt. moval date only to dem- government conviction In 470 F.3d at 913. Zepeda-Martinez, Cf. harmlessness, it fundamen- onstrate would circumstances, Hunt refused similar tally Apprendi protections undermine government’s evidence of characterize affirmatively the defendant require “overwhelming” as post-arrest confession to counter facts that present evidence fact, essential, omitted evidence of an in accord properly were never established “presented non-frivo where the defendant place. in the first reliability contesting the arguments lous Finally, any asserts that 656 F.3d at 915. the statement.” was harmless because constitutional error fundamentally, reject gov- More “accepted” re- that a defendant suggestion ernment’s in the PSR. But expressed moval dates as position has an affirma- memorandum, Guerrero- in his post to introduce evidence obligation tive that his continued to assert Jasso government’s harmless- hoc to defeat necessary only the facts “admitted cites argument. ness conviction,” “sentence-enhanc- not the bare that a con- Zepedar-Martinez statement date, removal and he ing specific fact” of a if ‘the “error is not harmless stitutional sentencing calcula- objected to the PSR’s the omitted element defendant contested tions, insisting two-year that the support sufficient to and raised evidence At sen- maximum cabined his sentence. ” contrary finding,’ (quot- 470 F.3d at 913 continued ob- tencing, Guerrero-Jasso 1827), Neder, specif- and did not ject to the enhancement But requirement. for such the PSR’s recitation of ically accede to context, proper in its this placed when light of Guerrero- dates of removal. obligate not a defendant to statement does to the removal warrant challenges Jasso’s sentencing to during introduce evidence at sentenc- protestations and his continued that the error was establish objection to the express ing, the lack of quoting Zepedar-Martinez harmless. recited the PSR does removal dates Neder, explained in which the Court “overwhelming and un- satisfy the alone jury guarantee,” “safeguard[ ] evidentiary standard controverted” to “conduct a thor- courts will often need case. the record” before ough examination of reasons, must be the sentence For these error was concluding that a constitutional vacated, remanded. On re- and the case harmless. 527 U.S. at mand, quest. day the district court must sentence The before the continued sen- in accordance with the tencing hearing, government the filed a penalty applicable maximum “Supplemental in support Exhibit” of its admitted when he entered the offense he sentencing memorandum. The exhibit Hunt, 656 F.3d at 917. guilty plea. his See documents, comprises three one-page each entitled of Removal/Deporta- “Warrant VACATED and REMANDED. purporting tion” and each to show FERNANDEZ, Judge, Circuit Guerrero-Jasso was removed to Mexico on concurring: the date indicated. majority I opinion, concur sentencing, At Guerrero-Jasso renewed exception paragraph that com- position subject that he was not page mences at line 10 on which I twenty-year maximum because he brumal, overbroad, believe is and unneces- had not requisite admitted the removal sary to our decision. On the record government argued, date. The and the case, compelled the result we reach is responded, court as follows: without that embellishment. THE GOVERNMENT: [T]here’s enough in the record for the Court to BERZON, Judge, concurring: Circuit proven. find that the date was The I separately express my write con- Supreme says any Apprendi Court law, cern under our case harmless- error is reviewed for harmlessness. post-conviction error review based on fac- THE COURT: That’s when the Circuit tual up submissions could swallow the rule gets Pm, their hands on it—I mean after of Apprendi Jersey, v. New mean, I through. you if tell me that if I (2000). L.Ed.2d 435 error, okay. commit an “It’s Don’t wor- We need to re-think our doctrine on this ry about it because the Ninth Circuit is important point. going pay any attention to it.” To I. me that impress doesn’t me in terms I whether should commit an error or First, some context: not. ISo don’t I should be com- think sentencing After Guerrero-Jasso filed a mitting any errors even if I know that if objecting memorandum to the Pre-Sen- error, I commit an the Ninth Circuit Report’s tence conclusion that he was sub- going isn’t to care. ject mandatory twenty-year statutory THE GOVERNMENT: The cases that sentence, government asked say Apprendi error is reviewed for for more time to check Guerrero-Jasso’s harmlessness don’t draw a distinction not, fact, assertion that he had admitted between judge whether the district court each date alleged of removal the con- they is aware of this error or not. What junctively phrased information. Guerre- ask the district court to consider is agreed to ro-Jasso continue overwhelming whether there is and un- give sought. the time it of, case, controverted evidence in this receiving transcript After of the fact of prior deport. (which change of plea proceeding con- And Government submitted exhib- firmed that Guerrero-Jasso did not admit its removal) prove to this Court that to each date of deport, deport. warrants of “request[ed] additional time to compare transcripts with case law.” Government notes that [the] The dis- PSR —the trict court granted government’s re- Court is allowed to look at the failure to trial, introduced at a would deport of] date object to [the the facts in the have found PSR.... beyond a reasonable doubt. Such tellingly, the defen- favor maybe most

And telling entirely this Court he wasn’t from the approach is never different dant no those dates. There’s deported on analysis, which re usual harmless-error in this Court the result chance trial the record of an actual to deter views And that’s what would be different. jury in that case mine what the actual and asks error asks this Court on record it. would have decided before to look at: Would the Ninth Circuit See, Chapman California, v. 386 U.S. e.g., this if the error Court result be different 18, 25-26, 17 L.Ed.2d committing didn’t oc- about is worried (1967). is, all, respect of for It after out the result wouldn’t be cur? In this case guarantee,” that the Su jury-trial “the different.1 ... reviewing “instructs preme Court timing govern- with the Combined ... effect [a] to consider not what court[s] submission, ex- evidentiary ment’s might generally be ex constitutional error point that the sole makes it obvious change jury, pected upon to have reasonable but removal was introducing the warrants of of upon guilty it had rather what effect date, removal “prove” to the essential in the case at hand.” Sullivan verdict thereby justifying twenty-year Louisiana, 275, 113 ceiling. (1993). 2081, 124 L.Ed.2d 182 though the district court’s sen- Even course, case, involved a This Apprendi, violated tence jury the sentence on the basis no trial. But that uphold plea, asks us to so there was removal/deportation” of the “warrant of postconviction circumstance makes to show that Guerrero-Jasso purporting to dem- of evidence an effort submission January removed to Mexico ques- more onstrate harmless error even in this case indi- opinion 2011. As our tri- waived a tionable: The defendant cates, in this court’s case there al, pre-conviction no factual so there is gov- permitting postconviction such law after the fact at all. To create one record proof Appren- ernmental submissions only undermine but is not the result although, as di harmlessness — waiver, by allow- broaden the defendant’s demonstrates, such reached this case make factual determinations ing courts to submissions can establish after-the-fact never occurred. concerning a trial that only in limited cir- harmlessness Here, government ne- example, cumstances. necessary admissions to elicit glected that a constitutional would think One we, can or the plea hearing. How juries designed to assure that protection court, it would have know district judges than decide facts essential rather is, had a trial occurred—that done better sen- determining potential maximum have submitted properly that it would by post- could never be satisfied tence why And necessary documents? removal submissions, re- evidentiary conviction jury trial to waiver of is Guerrero-Jasso’s at demon- by judge and directed viewed trial as to that waiving taken as been be that had the submissions strating reasons ex- post-conviction, removal. For the pointed to Guerrero- 1. The also repre- majority opinion, object the court’s Guerrero- pressed Jasso’s failure to subject twenty- sentation that he was preliminary Jasso's year as an admission maximum prove beyond did not arise until after the case to question, which a reasonable doubt that kilogram one of mari- waiver? juana offense, was involved in the affairs leads me to This state of wonder: sentencing then prove 101 kilo- can, get How did we here? And grams by preponderance of the evi- should, we reconsider? dence and claim that such a requires sentence of II. Rather, years.” view, five in our A review of our case law shows that we penalty provision increased could always Apprendi’s pro- have not treated apply “unless and until 100 kilo- carelessly: tections so grams marijuana or more are prop- (cid:127) Tighe, States v. United table,” which, erly on the (9th Cir.2001), held that if the Apprendi, happen ... “[a]fter cannot juvenile adjudication fact of a is used jury, until the or the in a court bench maximum statutory increase the trial, beyond finds a reasonable doubt penalty, that fact must charged be quantity that this is the involved by jury an indictment and found a violation.” Recognizing Id. that “the beyond a reasonable doubt. “Because Fifth Amendment to our Constitution Tighe properly preserved ... Ap- his permit does not Velasco-Heradia to be prendi appeal, claim for his sentence offense[,]” tried twice for the same we stand [could not] unless district vacated his sentence and remanded for court’s constitutional harm- error was resentencing in accordance with an un- beyond less a reasonable doubt.” Id. specified drug quantity. Id. at 1086- held, We then inquiry, without further 87. the error in that case was not (cid:127) Banuelos, United States v. harmless, simply because the defen- (9th Cir.2003), held dant’s sentence applica- exceeded “the by district court erred making find- statutory ble maximum.” Id. Like ing, by beyond a standard lower than Guerrero-Jasso, Tighe’s conviction doubt, reasonable as to the amount of guilty plea. was result of a Id. at drugs for which a defendant involved drug in a conspiracy personally (cid:127) Velasco-Heredia, United States v. responsible, finding where the in- Cir.2003), 1085-86 con- creased the defendant’s maximum sen- sidered whether an Apprendi error re- exposure. tence The defendant in that sulting judicial from fact-finding as to guilty plea case had entered a to a drug quantity was harmless. The drug conspiracy charge, but he never drug quantity found at in- right jury waived his to have a deter- thirty- creased what was otherwise a drug quantity mine the attributable to seven-to-forty-six guidelines month him, and he refused to waive the be- range statutory and a maximum of five yond-a-reasonable-doubt standard as years, mandatory five-year sen- drug quantity. 703. We held forty-year tence and a maximum sen- that, “because Baneuelos did not allo- 1083-84, tence. Id. at 1086. We rea- drug quantity change cute to at the only soned that therefore “not was the plea hearing or admit drug quantity harmless, error not it was demonstra- in a plea agreement,” written he was bly harmful.” Id. at 1086. We found properly only “general convicted of permit “too clever half to ... charged offense in the indictment guilt phase of a ... offense for which there the error increased the defendant’s conviction.” Id. a factual basis for required level challenged guidelines he his offense Because at 706-07. conviction, sentence, mandatory we minimum we but not sentence “clearly course on harmful.” proper deemed the error explained court to rejected govern- for the district Id. at 1201. We remand was “subject remand, to the maxi- him argument resentence ment’s on the facts supported by impose mum sentence a sentence in ac- judge could beyond a by the [fact-finder] found cordance with the elevated doubt,” neces- facts reasonable judge maximum if the found —the gener- included in his sarily drug quantity beyond reasonable offense. Id. at drug-conspiracy al the defendant “did not ... doubt: As (internal omitted; al- quotation marks any possessing specific quan- admit to And, although original). teration tity, knowingly right nor ... waive his Banuelos did not raise the issue to have a court’s we noted that appeal, “[t]he quantity determine a reason- drug quantity attributable doubt,” held, “the district able standard, by any without Banuelos judge any particular cannot determine advising Banuelos that he had first drug quantity that would affect of that fact right determination statutory sentence to which doubt, also violat- beyond reasonable exposed.” Id. at [the defendant] n. Apprendi” Id. at 705 3. ed 1202. Finally, rejected suggestion we (cid:127) Patterson, United States v. 381 F.3d the record at the court should scour (9th Cir.2004), considered the ef- 859 if sentencing to determine the error was guilty plea manufacturing fect of a doubt. beyond harmless a reasonable marijuana an amount of on unspecified very finding 706 & n. 4. As “the Id. at the defendant’s sentence. The defen- means that it Apprendi of an violation entered, and the district court dant improper for the district court to accepted, guilty plea that did drug quantity attributable to determine mari- specified admit to a amount of sentencing at without in- Banuelos first juana, understanding that the jury forming right Banuelos of his determine the amount judge would to him drug quantity determination of marijuana sentencing. at the time of doubt[,]” we beyond a reasonable After the defendant Id. at 861-62. “prohibited] ourselves from deemed but before sentenc- plea, entered his considering admissions made at sentenc- issued, holding ju- ing, Apprendi such evaluating an violation ing unconstitutional, dicial determinations Id. at 706 n. 4. for harmless error.” court, govern- and the district (cid:127) Thomas, motion, ment’s vacated the defendant’s F.3d States v. 355 United (9th Cir.2004), at The defendant was plea. Id. 862.

1191 followed Banuelos jury, and case, by then tried and convicted In that and Velasco-Heredia. as to the made pled guilty drug the defendant offense, quantity. Id. This court specific drug accept respon- but refused to reversed, reasoning jeopardy at- sibility any specific drug quantity for the moment the defendant en- at tached during plea colloquy. Id. 1192- accepted guilty court Nevertheless, tered and the judge sentenced 93. free to that the court was not statutory plea; him in accordance with a plea vacate the on the specified correlating maximum motion; trial therefore and that quantity. at 1194. Because drug Id. 1200 (1999), context, jeopardy principles.

violated double the Apprendi outside Although it would adopted Zepeda-Mar Id. at 864-65. have United States v. (9th tinez, simple Cir.2006), been a matter to review 470 F.3d 913 Hunt, trial record to determine whether United States v. 656 F.3d (9th Cir.2011), there was evidence to a find- applicable Apprendi difference, view, ing violation was cases. in my rests doubt, beyond harmless a reasonable largely on a critical distinction between post-conviction, remanded with instead instructions harmless-error of a review preserved to resentence the defendant in accor- plain-error claim and penalty dance with the maximum al- unpreserved review of an claim. See Unit Minore, lowable under the that he en- ed v. States 292 F.3d 1122 n. (9th Cir.2002). tered.

(cid:127) Lococo, Finally, United States v. United States v. Minore considered two (9th Cir.2007), F.3d held that methods, potential first outlined United Apprendi by district court violated (9th Nordby, States 225 F.3d according a defendant to Cir.2000), in part by overruled United for Buckland, States v. 567-68 knowing conspiracy in a involvement (en Cir.2002) banc), reviewing cocaine, to distribute crack because unpreserved Apprendi plain violation for only the defendant admitted to know- error. 292 1121-22. We termed conspiracy’s involvement Nordby the two methods the “less strin powder distribution of cocaine when he gent” approach and stringent” the “more entered his plea. remanding approach. Id. The stringent ap more resentencing, we cited our Neder, proach asking followed “whether it Banuelos, decision in and instructed was clear a reasonable doubt that a court district it could rational would have found the defen base the defendant’s sentence on the guilty dant absent the error.” Id. at 1122 powder amount of cocaine involved (internal omitted). quotation marks We the conspiracy, “because it stringent held the more approach properly powder cocaine that Lococo admits he cases, applicable plain-error where it is knew about.” Id. at 866. prove defendant’s burden to the error interpretations Our of Apprendi rights.”2 “affected his substantial Id. at 1123; harmless-error review standard in these accord United States v. Covian -Sandoval, (9th cases do not correspond 1090, with the “over- 462 F.3d 1098 Cir. whelming 2006); Buckland, and uncontroverted” standard 289 at F.3d 569-70 States, Cir.2002) described in Neder v. United 527 (concluding that defendant’s sub 1827, U.S. 119 S.Ct. 144 L.Ed.2d rights 35 stantial not by Ap- were affected Similarly, 2. judicial United States v. Cotton held proceedings that tation of would be if re- charge drug quantity failure to in an indict- spondents, despite overwhelming and un- error, ment was but that where the evidence they controverted evidence that were involved drug quantity "overwhelming was and es- drug conspiracy, in a vast were to receive a uncontroverted,” sentially the error did not prescribed committing sentence for those less fairness, "seriously integrity affect[] or drug substantial offenses of an error because public reputation judicial proceedings.” trial!,]” objected that was never to at 625, 632-33, 1781, 122 S.Ct. 152 plain Court determined reversal for error im- (2002) (internal quotation L.Ed.2d 860 marks (interned proper. Id. at 122 S.Ct. 1781 omitted). Perceiving that real "[t]he threat omitted). quotation marks fairness, integrity, public repu- circuit, i.e., already in our light unchallenged of the existed prendí error Apprendi violations are narcotics attributed to him and reviewable amount of harmless But it error. did not mandate refusing under plain to reverse therefore any particular review). conducting method for error review, not require and so did us to over- stringent ap- Minore described the less our precedents rule circuit regarding proach simply asking whether the de- nature of pre- that review where there is greater than fendant received sentence served error. Apprendi authorized, absent the error. See F.3d Recuenco, guilty returned although at 1121-22. And we held the less and a special verdict for assault verdict stringent applicable plain- standard not finding the defendant armed with was cases, that we recognized error had deadly The weapon. jury was not asked previously applied it in harmless-error find, find, that the defen- and did cases, suggest and were careful “not [to] dant armed with firearm. 548 U.S. stringent is no approach long- that the less Nonetheless, at 2546. at 126 S.Ct. error er available on harmless review.” sentencing, the defendant received a three- Id. 1122 n. 12. then at We continued year with a being enhancement armed properly Apprendi preserved review firearm. by analyzing claims for harmless error Neder’s Court held harmless-error only the error’s effect on sentence ruling these circum applicable received, not the record for combing over- stances, reasoning Neder’s “[b]ecause whelming, uncontroverted evidence of the jury did him not find of each See, e.g., fact. sentencing-enhancing offenses he was elements of the with which Thomas, 1201. fairly no charged, its verdict is more de however, apparently Zepeda-Martinez, complete guilt scribed as a long cases deeming incompati- this line of crimes for which defendant Recuenco, Washington ble sentenced than is the verdict here.” Id. at L.Ed.2d 126 S.Ct. 466 221, 126 As 2546. the case was (2006),held that Neder’s brand of harmles- respect “indistinguishable from Ned applies “properly pre- serror review er,” id. at the Court violations, served” too. error re held in Recuenco Accepting that “our case law The Court viewable for harmless error. otherwise,” may suggest Zepeda-Martinez not, however, explain harmless- did how holding “Apprendi Recuenco as cites should be error review of errors are under the errors reviewed harmless mode of harmless-er conducted. Neder’s applied [.]” standard as in Neder Id. error Recuenco, analysis ror not discussed view, hold, not so my Recuenco did to rule specifically and Recuenco declined assuming question erred on the of whether the error Zepeda-Martinez at 217- a case before it was harmless.3 Id. that it did. Recuenco affirmed rule that ground procedural defendant-respondent 3. had dent state lack of a Recuenco —the conviction, allowing jury a make the nec- argued that at the of his mechanism time 216-17, essary finding. 126 Washington provide proce- Id. at state law did not factual rejected argument jury whereby the S.Ct. 2546. Recuenco the dure could make 217, reaching by Apprendi. 126 it the required Id. at S.Ct that state law barred from merits, explained the state's mecha- He went on to maintain that Wash- but presenting enhancements ington Supreme structural error hold- nisms for sentence Court's If regarding jury ing violation in his were relevant harmlessness. mechanism, Recuenco adequate indepen- no such case thus rested on an state had 1202

18, 126 Recuenco held made clear is the duty S.Ct. 2546. that it of a review- a sentencing to submit fac- ing “[f]ailure court to the trial consider record as jury, tor to the like failure to submit an whole ignore and to errors that are harm- jury, element to the is not structural er- added)); (emphasis less.” Moore Illi- 222, ror.” 126 548 U.S. at S.Ct. 2546. nois, 220, 232, 458, 434 U.S. 98 S.Ct. 54 (1977); L.Ed.2d 424 Harrington v. Cali- rejection Our our case law fol- 250, fornia, 253-54, 395 89 U.S. S.Ct. might troubling lowing Recuenco be so (1969). 23 L.Ed.2d 284 if our mode of harmless-error review had reviewing been limited to trial record Nonetheless, our decision to consider regard to what would almost sentencing proceedings Nordby amade surely on the question have found factual sense, certain amount of as we did so for determining essential maximum sen- purpose giving the defendant an in Nordby tence. But we held review opportunity to counter evidence that of an Apprendi violation should “encom- government introduced at trial —evidence ” record,’ pass[ including ] ‘whole evi- might which the defendant have failed to dence from 225 proceedings. dispute he was because unaware of its F.3d at (quoting 1061 n. 6 Delaware v. Van jury’s relevance to the decision until it was Arsdall, 673, 681, 106 475 U.S. S.Ct. appeal. declared relevant on We therefore (1986)). 89 L.Ed.2d 674 We derived the looked to sentencing proceedings notion of “whole record” review from the limited purpose assist us in determin- —“to Supreme opinion in Court’s Delaware v. Nordby what evidence would in- have Arsdall, 673, 681, Van 475 U.S. troduced at trial the omitted [on fact] had (1986), 89 674 L.Ed.2d which held issue been Nordby, relevant.” 225 that a violation of the constitutional right added). (emphasis F.3d at 1061 n. 6 But to confront an adversarial witness does not any post-conviction we refused to consider require reversal if error was harmless admissions stipulations or made beyond a reasonable doubt. defendant, we deemed because “new ad- Arsdall, however, Van made no mention by Nordby missions at sentencing, made Instead, of sentencing proceedings. already after the had rendered its Supreme concluded that “the Court of De- verdict inquiry.” irrelevant [the] laware wrong when it declined to con- sider whether ruling adverse] [the Unfortunately, we later threw Nordby’s harmless in the context trial as limitations to All the wind. that is left of whole.” 106 S.Ct. 1431 Nordby’s careful excision relevant added). (emphasis And none of the cases post-conviction material from the irrele- Van Arsdall cites as for “whole vant is the rule that do not consider the record” review mention sentencing pro- post-conviction defendant’s admissions or ceedings after a trial or a plea ei- stipulations in Apprendi ther. See States v. harmless-error Hasting, United review.4 v. Curry, 76 L.Ed.2d See Butler (1983) (“[T]he (9th Cir.2008) consistently Court has n. (noting “our reasoned, suggests respondent "that penalty provision deemed harmless if will be able to demonstrate that the ... not, viola- increased the maximum sentence was particular tion in this case was not been, harmless.” and could jury. not have submitted to a 218, (emphasis origi- Id. at 126 2546 S.Ct. in nal) 24, (citing Chapman, 386 U.S. at 87 S.Ct. 4. Even this rule on has occasion been breach- 824). suggests Recuenco thus that a sentence Zepeda-Martinez, ed. See 470 F.3d at 913. above maximum could not be

1203 at sen- trial a fact never con- rule admissions conceded before long-standing viction, are not relevant to an tencing pre-conviction even where no trial Lococo, analysis”); 514 harmless error was ever held. (refusing consider defen- at 864 to F.3d precisely That is what the sentencing, at statements even dant’s proposed here —a bench trial as a substi- be as an they interpreted could

though by jury required by Ap- tute for the trial admission, assessing in the harmlessness prendi, in which evidence never submitted in accepting of error a presented and any jury to is for the first Salazar-Lopez, States v. 506 plea); United judge. a only time To sanction such (“[W]e (9th Cir.2007) do not F.3d 755 procedure is to allow the ac- protections made at sentenc- consider new admissions by Apprendi entirely atrophy. corded inquiry”); harmless Unit- ing in our error governmental we to countenance Were Jordan, 291 1097 ed v. States sole, introduction of evidence for the ex (9th Cir.2002) (“A stipulation sentencing at plicit purpose of defeating harmless-error finding and jury’s does not address review, be a court approving we would Apprendi.”). cannot be considered under “just doing Supreme [the Court] what Thus, opinions several of this court since it cannot: own relying said on its ha[s] intro- Nordby have considered evidence fact to in finding about non-elemental sentencing by as duced at crease a defendant’s maximum sentence.” harmless-error, part of rather than —as — States, U.S. -, Descamps v. United see, review, e.g., Nordby plain-error — 2276, 2288-89, L.Ed.2d 438 Hunt, 913-16; 133 S.Ct. 186 at Zepeda-Mar- 656 F.3d (2013); States, Shepard tinez, see also v. 470 F.3d at and other circuits United see, likewise, 1254, 161 e.g., have done United States 544 (1st (2005) n. Harakaly, v. 734 F.3d 96-97 & 9 (plurality opinion); id. L.Ed.2d Cir.2013) (declining to whether decide (Thomas, J., at 125 S.Ct. 1254 concur inde- post-conviction concessions “would part concurring judgment). and ring pendently suffice to harmless- establish broadly, this Descamps prohibition applied ness,” relying on but them for corrobora- rejecting resoundingly our circuit’s defendant’s concessions tion of the “earlier which had “the court approach, authorized hearing”); at his Rule United States showed, or a try to discern what a trial Williams, 767-68 Cir. revealed, the defen plea proceeding about 2007). again, unlike in Nord- Moreover— conduct,” underlying emphasiz and dant’s applied process post- have —we Sixth Amendment contem “[t]he evidentiary fact- conviction submission and jury that a plates —not analysis to in which there cases facts, unanimously find such court—will all, though a trial at even Ned- was never reasonable doubt.” Recuenco, er, all Nordby involved at 2288. Hunt, F.3d at 913-16 verdicts. See used Zepeda-Martinez purportedly Zepeda-Martinez, 470 F.3d (guilty plea); “guide” evidence a mere post-conviction (same). process, expand In the ensued determining what would have evidence scope postconviction ed the predicting trial and then whether as to harmlessness considered have jury necessarily would reasonable have evidence the would from defendant crime the facts essential found parties at trial evidence the admitted But charged beyond reasonable doubt. trial, Zepeda-Mar have admitted would fact-finding analysis judicial tinez, this mode 470 F.3d at 913 n. 3. The result Descamps proscribes: the sort way post-conviction precisely for a bench pave evidence, It requires going behind the fact of convic duce new find that evidence of parties tion to establish what evidence the the fact would have been introduced in a trial, would have introduced at a and then hypothetical trial, jury and then determine relies on evaluation of that evidence to the essential fact would have been impose greater a sentence than the maxi by hypothetical found jury had the mum Congress sentence that intended. newly produced evidence been before it. Moreover, Aguila- as in United States v. expansive approach With our to harm Oca, Montes de cases, less error in Apprendi especially in Cir.2011) (en banc), abrogated by Des- cases, guilty plea Apprendi’s protections 2282-83, camps, 133 S.Ct. at in cases like protections could become only. name Hunt, case, Zepeda-Martinez and and this Indeed, although I have no reason to occurred, no trial guesses so about what think that Apprendi error in this case would have occurred at trial entirely are engineered by government, our hypothetical. current harmless-error method

III. ology encourage could prosecutors to do exactly consciously allow that — government’s proposal that we af- error, and then introduce the omitted evi firm the instant sentence on harmless-er- dence for the sentencing, first time at ror require review would us to hold that thereby bypassing protection trial government produced because the an exe- underlying Apprendi. stop We should cution-of-warrant form sentencing, process its tracks reconsidering right, constitutional ab- waiver, sent en banc to have the essential our fact of harmless-error cases, his removal put date to a proved particularly Zepeda-Martinez. beyond a reasonable doubt can go by the

wayside. Quite aside from the reasons we

give in panel opinion for rejecting this

proposition, view, it is one my

should not be entertained at all. Neither

Neder nor Recuenco such a result.

And, by affording penalty provisions that

increase maximum statutory sentence Complaint In re of JUDICIAL protections of the Sixth Amendment MISCONDUCT. standard, and reasonable-doubt the Su- preme Court has forbid it. See Apprendi No. 12-90155. Instead, 530 U.S. at 120 S.Ct. 2348. United States Court of Appeals, harmless-error in Apprendi review cases Ninth Circuit. respect must principle that a court may not itself make a finding as to a May disputed opposed fact—as to an assess- ment of harmless preconviction error on a

trial record—in situations where fact-find-

ing would increase the statutory maximum.

If the defendant did not admit an essential during

fact plea colloquy and evidence

concerning the fact put jury, was not

it violates Apprendi for a court to allow government, postconviction, to intro-

Case Details

Case Name: United States v. Manuel Guerrero-Jasso

Court Name: Court of Appeals for the Ninth Circuit

Date Published: May 27, 2014

Citation: 752 F.3d 1186

Docket Number: 12-10372

Court Abbreviation: 9th Cir.