USA v. Omar Rodriguez-Ocampo

Filing

FILED PER CURIAM OPINION (BETTY BINNS FLETCHER, BARRY G. SILVERMAN and KIM MCLANE WARDLAW) VACATED; REMANDED. FILED AND ENTERED JUDGMENT. [8015598]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
OMAR RODRIGUEZ-OCAMPO,
Defendant-Appellant.

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No. 10-50528
D.C. No.
3:10-cr-02567-JLS-1
OPINION

Appeal from the United States District Court
for the Southern District of California
Janis L. Sammartino, District Judge, Presiding
Argued and Submitted
December 8, 2011—Pasadena, California
Filed December 30, 2011
Before: Betty B. Fletcher, Barry G. Silverman, and
Kim McLane Wardlaw, Circuit Judges.
Per Curiam Opinion

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COUNSEL
Trenton C. Packer, San Diego, California, for appellant Omar
Rodriguez-Ocampo.
Harold W. Chun, Assistant United States Attorney, San
Diego, California, for appellee United States of America.

OPINION
PER CURIAM:
Omar Rodriguez-Ocampo was convicted of two counts of
illegal entry under 8 U.S.C. § 1325. He appeals the district
court’s application of a sixteen-level sentencing enhancement
pursuant to U.S.S.G. § 2L1.2(b), which applies “[i]f the
defendant previously was deported, or unlawfully remained in
the United States” after being convicted of certain offenses.
We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C.

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§ 3742, and we vacate the sentence and remand for resentencing.
I.
Omar Rodriguez-Ocampo is a Mexican national. He was
first removed from the United States in September 2000 via
a “stipulated removal” order after pleading no contest to
assault III, a felony, in Oregon. The government concedes
that, in this case, the removal order was invalid because the
stipulated removal process violated Rodriguez-Ocampo’s due
process rights under our decision in United States v. Ramos,
623 F.3d 672 (9th Cir. 2010), cert. denied, 132 S. Ct. 240
(2011).
After his initial removal pursuant to the stipulated order,
Rodriguez-Ocampo repeatedly returned to the United States
to be with his wife and children. He was removed via reinstatement of the stipulated order on four occasions, convicted
of illegal entry under 8 U.S.C. § 1325 in 2004, and convicted
of illegal reentry under 8 U.S.C. § 1326 in 2007. At all times,
the only actual removal order issued against RodriguezOcampo was the invalid stipulated order.
On October 11 and again on October 27, 2009, RodriguezOcampo was apprehended for entering the United States illegally near the port of entry in Calexico, California. After the
October 27 arrest, the government charged RodriguezOcampo with one count of illegal reentry under § 1326. After
Rodriguez-Ocampo’s counsel alerted the government that the
underlying stipulated removal order was invalid, the government dismissed the § 1326 indictment and obtained a superseding indictment charging Rodriguez-Ocampo with two
counts of illegal entry under § 1325. See United States v.
Mendoza-Lopez, 481 U.S. 828 (1987) (holding that removal
proceedings that eliminate judicial review cannot form the
basis for an illegal reentry prosecution). A jury convicted
Rodriguez-Ocampo of both counts of illegal entry.

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The government then sought a sixteen-level sentencing
enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(ii), which provides for such an enhancement “[i]f the defendant previously
was deported, or unlawfully remained in the United States,
after . . . a conviction for a felony that is . . . a crime of violence.” The presentence report (PSR) also recommended this
enhancement based on Rodriguez-Ocampo’s previous removals and his Oregon assault conviction. Rodriguez-Ocampo
objected to the PSR, arguing that, like a prosecution for illegal
reentry, U.S.S.G. § 2L1.2(b) requires a previous valid order of
removal. The district court overruled Rodriguez-Ocampo’s
objection and held that under our decision in United States v.
Luna-Madellaga, 315 F.3d 1224 (9th Cir. 2003), an alien’s
physical removal from the United States after a conviction for
a crime of violence is all that is necessary to trigger the sentencing enhancement. Applying this enhancement, the district
court calculated Rodriguez-Ocampo’s sentencing guideline
range using an offense level of 24 and a criminal history category of 5, resulting in a range of 92-115 months. The district
court imposed the statutory maximum of 24 months on each
count, to run consecutively.
Rodriguez-Ocampo timely appealed the application of the
sentencing enhancement. “We review de novo the district
court’s interpretation of the Sentencing Guidelines. . . .”
United States v. Berger, 587 F.3d 1038, 1041 (9th Cir. 2009).
II.
[1] In 1987, the Supreme Court held that where a prior
deportation proceeding effectively eliminated the alien’s right
to obtain judicial review, the prior deportation may not form
the basis for an illegal reentry prosecution under § 1326.
United States v. Mendoza-Lopez, 481 U.S. 828, 837-40 (1987).1
1

The Illegal Immigration Reform and Immigrant Responsibility Act of
1996 (“IIRIRA”) eliminated the previous legal distinction between deportation, removal, and exclusion, merging all into a broader category entitled
“removal.” See United States v. Lopez-Gonzalez, 183 F.3d 933, 934-35 &
n.4 (9th Cir. 1999).

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After determining that § 1326 itself did not allow a defendant
to challenge the underlying removal order, the Court concluded that “[i]f the statute envisions that a court may impose
a criminal penalty for reentry after any deportation, regardless
of how violative of the rights of the alien the deportation proceeding may have been, the statute does not comport with the
constitutional requirement of due process.” Id. at 837. The
Court further cautioned that “where a determination made in
an administrative proceeding is to play a critical role in the
subsequent imposition of a criminal sanction, there must be
some meaningful review of the administrative proceeding.”
Id. at 837-38. Congress subsequently codified the principles
of Mendoza-Lopez at 8 U.S.C. § 1326(d), allowing a defendant to collaterally attack the underlying removal order if “(1)
the alien exhausted any administrative remedies that may
have been available to seek relief against the order; (2) the
deportation proceedings at which the order was issued
improperly deprived the alien of the opportunity for judicial
review; and (3) the entry of the order was fundamentally
unfair.”
In later cases, however, the government argued that “even
if the original removal proceeding was constitutionally flawed
and could not lawfully support a charge of illegal reentry . . .
later reinstatements of that removal provide an independent
basis for the illegal reentry charge.” United States v. AriasOrdonez, 597 F.3d 972, 978 (9th Cir. 2010). We rejected this
argument, explaining that “[t]he government’s problem is that
all of Arias-Ordonez’s reinstatements were reinstatements of
the original removal. That removal was not legally sound.
Therefore, none of the reinstatements is legally any stronger
than the original order.” Id.
Here, the government asks us to hold that even if a removal
proceeding was constitutionally flawed and cannot lawfully
support a charge of illegal reentry under § 1326, it can support
a sixteen-level sentencing enhancement after a defendant has
been convicted of illegal entry under § 1325. The government

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relies on our decisions in United States v. Luna-Madellaga,
315 F.3d 1224 (9th Cir. 2003), and United States v. DiazLuevano, 494 F.3d 1159 (9th Cir. 2007) (per curiam).
In Luna-Madellaga, the government sought a sentencing
enhancement under 8 U.S.C. § 1326(b)(2), which raises the
statutory maximum for illegal reentry to twenty years for
aliens “whose removal was subsequent to a conviction for
commission of an aggravated felony.”2 315 F.3d at 1225.
Luna-Madellaga had been removed once, was subsequently
convicted of an aggravated felony, and then was removed
again via reinstatement of his first removal order. Id. He contended that since only the reinstatement, and not the original
removal order, was “subsequent to” his conviction, the sentencing enhancement should not apply. Id. at 1226. We disagreed, holding that the reference to “removal” in the context
of the sentencing enhancement referred to “the alien’s physical removal — not the order of removal.” Id. Diaz-Luevano
reaffirmed Luna-Madellaga after our decision in MoralesIzquierdo v. Gonzales, 486 F.3d 484 (9th Cir. 2007) (en banc)
(holding that reinstatement of a removal order is not a species
of removal).
The government contends that Luna-Madellaga and DiazLuevano control our decision here, because RodriguezOcampo was physically removed subsequent to his conviction
for a crime of violence. But this argument overlooks the fact
that our decision in Luna-Madellaga was premised on the
validity of the original removal order. We expressly noted that
any due process concerns implicated by our decision were
remedied by the valid underlying order, explaining that “an
alien who illegally reenters the United States while under an
order of removal has already received a full and fair hearing,
including judicial review of that hearing, which affords all the
2

This sentencing enhancement is implemented by U.S.S.G.
§ 2L1.2(b)(1), the same Guideline that was applied to Rodriguez-Ocampo
in the present case. See Luna-Madellaga, 315 F.3d at 1225.

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process to which he is entitled.” Luna-Madellaga, 315 F.3d at
1226-27. Our later decision in Arias-Ordonez also recognized
this, noting that Luna-Madellaga and Diaz-Luevano apply
only “to a specific sequence of events, a valid removal order
and conviction of an aggravated felony.” 597 F.3d at 982
(emphasis added).
[2] Where, as here, the underlying removal order completely eliminated judicial review, the alien has never
received “a full and fair hearing, . . . the process to which he
is entitled.” Luna-Madellaga, 315 F.3d at 1226-27. Allowing
that removal order, or a reinstatement of that removal order,
to form the basis for a sentencing enhancement would contradict the Supreme Court’s instruction in Mendoza-Lopez that
“where a determination made in an administrative proceeding
is to play a critical role in the subsequent imposition of a
criminal sanction, there must be some meaningful review of
the administrative proceeding.” 481 U.S. at 837-38. We clarify that under Luna-Madellaga, an alien’s physical removal is
sufficient to trigger the sentencing enhancements under
U.S.S.G. § 2L1.2(b) only when the physical removal is premised on an underlying valid order of removal. An order of
removal that provided the alien with no opportunity for judicial review and cannot support a prosecution under 8 U.S.C.
§ 1326, or a reinstatement of such an order, cannot support a
sentencing enhancement under U.S.S.G. § 2L1.2(b).
III.
[3] Because Rodriguez-Ocampo’s original removal order
improperly waived his right to judicial review, we hold that
the district court erred when it applied the sentencing
enhancement under U.S.S.G. § 2L1.2(b) and thus committed
procedural error by incorrectly calculating RodriguezOcampo’s Guidelines range. United States v. Carty, 520 F.3d
984, 993 (9th Cir. 2008). We therefore vacate RodriguezOcampo’s sentence and remand for resentencing. We note
that on remand, while Rodriguez-Ocampo’s prior removal

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order cannot support an enhancement under U.S.S.G.
§ 2L1.2(b), the district court is free to consider RodriguezOcampo’s multiple reentries when considering the appropriate
sentencing factors under 18 U.S.C. § 3553(a).
VACATED and REMANDED.