USA v. Francisco Barrios-Siguenza

Filing

FILED PER CURIAM OPINION (SIDNEY R. THOMAS, RAYMOND C. FISHER and MARSHA S. BERZON) VACATED IN PART; AFFIRMED IN PART; REMANDED. FILED AND ENTERED JUDGMENT. [9050364]

Case: 13-10110

04/09/2014

ID: 9050364

DktEntry: 39-1

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
FRANCISCO BARRIOS-SIGUENZA,
AKA Francisco Barrios-Siquenza,
Defendant-Appellant.

No. 13-10110
D.C. No.
4:12-cr-01472DCB-BGM-1

OPINION

Appeal from the United States District Court
for the District of Arizona
David C. Bury, District Judge, Presiding
Argued and Submitted
March 12, 2014—Berkeley, California
Filed April 9, 2014
Before: Sidney R. Thomas, Raymond C. Fisher,
and Marsha S. Berzon, Circuit Judges.
Per Curiam Opinion

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UNITED STATES V. BARRIOS-SIGUENZA
SUMMARY*

Criminal Law
In a per curiam opinion, the panel declined the
government’s request to affirm a conviction for assault on a
federal officer without prejudice to a later request by the
defendant to vacate the conviction, should the defendant, who
has since been deported, return to the United States or waive
his right to be physically present at trial.
The panel saw no reason to apply United States v.
Aguilar-Reyes, 723 F.3d 1014 (9th Cir. 2013), which
concerned only resentencing. The panel observed that given
the government’s authority to permit the defendant to return
for retrial, and counsel’s assurances that the defendant would
be willing to do so, this case is unlikely to languish for an
indefinite period before the district court. The panel wrote
that, most importantly, because the defendant’s conviction for
assault on a federal officer will have been reversed, he must
be presumed innocent of that charge.

*

This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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COUNSEL
Kurt Kroese, Tuscon, Arizona, for Defendant-Appellant.
Christina Marie Cabanillas, Assistant United States Attorney,
Tuscon, Arizona, for Plaintiff-Appellee.

OPINION
PER CURIAM:
Francisco Barrios-Siguenza (“Barrios”) appeals from his
conviction following a jury trial for assault on a federal
officer in violation of 18 U.S.C. § 111(a)(1) and illegally
entering the United States in violation of 8 U.S.C. § 1325,
and from the 18-month sentence imposed thereafter. In a
memorandum disposition filed concurrently with this opinion,
we vacate Barrios’ conviction for assault on a federal officer,
and remand the case for a new trial on that charge.
Barrios has been deported during the pendency of this
appeal. The government requests that we therefore affirm his
conviction, without prejudice to a later request by him to
vacate the conviction consistent with our disposition, should
he return to the United States or waive his right to be
physically present at retrial. We decline to do so.
The opinion on which the government relies in support of
its requested remedy, United States v. Aguilar-Reyes,
723 F.3d 1014 (9th Cir. 2013), concerned only resentencing.
Although the government conceded sentencing error in
Aguilar-Reyes, id. at 1016, this Court affirmed the sentence,
allowing the defendant to move to vacate his sentence only if

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UNITED STATES V. BARRIOS-SIGUENZA

he “return[ed] to the United States or waive[d] his right to be
physically present at resentencing,” id. at 1018. In doing so,
Aguilar-Reyes followed the lead of the Second Circuit, which
had expressed concern about “the potential for undesirable
and even mischievous results” that could arise from “the
normal remedy of vacating the sentence and remanding for
resentencing[,]” where the defendant has been deported.
United States v. Suleiman, 208 F.3d 32, 41 (2d Cir. 2000); see
also United States v. Plancarte-Alvarez, 366 F.3d 1058,
1063–64 (9th Cir. 2004) (citing Suleiman, 208 F.3d at 38),
opinion amended on denial of reh’g, 449 F.3d 1059 (9th Cir.
2006). Specifically, the court was reluctant to “leave the case
for perhaps an extended period of time in the jurisdictional
limbo of the District Court’s suspense calendar,” during
which time “the defendant would be able to assert that the
sentence previously imposed has been vacated.” Suleiman,
208 F.3d at 41.
We see no reason to apply Aguilar-Reyes here. There is
no precedent for the proposition that this Court cannot, or
should not, vacate the invalid conviction of an individual who
has since been deported. We were assured at oral argument
that Barrios will return for trial should the government choose
to retry him and parole him into the country for that purpose.
Cf. United States v. Leal-Del Carmen, 697 F.3d 964, 975 (9th
Cir. 2012) (discussing the Attorney General’s authority to
parole aliens into the country to testify in criminal
prosecutions (citing 8 U.S.C. § 1182(d)(5)(A))). Given the
government’s authority to permit Barrios to return for retrial,
and counsel’s assurances that Barrios would be willing to do
so, this case is unlikely to languish for an indefinite period
before the district court, should the government choose to
retry Barrios.

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More importantly, because Barrios’ conviction for assault
on a federal officer will have “been reversed, unless and until
[Barrios] should be retried, he must be presumed innocent of
that charge.” Johnson v. Mississippi, 486 U.S. 578, 585
(1988). He should not be required to suffer the indignity —
and the collateral consequences — of this felony conviction
until such time as he is able to return to the United States.
VACATED in part, AFFIRMED in part, AND
REMANDED.