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 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.
Judge(s): Per Curiam
Jurisdiction: U.S. Court of Appeals, Ninth Circuit
Related Categories: Government / Politics
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|Plaintiff Lawyer(s)||Plaintiff Law Firm(s)|
|Christina Cabanillas||U.S. Department of Justice|
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