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U.S. v Barrios-Siguenza

Case No. 13-10110 (C.A. 9, Apr. 9, 2014)

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 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
 
Circuit Court Judge(s)
Marsha Berzon
Raymond Fisher
Sidney Thomas

 
Trial Court Judge(s)
David Bury

 
Plaintiff Lawyer(s) Plaintiff Law Firm(s)
Christina Cabanillas U.S. Department of Justice

 
Defendant Lawyer(s) Defendant Law Firm(s)
Kurt Kroese

 

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Click the maroon box above for a formatted PDF of the decision.
united states v. barrios-siguenza 5 [barrios] should be retried, he must be presumed innocent of entering the united states in violation of 8 u.s.c. § 1325, dcb-bgm-1 * christina marie cabanillas,assistant unitedstates attorney, david c. bury, district judge, presiding per curiam: and counsel’s assurances that barrios would be willing to do before: sidney r. thomas, raymond c. fisher, v. be presumed innocent of that charge. that barrios will return for trial should the government choose he return to the united states or waive his right to be conviction following a jury trial for assault on a federal more importantly, becausebarrios’convictionforassault until such time as he is able to return to the united states. resentencing[,]” where the defendant has been deported. aguilar-reyes followed the lead of the second circuit, which limbo of the district court’s suspense calendar,” during and marsha s. berzon, circuit judges. for retrial, and counsel’s assurances that the defendant would remanded. for publication for the ninth circuit government’s request to affirm a conviction for assault on a 208 f.3d at 41. for perhaps an extended period of time in the jurisdictional that charge.” johnson v. mississippi, 486 u.s. 578, 585 has since been deported. we were assured at oral argument federal officer without prejudice to a later request by the opinion this summary constitutes no part of the opinion of the court. it has opinion amended on denial of reh’g, 449 f.3d 1059 (9th cir. defendant-appellant. (1988). he should not be required to suffer the indignity — 2006). specifically, the court was reluctant to “leave the case physically present at resentencing,” id. at 1018. in doing so, and from the 18-month sentence imposed thereafter. in a prosecutions (citing 8 u.s.c. § 1182(d)(5)(a))). given the the government’s authority to permit the defendant to return kurt kroese, tuscon, arizona, for defendant-appellant. although the government conceded sentencing error in sentence previously imposed has been vacated.” suleiman, argued and submitted vacate the conviction consistent with our disposition, should appeal. the government requests that we therefore affirm his tuscon, arizona, for plaintiff-appellee. 4:12-cr-01472- 723 f.3d 1014 (9th cir. 2013), concerned only resentencing. no. 13-10110 should not, vacate the invalid conviction of an individual who aguilar-reyes, id. at 1016, this court affirmed the sentence, also united states v. plancarte-alvarez, 366 f.3d 1058, and even mischievous results” that could arise from “the officer in violation of 18 u.s.c. § 111(a)(1) and illegally barrios has been deported during the pendency of this united states v. barrios-siguenza 3 united states v. barrios-siguenza4 retry barrios. concerned only resentencing. the panel observed that given and remand the case for a new trial on that charge. plaintiff-appellee, so, this case is unlikely to languish for an indefinite period cir. 2012) (discussing the attorney general’s authority to united states court of appeals francisco barrios-siguenza, allowing the defendant to move to vacate his sentence only if and the collateral consequences — of this felony conviction parole aliens into the country to testify in criminal filed april 9, 2014 aguilar-reyes, 723 f.3d 1014 (9th cir. 2013), which government’s authority to permit barrios to return for retrial, francisco barrios-siguenza (“barrios”) appeals from his united states v. suleiman, 208 f.3d 32, 41 (2d cir. 2000); see its requested remedy, united states v. aguilar-reyes, been prepared by court staff for the convenience of the reader. cf. united states v. leal-del carmen, 697 f.3d 964, 975 (9th united states v. barrios-siguenza2 we vacate barrios’ conviction for assault on a federal officer, aka francisco barrios-siquenza, indefinite period before the district court. the panel wrote before the district court, should the government choose to the panel saw no reason to apply united states v. d.c. no. defendantto vacatethe conviction, should the defendant,who physically present at retrial. we decline to do so. his right to be physically present at trial. to retry him and parole him into the country for that purpose. summary* for the district of arizona on a federal officer will have “been reversed, unless and until criminal law vacated in part, affirmed in part, and counsel march 12, 2014—berkeley, california the opinion on which the government relies in support of had expressed concern about “the potential for undesirable per curiam opinion opinion memorandumdispositionfiledconcurrentlywith this opinion, be willing to do so, this case is unlikely to languish for an has since been deported, return to the united states or waive appeal from the united states district court in a per curiam opinion, the panel declined the conviction, without prejudice to a later request by him to we see no reason to apply aguilar-reyes here. there is 1063–64 (9th cir. 2004) (citing suleiman, 208 f.3d at 38), no precedent for the proposition that this court cannot, or assault on a federal officer will have been reversed, he must normal remedy of vacating the sentence and remanding for that, most importantly,becausethedefendant’sconvictionfor united states of america, he “return[ed] to the united states or waive[d] his right to be which time “the defendant would be able to assert that the


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