United States v. Flores-Sanchez ( 2007 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee, No. 06-10026
v.
 D.C. No.
CR-04-00802-DGC
JOSE FLORES-SANCHEZ, a.k.a. Jose
Mendoza-Sanchez, OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the District of Arizona
David G. Campbell, District Judge, Presiding
Argued and Submitted
January 9, 2007—San Francisco, California
Filed February 15, 2007
Before: Alfred T. Goodwin, A. Wallace Tashima, and
William A. Fletcher, Circuit Judges.
Opinion by Judge Goodwin
1883
1886 UNITED STATES v. FLORES-SANCHEZ
COUNSEL
Atmore L. Baggot, Apache Junction, Arizona, for the
defendant-appellant.
Emory T. Hurley, Assistant United States Attorney, Phoenix,
Arizona, for the plaintiff-appellee.
OPINION
GOODWIN, Circuit Judge:
Jose Flores-Sanchez (“Sanchez”) appeals his conviction
and sentence for illegal reentry after deportation in violation
of 8 U.S.C. § 1326.1 He assigns error to: (1) denial of his
motion to dismiss the indictments; (2) commencement of trial
one day after his first appearance on the superseding indict-
ment; (3) use of his prior convictions for sentence enhance-
1
8 U.S.C. § 1326 provides, in relevant part:
“(a) Subject to subsection (b) of this section, any alien who—
(1) has been denied admission, excluded, deported, or
removed or has departed the United States while an order of
exclusion, deportation, or removal is outstanding, and there-
after
(2) enters, attempts to enter, or is at any time found in, the
United States . . .
shall be fined under Title 18, or imprisoned not more than 2
years, or both.
(b) Notwithstanding subsection (a) of this section, in the case of
any alien described in such subsection—
...
(2) whose removal was subsequent to a conviction for
commission of an aggravated felony, such alien shall be
fined under such Title, imprisoned not more than 20 years,
or both.”
UNITED STATES v. FLORES-SANCHEZ 1887
ment purposes; and (4) alleged consideration of incorrect
information at the sentencing phase. We affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Sanchez was deported in 1996, after accumulating a crimi-
nal record in California and Washington. In 2004 he was
arrested in Arizona. After being read his Miranda rights, San-
chez told the border patrol agents that he was a citizen of
Mexico and that he did not have documents permitting him to
enter the United States.
A grand jury returned a one-count indictment on August 3,
2004, charging Sanchez with illegal reentry after deportation
in violation of 8 U.S.C. § 1326(a), enhanced by § 1326(b)(2).
He made his first appearance through counsel, at the arraign-
ment on the original indictment, on August 11, 2004. A super-
seding indictment issued on May 11, 2005, changing the
charge to attempted illegal reentry after deportation, again in
violation of § 1326(a) and enhanced by § 1326(b)(2). The
superseding indictment did not allege any specific overt act
committed in furtherance of reentry, stating in its entirety that:
On or about July 5, 2004, JOSE FLORES-
SANCHEZ, an alien, knowingly and intentionally
attempted to enter the United States of America at or
near San Luis in the District of Arizona, after having
been previously denied admission, excluded,
deported, and removed from the United States at or
near Nogales, Arizona, on or about December 9,
1996, and not having obtained the express consent of
the Secretary of the Department of Homeland Secur-
ity to reapply for admission. In violation of Title 8,
United States Code, Sections 1326(a) and enhanced
by (b)(2).
Sanchez was arraigned on the new indictment on May 17.
That same day he filed a motion to dismiss both indictments
1888 UNITED STATES v. FLORES-SANCHEZ
“for failure to allege a material element,” arguing that neither
indictment alleged the aggravated felony necessary to
enhance the charge against him under § 1326(b).
The jury trial began the following day, without objection on
Speedy Trial Act grounds. On May 19, the district court
denied Sanchez’s motion to dismiss, and the jury found him
guilty of attempted illegal reentry as charged.
The Presentence Report (“PSR”) recommended increasing
Sanchez’s base offense level by sixteen pursuant to United
States Sentencing Guidelines (“U.S.S.G.” or “Guidelines”)
§ 2L1.2(b)(1)(A), because he had previously been convicted
of a qualifying felony drug trafficking offense (a 1993 convic-
tion in Yakima County, Washington). The PSR also calcu-
lated Sanchez’s criminal history as within Category IV of the
Guidelines sentencing table because of his 1993 conviction
and two convictions he sustained in Kern County, California:
felony drug possession in 1994 and misdemeanor theft in
1998. Combined with his total offense level of twenty-four,
this criminal history score yielded an advisory sentencing
range of seventy-seven to ninety-six months. At the sentenc-
ing hearing, the district court mistakenly stated that Sanchez
admitted to the 1993 conviction in a plea agreement, even
though no such agreement existed and Sanchez did not admit
to the conviction. The district court imposed a sentence of
seventy-seven months, the low end of the Guideline range.
DISCUSSION
The Superseding Indictment
[1] As noted, Sanchez challenged both the original and
superseding indictments in the district court on the ground
that they failed to allege any prior aggravated felony neces-
sary to enhance his sentence under § 1326(b)(2), an omission
he argued was a fatal defect requiring dismissal. He took a
new approach on appeal, contending that the superseding
UNITED STATES v. FLORES-SANCHEZ 1889
indictment was defective because it did not allege any overt
act toward reentry, as required to sustain an attempt charge
under § 1326 by our decision in United States v. Resendiz-
Ponce, 425 F.3d 729 (9th Cir. 2005). Assuming that Sanchez
did not forfeit this claim, the issue was taken away by the
Supreme Court on the very day this appeal was argued.
Reversing our decision in Resendiz-Ponce, the Court held that
the failure to allege an overt act is not a fatal defect in an
indictment charging attempted illegal reentry under § 1326(a).
United States v. Resendiz-Ponce, 127 S. Ct. 782, 787-88
(2007). Reasoning that the word “attempt” carries with it an
implied allegation of an overt act in furtherance of the
charged attempt, the Court concluded that such indictments
satisfy the requirement of Federal Rule of Criminal Procedure
7(c)(1) that an indictment “shall be a plain, concise, and defi-
nite written statement of the essential facts constituting the
offense charged.” Id. at 789.
[2] Therefore, notwithstanding its failure to allege an overt
act toward reentry, Sanchez’s indictment is not defective on
that score. There was no error in denying the motion to dis-
miss.
Speedy Trial Act
The second asserted error in this appeal is that commence-
ment of Sanchez’s trial one day after his first appearance on
the superseding indictment, without his written consent, vio-
lated provisions of the Speedy Trial Act. See 18 U.S.C.
§ 3161(c)(2), (d)(1). We review the district court’s application
of the Speedy Trial Act de novo. United States v. Karsse-
boom, 881 F.2d 604, 606 (9th Cir. 1989).
[3] First, § 3161(d)(1) is of no help to Sanchez, because by
its terms this provision applies only when an indictment is
dismissed upon the defendant’s motion and the defendant is
subsequently reindicted. See United States v. Rojas-
Contreras, 474 U.S. 231, 239 (1985) (Blackmun, J., concur-
1890 UNITED STATES v. FLORES-SANCHEZ
ring in the judgment); United States v. Harris, 724 F.2d 1452,
1454 (9th Cir. 1984).
[4] Section 3161(c)(2) is similarly unavailing. This portion
of the Speedy Trial Act creates a thirty-day trial preparation
safe harbor, guaranteeing that without a defendant’s written
consent, “the trial shall not commence less than thirty days
from the date on which the defendant first appears through
counsel or expressly waives counsel.” 18 U.S.C. § 3161(c)(2).
Because Sanchez failed to raise this issue below, we may
review only for plain error. Fed. R. Crim. P. 52(b) (“A plain
error that affects substantial rights may be considered even
though it was not brought to the court’s attention.”); United
States v. Recio, 371 F.3d 1093, 1099-1100 (9th Cir. 2004).
Under the four-part test set out in United States v. Olano, 507
U.S. 725 (1993), we may notice error under Rule 52(b) only
if we determine that: (1) there was “error”; (2) the error was
“plain”; and (3) the error affected Sanchez’s “substantial
rights.” Id. at 732-35. If these conditions are met, we may cor-
rect the forfeited error only if it “seriously affect[s] the fair-
ness, integrity or public reputation of judicial proceedings.”
Id. at 736 (alteration in original) (internal quotation marks and
citations omitted).
[5] Sanchez’s argument fails on the first prong of the Olano
test. Relying principally on United States v. Harris, 724 F.2d
1452 (9th Cir. 1984), Sanchez asserts that the thirty-day trial
preparation clock restarts upon issuance of a superseding
indictment, and does not begin running until the defendant’s
initial appearance on the new indictment. Harris does support
Sanchez’s position, as it construed § 3161(c)(2) as “guaran-
teeing that the defendant is not forced to trial less than thirty
days from the date on which the defendant first appears on the
indictment on which the defendant ultimately goes to trial.”
724 F.2d at 1455 (emphasis in original).
[6] Unfortunately for Sanchez, the Harris analysis upon
which he relies has been unequivocally rejected by the
UNITED STATES v. FLORES-SANCHEZ 1891
Supreme Court. In United States v. Rojas-Contreras, 474 U.S.
231 (1985), decided one year after Harris, the Court consid-
ered a decision which held, in express reliance on Harris, that
a defendant was entitled to a new thirty-day trial preparation
window following arraignment on a superseding indictment.
Id. at 234. The Court noted that the statute’s language “clearly
fixes the beginning point for the trial preparation period as the
first appearance through counsel,” and “does not refer to the
date of the indictment, much less to the date of any supersed-
ing indictment.” Id. In light of the statute’s clear language, the
Court had “no choice but to conclude that Congress did not
intend that the 30 day trial preparation period begin to run
from the date of filing of a superseding indictment.” Id.2
[7] We have no difficulty concluding that the statute’s
requirements have been met in this case. Sanchez’s thirty-day
trial preparation clock began to run on August 11, 2004, when
he first appeared through trial counsel. This thirty-day period
ended long before he went to trial on May 18, 2005. Thus, the
commencement of Sanchez’s trial one day after being
arraigned on the superseding indictment was not error, much
less “plain” error. Because Sanchez has failed to show any
error in the commencement of his trial, we need not address
the remainder of the Olano analysis.
Sanchez’s Prior Convictions
Sanchez raises a pair of arguments challenging the district
court’s use of his prior convictions to enhance his statutory
maximum sentence under § 1326(b)(2), and to calculate his
advisory Guidelines sentencing range. He contends first that
2
The Court found further support for its interpretation of § 3161(c)(2)
in the surrounding statutory provisions, stating: “It is clear that Congress
knew how to provide for the computation of time periods under the Act
relative to the date of an indictment. Had Congress intended that the 30-
day trial preparation period of § 3161(c)(2) commence or recommence on
such a date, it would have so provided.” Rojas-Contreras, 474 U.S. at 235.
1892 UNITED STATES v. FLORES-SANCHEZ
he was entitled to a jury determination of the existence of his
prior convictions. Second, he argues that because of the dis-
proportionate impact his prior convictions had on his sentence
in this case, the government was required to prove the priors
beyond a reasonable doubt. Reviewing the constitutionality of
his sentence de novo, United States v. Leon H., 365 F.3d 750,
752 (9th Cir. 2004), we find no merit in Sanchez’s arguments.
[8] Under Almendarez-Torres, a prior aggravated felony
conviction does not have to be charged in an indictment, or
proven to a jury, before it can be used for sentence enhance-
ment pursuant to § 1326(b)(2). Almendarez-Torres v. United
States, 523 U.S. 224, 226-27 (1998). Sanchez attempts to
sidestep Almendarez-Torres here, arguing that while its rule
applies to prior convictions that a defendant admits or does
not contest, it should not apply when a defendant disputes the
fact of a prior conviction. Because he “disputed” the fact of
his prior convictions in the district court, Sanchez argues that
he was entitled to a jury determination of their existence.
However, we have consistently applied Almendarez-Torres to
cases in which the defendant did not admit the prior convictions,3
and the narrow distinction between “not admitting” and “dis-
puting” a prior conviction has no bearing on the constitutional
question of whether punishment may be enhanced when the
court, rather than a jury, finds that a defendant has sustained
a prior aggravated felony. Because Almendarez-Torres and
our decisions applying it clearly permit a sentencing court to
make this finding, we reject Sanchez’s arguments to the con-
trary on the basis that he has “disputed,” rather than merely
“not admitted,” his prior convictions.
[9] Independent of his failed jury determination argument,
Sanchez argues that the government was required to prove the
3
See, e.g., United States v. Beng-Salazar, 452 F.3d 1088, 1090-91 (9th
Cir. 2006) (citing United States v. Rodriguez-Lara, 421 F.3d 932, 949-50
(9th Cir. 2005)); United States v. Pacheco-Zepeda, 234 F.3d 411, 414-15
(9th Cir. 2000) (as amended).
UNITED STATES v. FLORES-SANCHEZ 1893
existence of his prior convictions beyond a reasonable doubt
because of the tenfold increase in the statutory maximum sen-
tence to which § 1326(b)(2) exposed him. However, under
Almendarez-Torres, a prior aggravated felony conviction is
not an element of the substantive offense of attempted reentry
after deportation but is instead a sentence enhancement. See
United States v. Romero-Rendon, 220 F.3d 1159, 1161 (9th
Cir. 2000). For this reason, the government need not prove its
existence beyond a reasonable doubt. Id.; see also Apprendi
v. New Jersey, 530 U.S. 466, 490 (2000) (“Other than the fact
of a prior conviction, any fact that increases the penalty for a
crime beyond the prescribed statutory maximum must be sub-
mitted to a jury, and proved beyond a reasonable doubt.”).
Mistaken Statement at Sentencing
Citing United States v. Jordan, 256 F.3d 922, 931 (9th Cir.
2001), for the proposition that a defendant has a due process
right not to be sentenced on the basis of materially incorrect
information, Sanchez contends that the district court’s “erro-
neous belief” that he had admitted the Yakima County traf-
ficking conviction in a plea bargain constitutes a due process
violation.
[10] Having heard testimony of a fingerprint-based FBI
report tying Sanchez to each of the three prior convictions at
issue, and having considered defense counsel’s arguments and
objections, the district court found that the Kern County mis-
demeanor conviction belonged to Sanchez. The court relied
on the fact that it appeared on the same FBI rap sheet that “in-
cludes the delivery of a controlled substance offense in para-
graph 22 [the Yakima County conviction], which the
defendant has admitted occurred in the factual basis of the
plea agreement.” The district court was clearly mistaken, as
no plea agreement was mentioned in the jury trial over which
he had presided. However, we do not conceive of this mis-
statement as “materially incorrect information” upon which
Sanchez was sentenced. The material element — the fact of
1894 UNITED STATES v. FLORES-SANCHEZ
conviction — was not in dispute. Of the three prior convic-
tions at play in this case, the Yakima County conviction is the
only one Sanchez never denied. He would have no argument
on this issue if the district court had merely referred to the
conviction as one that he “did not contest,” or “does not dis-
pute,” rather than stating that Sanchez “admitted” it occurred
pursuant to a plea agreement.
CONCLUSION
[11] The sufficiency of the indictment is no longer a viable
challenge in this case. There was no violation of the Speedy
Trial Act, nor were the sentencing judge’s findings of San-
chez’s prior convictions erroneous. Finally, the district court’s
misstatement at sentencing does not amount to a due process
violation.
AFFIRMED.