United States v. Salazar-Lopez ( 2007 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 06-50438
Plaintiff-Appellee,
v.  D.C. No.
CR-05-01834-MLH
MANUEL SALAZAR-LOPEZ,
OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the Southern District of California
Marilyn L. Huff, District Judge, Presiding
Argued and Submitted
May 16, 2007—Pasadena, California
Filed October 24, 2007
Before: Raymond C. Fisher and Richard R. Clifton,
Circuit Judges, and Jeremy D. Fogel,* District Judge.
Opinion by Judge Clifton
*The Honorable Jeremy D. Fogel, United States District Judge for the
Northern District of California, sitting by designation.
14167
14170 UNITED STATES v. SALAZAR-LOPEZ
COUNSEL
Carey D. Gorden (argued), Federal Defenders of San Diego,
Inc., San Diego, California; for the appellant.
Karen P. Hewitt, United States Attorney; Bruce R. Castetter,
Assistant United States Attorney; Christopher P. Tenorio
(argued), Assistant United States Attorney, San Diego, Cali-
fornia; for the appellee.
OPINION
CLIFTON, Circuit Judge:
We decide two questions. First, for a defendant convicted
of being a previously removed alien found in the United
States, in violation of 8 U.S.C. § 1326, we must resolve
whether the dates of a previous felony conviction and of a
previous removal from the United States, subsequent to that
conviction, must be alleged in the indictment and proved to
a jury for the defendant to be subject to an increased sentence
under 8 U.S.C. § 1326(b). We answer that question in the
affirmative. Second, we consider whether such an error, in a
context that affects only sentencing, is subject to harmless
error analysis. We answer that question in the affirmative, as
well. Since we hold that the error here was harmless, we
affirm the sentence imposed by the district court on this defen-
dant.1
1
In this opinion we address only Salazar-Lopez’s sentencing conten-
tions. We resolve his challenge to his conviction in an accompanying
memorandum disposition.
UNITED STATES v. SALAZAR-LOPEZ 14171
I. Background
After being apprehended by the Border Patrol about two
miles north of the U.S.-Mexico border on September 13,
2005, Manuel Salazar-Lopez was charged with one count of
being a previously removed alien “found in” the United States
in violation of 8 U.S.C. § 1326. The indictment did not allege
that Salazar-Lopez had been previously removed subsequent
to a felony conviction, nor did it allege a specific date for
Salazar-Lopez’s prior removal.
At trial, the Government introduced four pieces of evidence
to prove that Salazar-Lopez had been removed prior to this
arrest: (1) an order of an immigration judge from 2002, order-
ing that Salazar-Lopez be removed from the United States; (2)
a warrant of removal from 2002, bearing Salazar-Lopez’s
photograph, signature, and fingerprint; (3) a notice of rein-
statement of the 2002 order; and (4) a warrant of removal
dated December 8, 2004, also bearing Salazar-Lopez’s pic-
ture, fingerprint, and signature. In addition, the signature of
Immigration and Customs Enforcement Agent Lucas Leal
was also on the 2004 warrant, which, according to Leal’s tes-
timony, indicated that Leal had witnessed Salazar-Lopez’s
departure back to Mexico on May 31, 2005.
After Salazar-Lopez was convicted, the probation officer
filed a pre-sentence report recommending that Salazar-Lopez
be sentenced under 8 U.S.C. § 1326(b)(1), because the 2005
removal was subsequent to a 2003 felony conviction. Salazar-
Lopez objected, arguing that only the two-year maximum
under § 1326(a), and not the ten-year maximum provided for
in § 1326(b)(1),2 was applicable to his case, because the facts
2
This difference in statutory maximum sentences also results in a differ-
ence as to the maximum term of supervised release that can be imposed.
Because § 1326(a) has a maximum sentence of two years, only one year
of supervised release can follow the prison term, while the higher statutory
maximum of § 1326(b)(1) means that the imposition of up to three years
of supervised release is permitted. See 8 U.S.C. § 1326(a),(b); 18 U.S.C.
§§ 3583(b), 3559(a).
14172 UNITED STATES v. SALAZAR-LOPEZ
necessary to sustain § 1326(b)(1)’s sentencing enhancement
had not been charged in the indictment and proved beyond a
reasonable doubt to a jury. The district court rejected Salazar-
Lopez’s argument and largely adopted the pre-sentence
report’s sentencing calculations, with the exception that the
court decreased Salazar-Lopez’s offense level by two for
acceptance of responsibility. Salazar-Lopez was sentenced to
21 months of imprisonment and three years of supervised
release.
II. Analysis
Because Salazar-Lopez made a timely challenge to his sen-
tence below, he has properly preserved his claim of error.
“Preserved Apprendi challenges are reviewed de novo.”
United States v. Hollis, 490 F.3d 1149, 1154 (9th Cir. 2007)
(citing United States v. Smith, 282 F.3d 758, 771 (9th Cir.
2002)).
A. The Sixth Amendment Violation
An alien found in the United States after having been previ-
ously been removed violates 8 U.S.C. § 1326. The maximum
statutory penalty under § 1326 is two years of imprisonment
and one year of supervised release, unless the previous
removal was subsequent to certain types of convictions. See
8 U.S.C. § 1326(a),(b); 18 U.S.C. §§ 3583(b), 3559(a). In this
case, the district court found that Salazar-Lopez had been
removed after such a felony conviction, and so it determined
that the applicable statutory maximum was ten years of
imprisonment and three years of supervised release. 8 U.S.C.
§ 1326(b)(1), 18 U.S.C. §§ 3583(b), 3559(a). On appeal,
Salazar-Lopez renews his contention that his exposure to
§ 1326(b)’s higher statutory maximum violated Apprendi v.
New Jersey, 530 U.S. 466 (2000), because neither the date of
his prior removal nor the temporal relationship between the
removal and his prior conviction was alleged in the indict-
UNITED STATES v. SALAZAR-LOPEZ 14173
ment and proved to a jury.3 We agree that an Apprendi error
occurred here.
[1] In United States v. Covian-Sandoval, 462 F.3d 1090,
1096-98 (9th Cir. 2006), we recognized that the fact of a prior
conviction need not have been submitted to the jury under
Almendarez-Torres v. United States, 523 U.S. 224 (1998), but
nevertheless held that an Apprendi error had occurred where
the date of a prior removal (necessary to determine whether
the removal had followed the conviction in time) was not
admitted by the defendant or found by a jury. A similar error
is present here, since the jury was presented with evidence of
two removals, one which preceded Salazar-Lopez’s felony
conviction and one which followed, and was never asked to
find that the later removal had indeed occurred. Cf. United
States v. Martinez-Rodriguez, 472 F.3d 1087, 1093-94 (9th
Cir. 2007) (finding no error even though the jury did not find
an exact date of removal, because both removals put before
the jury were subsequent to the defendant’s felony conviction).4
3
Salazar-Lopez’s other sentencing contentions, that we ought to limit
Almendarez-Torres v. United States, 523 U.S. 224 (1998), to its facts
under the doctrine of constitutional doubt, that Almendarez-Torres has
been overruled, and that § 1326(b) is unconstitutional, are foreclosed by
Ninth Circuit precedent. United States v. Covian-Sandoval, 462 F.3d 1090,
1096-97 (9th Cir. 2006) (citing United States v. Beng-Salazar, 452 F.3d
1088 (9th Cir. 2006); United States v. Diaz-Argueta, 447 F.3d 1167, 1170
(9th Cir. 2006); United States v. Rodriguez-Lara, 421 F.3d 932, 949-50
(9th Cir. 2005)).
4
The Government argues that we should not follow Covian-Sandoval
because it conflicts with other Circuit precedent. We see no conflict with
the first case the Government cites, United States v. Castillo-Rivera, 244
F.3d 1020, 1025 (9th Cir. 2001). Castillo-Rivera addressed only the con-
tinuing viability of the Almendarez-Torres exception for prior convictions,
not whether the date of removal (as opposed to the date of the conviction)
had to be found by a jury. See id. The second case cited by the Govern-
ment, United States v. Lopez, 469 F.3d 1241 (9th Cir. 2006), did initially
contain some potentially confusing language on this issue, but that opinion
was amended, 2007 WL 2429368 (9th Cir. Aug. 29, 2007), in a way that
clarified the vitality of Covian-Sandoval and its application to that case,
id. at *6.
14174 UNITED STATES v. SALAZAR-LOPEZ
Salazar-Lopez’s case differs slightly from Covian-Sandoval,
however, because the error to which he points on appeal is not
only that the jury never made the required finding but also
that the Government never alleged in the indictment that he
had been removed on a specific, post-conviction date.
[2] Such an allegation was required. See United States v.
Cotton, 535 U.S. 625, 627, 632 (2002). As we noted in United
States v. Jordan, 291 F.3d 1091, 1095 (9th Cir. 2002), our
decision in United States v. Buckland, 289 F.3d 558 (9th Cir.
2002) (en banc), “answered for our circuit the question left
open by the Supreme Court in Apprendi, by holding that any
fact other than a prior conviction that increases the maximum
penalty for a federal crime must also be charged in an indict-
ment.” Here, the temporal relationship between Salazar-
Lopez’s removal and his previous conviction was a fact that
increased the maximum sentence that he faced. As such, the
date of the removal, or at least the fact that Salazar-Lopez had
been removed after his conviction, should have been alleged
in the indictment and proved to the jury. The failure to do so
was an Apprendi error.
B. Harmless Error
Having found such an error, we are faced with the question
of whether this error is amenable to harmless error review or
is instead a “structural error” automatically entitling Salazar-
Lopez to a resentencing. Salazar-Lopez contends that it is a
structural error, while the Government asserts that harmless
error analysis is appropriate and, furthermore, that the error
here was indeed harmless.
The Supreme Court has not squarely resolved this question.
Although it identified the question in Cotton, the fact that the
Court was reviewing for plain error in that case meant that it
did not have to decide whether this type of flaw in the indict-
ment is a structural error. Id. at 632-33. Instead, the Court
skipped to the plain error test’s fourth prong and held that
UNITED STATES v. SALAZAR-LOPEZ 14175
failing to allege a fact relevant to the statutory maximum and
submit it to the jury did not “seriously affect the fairness,
integrity, or public reputation of judicial proceedings”
because the evidence on the particular factual issue in Cotton,
drug quantity, was “overwhelming and essentially uncontro-
verted.” Id. at 632-33 (internal quotation marks omitted).
The Court’s more recent decision in Washington v.
Recuenco, 126 S. Ct. 2546 (2006), is also illustrative,
although not completely dispositive. In Recuenco, the Court
held that harmless error analysis did apply to errors arising
under Blakely v. Washington, 542 U.S. 296 (2004), reversing
the Supreme Court of Washington’s decision to the contrary.
Recuenco does not squarely foreclose Salazar-Lopez’s argu-
ment, though, because the Court there was focused on the
error of “fail[ing] to submit a sentencing factor to the jury,”
and did not consider Recuenco as “a case of charging error.”
Id. at 2252 n.3; 2553; see also id. at 2554 (Stevens, J., dissent-
ing) (characterizing majority opinion as avoiding the issue of
sufficient notice through the indictment). Although Cotton
and Recuenco strongly suggest that harmless error analysis
ought to apply here, they do not, by themselves, dispose of
Salazar-Lopez’s contention.
Salazar-Lopez argues that our decision in United States v.
Du Bo, 186 F.3d 1177 (9th Cir. 1999), requires that we treat
the current indictment error as a structural error demanding an
automatic resentencing. We held in Du Bo “that, if properly
challenged prior to trial, an indictment’s complete failure to
recite an essential element of the charged offense is not a
minor or technical flaw subject to harmless error analysis, but
a fatal flaw requiring dismissal of the indictment.” Id. at 1179.
The reach of Du Bo has been limited somewhat, as we have
distinguished it from situations where the challenge to the
indictment was untimely, because no objection was made at
trial. United States v. Velasco-Medina, 305 F.3d 839, 846-47
(9th Cir. 2002) (applying plain error review to an indictment’s
failure to allege an element of the crime, and refusing relief
14176 UNITED STATES v. SALAZAR-LOPEZ
because the defendant suffered no prejudice from the omis-
sion). We have, however, continued to apply the central hold-
ing of Du Bo to dismiss indictments in the face of timely
challenges. United States v. Omer, 395 F.3d 1087 (9th Cir.
2005), cert. denied, 127 S. Ct. 1118 (2007).
[3] We have a precedent more analogous to the current case
than Du Bo, however, and that is Jordan, 291 F.3d at 1094-
97. There, we held first that because “[d]rug quantity was nei-
ther charged in the indictment, nor submitted to the jury and
proved beyond a reasonable doubt,” the district court had
erred in using the statutory maximum applicable to 50 or
more grams of methamphetamine rather than that applicable
to an indeterminate quantity. Id. at 1095. Because the defen-
dant in Jordan had, as Salazar-Lopez has here, objected to the
pre-sentence report on the basis of this error, the Jordan court
considered the error preserved. Id. at 1094, 1095. As a result,
we reviewed the sentence not “for plain error, but instead for
harmless error.” Id. at 1095. We stated in Jordan that a defen-
dant’s “sentence ‘cannot stand unless the district court’s con-
stitutional Apprendi error was harmless beyond a reasonable
doubt.’ ” Id. (quoting United States v. Garcia-Guizar, 234
F.3d 483, 488 (9th Cir. 2000)); see also Hollis, 490 F.3d at
1154-57 (finding an Apprendi error where the indictment
failed to allege, and the jury did not find, drug type with ade-
quate specificity, but holding that this error was harmless).
The question here is whether Salazar-Lopez’s case is con-
trolled by Jordan or Du Bo.
[4] We conclude that Jordan controls, and thus that harm-
less error analysis does apply. First and foremost, the proce-
dural history of this case, the nature of Salazar-Lopez’s
challenge, and the nature of the relief he requests mirror Jor-
dan much more closely than Du Bo. Like Jordan, Salazar-
Lopez raised his Apprendi claim post-trial in his objections to
the pre-sentence report, see Jordan, 291 F.3d at 1094-95,
whereas in Du Bo the defendant objected to the indictment
“[m]ore than two months before trial,” see Du Bo, 186 F.3d
UNITED STATES v. SALAZAR-LOPEZ 14177
at 1179. Salazar-Lopez has consistently sought sentencing
relief for this flaw in the indictment, as in Jordan, 291 F.3d
at 1094, while the relief sought by Du Bo was to reverse the
judgment as a whole and dismiss the flawed indictment,
Du Bo, 186 F.3d at 1181. Ultimately, the real substance of
Salazar-Lopez’s claimed error is more akin to a “[f]ailure to
submit a sentencing factor to the jury,” as opposed to “charg-
ing error,” see Recuenco, 126 S. Ct. at 2552 n.3, 2553; cf.
United States v. Zepeda-Martinez, 470 F.3d 909 (9th Cir.
2006) (holding that a properly preserved Apprendi error, of
failing to submit the temporal relationship between a removal
and a prior conviction in a § 1326 prosecution, should be
reviewed for harmless error).
In addition, the logical underpinnings of Du Bo do not
counsel for an extension of Du Bo to the sentencing context.
The conclusion in Du Bo was compelled largely by two ratio-
nales: (1) that the question of whether a grand jury might have
indicted on an additional element was not amenable to harm-
less error review; and (2) that subjecting timely objections to
harmless error analysis would destroy any incentive on the
part of a defendant to object, since objecting would indicate
an awareness of the missing element and hence the harmless-
ness of the omission.5 Du Bo, 186 F.3d at 1179-80, 1180 n.3.
As for the first rationale, Jordan recognized the difficulty
of anticipating what a grand jury would have done if faced
with a close factual allegation, and indeed that consideration
was part of the reason that the Jordan court ultimately con-
cluded that it could not hold the Apprendi error there, as to
drug quantity, harmless.6 See Jordan, 291 F.3d at 1096. As
5
To the extent Du Bo was premised on indictment errors being jurisdic-
tional, see Du Bo, 186 F.3d at 1180; see also United States v. Omer, 429
F.3d 835, 836 (9th Cir. 2005) (Graber, J., dissenting from denial of rehear-
ing en banc), that rationale has been overruled by the Supreme Court in
Cotton, 535 U.S. at 629-31; see also Omer, 429 F.3d at 837 (Graber, J.,
dissenting from denial of rehearing en banc).
6
As we noted in Jordan, when the indictment fails to make the requisite
allegation:
14178 UNITED STATES v. SALAZAR-LOPEZ
Jordan illustrated, there may be cases where the failure to
include a relevant fact in the indictment makes any conclusion
as to harmlessness too speculative, but the existence of that
potential difficulty need not preclude the use of harmless error
analysis in every case. Cf. Cotton, 535 U.S. at 632-33 (refus-
ing to find that a failure to allege drug quantity “seriously
affect[ed] the fairness, integrity, or public reputation of judi-
cial proceedings” where the evidence “was ‘overwhelming’
and ‘essentially uncontroverted,’ ” so that “[s]urely the grand
jury, having found that the conspiracy existed, would have
also found that the conspiracy involved at least 50 grams of
cocaine base”) (quoting Johnson v. United States, 520 U.S.
461, 470 (1997)). Additionally, while the grand jury’s
restraining function—which Du Bo emphasized, 186 F.3d at
1179—is no doubt important, the Supreme Court has since
recognized that the “check on prosecutorial power” provided
by “the Fifth Amendment grand jury right” is “surely no less
true of the Sixth Amendment right to a petit jury, which,
unlike the grand jury, must find guilt beyond a reasonable
doubt,” Cotton, 535 U.S. at 634. Yet the failure to submit ele-
[W]e would first have to determine whether the grand jury would
have indicted the defendant for over 50 grams . . . . Then, because
Jordan had no notice from the indictment that quantity would be
an issue at trial, we would need to determine whether Jordan
might have contested quantity and what evidence [he] might have
presented. Finally, to affirm the sentence, we would need to be
able to say beyond any reasonable doubt that a jury, considering
the actual evidence at trial and perhaps other evidence that was
never presented, would have convicted [him] of the higher-
quantity offense.
Here, we cannot reasonably conclude that these issues can be
answered fairly based on reason and the record presented. When
quantity is neither alleged in the indictment nor proved to a jury
beyond a reasonable doubt, there are too many unknowns to be
able to say with any confidence, let alone beyond reasonable
doubt, that the error was harmless.
291 F.3d at 1096.
UNITED STATES v. SALAZAR-LOPEZ 14179
ments to the petit jury is reviewed for harmlessness. Neder v.
United States, 527 U.S. 1, 8-15 (1999). Given that the
“[f]ailure to submit a sentencing factor to the jury, like failure
to submit an element to the jury, is not structural error,”
Recuenco, 126 S. Ct. at 2553, we feel comfortable that
Salazar-Lopez’s asserted error can be adequately handled
under the harmless error framework employed by Jordan, so
that no extension of Du Bo to the sentencing context is
needed.
Du Bo’s second rationale, the encouragement of timely
objections to indictment deficiencies, is also inapplicable
here. In this case, Salazar-Lopez’s objections to the indict-
ment were timely for sentencing purposes (and hence pre-
served the sentencing claim for our review), but were made
only after the conclusion of his trial. To allow an omission in
the indictment, raised only after the completion of the trial, to
result in an automatic cap on the defendant’s sentence would
encourage defendants to remain silent at the time when an
indictment could reasonably be amended to present the neces-
sary allegations—the exact opposite of the result Du Bo
hoped to achieve.
In light of the Supreme Court’s discussions in Cotton and
Recuenco, and the striking similarity of this case to Jordan,
we view Du Bo to be distinguishable. Du Bo addressed only
timely challenges to the sufficiency of the indictment, not the
instant Apprendi sentencing error that Salazar-Lopez raises.
We hold that Jordan controls Salazar-Lopez’s case, and thus
we must inquire as to whether the failure to allege and prove
to the jury the temporal relationship between Salazar-Lopez’s
prior conviction and his removal was harmless error.
[5] On this record, we hold that the error in the indictment
was indeed harmless. The evidence supporting Salazar-
Lopez’s later removal is “overwhelming and uncontroverted,”
Zepeda-Martinez, 470 F.3d at 913. At trial, the government
introduced a warrant of removal showing that Salazar-Lopez
14180 UNITED STATES v. SALAZAR-LOPEZ
was ordered removed on December 8, 2004, and was physi-
cally removed to Mexico on May 31, 2005. The warrant bore
Salazar-Lopez’s name, immigration identification number,
photograph, signature, and fingerprint. We noted in Zepeda-
Martinez that “[t]his warrant is sufficient alone to support a
finding of removal beyond a reasonable doubt.” Id. (citing
United States v. Bahena-Cardenas, 411 F.3d 1067, 1075 (9th
Cir. 2005)). Here, there is even more evidence of Salazar-
Lopez’s later removal, as the Government produced at trial
the immigration officer who executed this warrant. That offi-
cer identified his signature on the warrant, and testified that
this signature indicated that he had witnessed Salazar-Lopez
leave the United States on May 31, 2005. At trial, Salazar-
Lopez did not produce any evidence or argument, beyond
general suggestions of possible clerical errors relating to the
storage and upkeep of his file, to cast doubt on the authentic-
ity of this evidence.7
[6] Although we do not consider new admissions made at
sentencing in our harmless error inquiry, Jordan, 291 F.3d at
1097, we do consider sentencing proceedings insofar as they
would help us adduce what other evidence might have been
produced at trial, had the question been properly put before
the jury, Zepeda-Martinez, 470 F.3d at 913 & n.3. Here,
because the pre-sentence report recommended that Salazar-
Lopez’s offense level be increased by four for a previous
deportation subsequent to a felony conviction, pursuant to
U.S. Sentencing Guidelines § 2L1.2(b)(1)(D), the issue of the
temporal relationship between his last removal and his prior
conviction was squarely raised at Salazar-Lopez’s sentencing.
Salazar-Lopez, however, made no factual attack on the appli-
cability of this increase. While there may be some cases and
7
We do not suggest that evidence of such errors, attacking the accuracy
or veracity of documents such as the warrant of removal, could never give
rise to reasonable doubt concerning whether a removal had occurred. We
hold only that Salazar-Lopez’s showing on this point, in his particular
case, was so weak as to not disturb our conclusion of harmlessness.
UNITED STATES v. SALAZAR-LOPEZ 14181
issues, such as the drug quantity question in Jordan, 291 F.3d
at 1096-97, where the record will be too indeterminate for us
to conclude what result would have obtained had the question
been properly placed before the grand and petit juries, this
particular question concerning the date of one of Salazar-
Lopez’s removals is not one of them. In light of the record
here, “we are satisfied beyond a reasonable doubt that . . . the
result ‘would have been the same absent the error.’ ” Zepeda-
Martinez, 470 F.3d at 913-14 (quoting Neder, 527 U.S. at 19).
III. Conclusion
Although the temporal relationship between Salazar-
Lopez’s removal and his prior conviction should have been
alleged in the indictment and proved to the jury, we neverthe-
less affirm the sentence imposed because we find that this
error was harmless in his case.
AFFIRMED.