FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 18-50199 Plaintiff-Appellee, D.C. No. v. 8:18-cr-00043- JVS-1 MIGUEL SEBASTIAN VALLE, AKA Miguel Sebastian Balle, AKA Miguel Valle Cruz, AKA Miguel OPINION Valle Sebastian, Defendant-Appellant. Appeal from the United States District Court for the Central District of California James V. Selna, District Judge, Presiding Argued and Submitted July 10, 2019 Pasadena, California Filed October 9, 2019 Before: Milan D. Smith, Jr. and Michelle T. Friedland, Circuit Judges, and Stanley A. Bastian, * District Judge. Opinion by Judge Friedland * The Honorable Stanley A. Bastian, United States District Judge for the Eastern District of Washington, sitting by designation. 2 UNITED STATES V. VALLE SUMMARY ** Criminal Law The panel vacated a sentence for illegal reentry into the United States after deportation in violation of 8 U.S.C. § 1326, and remanded for resentencing. The panel held that—as the Government conceded—the district court erred in concluding that, in calculating the Sentencing Guidelines range, proof of continuous presence in the United States was not required. The panel held that the district court’s alternative holding that, as a factual matter, the defendant was continuously present in the United States from 2004 to 2017 was also erroneous. The panel held that because enhancements depending on that continuous-presence finding raised the defendant’s offense level by significantly more than 4 and far more than doubled his sentencing range, the Government was required to establish the defendant’s continuous presence by clear and convincing evidence. The panel held that the Government cannot establish by clear and convincing evidence a non-citizen’s continuous presence in the United States since the alleged time of reentry without submitting any direct evidence of where the non-citizen was for more than a decade. The panel gave some weight to the inference that a non-citizen who had previously returned after being removed and who had family in the United States would have made efforts to stay in the country. The panel ** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. UNITED STATES V. VALLE 3 concluded, however, that this inference is not enough to carry the Government’s burden to prove the thirteen years of continuous presence in the United States necessary to support application of the enhancements to the defendant. The panel remanded for resentencing based on a Guidelines range of 1 to 7 months. Because the Government failed to carry its burden despite an extensive factual inquiry at the original sentencing, the panel held that on remand the Government may not submit new evidence of the defendant’s whereabouts. Because the defendant has already been in custody for about 20 months, the panel ordered the mandate to be issued forthwith. COUNSEL Brianna Fuller Mircheff (argued), Deputy Federal Public Defender; Hilary Potashner, Federal Public Defender; Office of the Federal Public Defender, Los Angeles, California; for Defendant-Appellant. Lawrence E. Kole (argued), Assistant United States Attorney; Dennise D. Willett, ...
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