United States v. Rodriguez-Ocampo

“An order of removal that provided the alien with no opportunity for judicial review and cannot support a prosecution under 8 U.S.C. § 1326, or a reinstatement of such an order, cannot support a sentencing enhancement under U.S.S.G. § 2L1.2(b).”

Rodriguez-Ocampo appealed a sixteen-level sentencing enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(ii). Rodriguez-Ocampo, a Mexican national, was convicted of two counts of illegal entry under 8 U.S.C. § 1325. The district court held that the sentencing enhancement applied because Rodriguez-Ocampo was removed from the U.S. pursuant to a stipulated removal order in 2000. That order was reinstated in 2003 and 2004 when Rodriguez-Ocampo was removed again after illegal entry to the U.S. The Ninth Circuit noted that the stipulated removal order was the only removal order issued in the case. The Ninth Circuit also noted that the stipulated removal order was unconstitutional because it violated Rodriguez-Ocampo’s due process rights. The Ninth Circuit held that “an order of removal that provided the alien with no opportunity for judicial review and cannot support a prosecution under 8 U.S.C. § 1326, or a reinstatement of such an order, cannot support a sentencing enhancement under U.S.S.G. § 2L1.2(b).” VACATED and REMANDED.