United States v. Rojas-Pedroza

Venancio Rojas-Pedroza entered the United States illegally in 1982. He was removed or deported on five occasions between 1997 and 2010 and returned each time. Upon being discovered in 2010, Rojas was indicted under 8 U.S.C. §§ 1326(a) and (b), which provides criminal penalties for removed or deported aliens who return with enhanced penalties assessed for conviction of an aggravated felony. The district court found Rojas’s April 2010 removal valid and admitted documents from Rojas’ immigration case file. Rojas was convicted by a jury, and the sentencing judge declined his request for a downward sentencing adjustment. The Ninth Circuit held that Rojas’s challenge to the 2010 removal order would not affect the § 1326(a) charge because the government relied on other facts to support the charge. The panel found the 1998 removal order valid because Rojas did not show prejudice from the immigration judge’s failure to inform him of pre-conclusion departure as available relief. Following the test for prejudice outlined in United States v. Barajas-Alvarado, the panel found that Rojas would not have been granted voluntary removal in 1998 based upon his equities. The panel found the immigration file documents were not testimonial and admitting them did not violate Rojas’s Sixth Amendment rights. The panel held that the district court did not abuse its discretion when deciding Rojas did not accept responsibility to warrant a downward adjustment in sentencing because the district court focused on the particular facts and did not articulate a per se rule. The panel also held it was not substantively unreasonable for the district court to decline to follow an amendment to the Sentencing Guidelines not scheduled to take effect until after Rojas’s sentencing, finding no evidence the amendment had retroactive effect. AFFIRMED.