United States v. Guerrero-Jasson

When applying the twenty-year statutory maximum penalty under 8 U.S.C. § 1326(b), whether the defendant was removed before or after an aggravated felony conviction must be submitted to a jury or admitted by the defendant.

Defendant Manuel Guerrero-Jasso was brought to the United States when he was eleven years old. On April 7, 2009, April 16, 2009 and January 19, 2011 he was removed from the United States and sent back to Mexico. On May 20, 2010 Guerrero-Jasso was convicted of an aggravated felony. Later, Guerrero-Jasso was charged under 8 U.S.C. § 1326 for reentering the country as a removed alien, which he plead guilty to. In the application to submit a guilty plea he admitted that he entered the county on one of the three dates, but did not specifically admit to which date. Under 8 U.S.C. § 1326(a) a person convicted under the statute faces a fine and a maximum sentence of two years imprisonment. However, under subsection (b) if the defendant was convicted of an aggravated felony before re-entry, then the maximum sentence is twenty years. Under Apprendi v. New Jersey in order to increase the maximum penalty, the defendant must admit to the dates of re-entry or the dates of re-entry “must be submitted to a jury to be proved beyond a reasonable doubt.” During the pre-sentencing phase, the defendant objected to the pre-sentencing reports, which stated he admitted to the dates of re-entry. The district court found that the defendant had admitted to the re-entry dates and sentenced him under 1326(b) to forty-two months in prison. The panel found that Guerrero-Jasso did not admit to re-entering the country after his aggravated felony conviction and the fact was never submitted to a jury. Therefore, in order to uphold Apprendi, the sentencing must be vacated. REVERSED AND REMANDED.