United States of America v. Juan Navarro-Garcia

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JUAN NAVARRO-GARCIA,
Defendant-Appellant.
No. 18-10147
D.C. No.
2:17-cr-00389-RCJ-PAL-1
MEMORANDUM*
Appeal from the United States District Court
for the District of Nevada
Robert Clive Jones, District Judge, Presiding
Argued and Submitted January 15, 2019
San Francisco, California
Before: WALLACE and FRIEDLAND, Circuit Judges, and LASNIK,** District
Judge.
Juan Navarro-Garcia pleaded guilty to the offense of being a “Deported
Alien Found Unlawfully in the United States” under 8 U.S.C. § 1326 on January
10, 2018. The parties recommended a sentence of time served. The district court
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The Honorable Robert S. Lasnik, United States District Judge for the
Western District of Washington, sitting by designation.
FILED
FEB 4 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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varied upward from the range under the United States Sentencing Guidelines (“the
Guidelines”) and imposed a sentence of 18 months. We have jurisdiction under 28
U.S.C. § 1291 and 18 U.S.C. § 3742, and we vacate and remand.
The district court determined that Navarro-Garcia had an offense level of 6
and a criminal history category of IV, giving rise to a Guidelines range of 6 to 12
months. At the time of his hearing on April 9, 2018, Navarro-Garcia had been in
federal custody for four and a half months, and in state custody for three and a half
years. The government recommended a sentence of time served, a downward
departure from the Guidelines, because of the time Navarro-Garcia had already
served in state custody. See U.S.S.G. § 2L1.2 cmt. n.6 (2016).1 The district court
held that it could not grant credit for the time served in state custody because it was
on a separate and unrelated conviction. Furthermore, relying on the finding that
“[t]he government [was] having difficulty, especially in the Ninth Circuit, of
deporting people with crime convictions who are eligible for deportation,” the
district court held that it could not take into consideration the fact that Navarro-
Garcia would be automatically deported following his release. Instead, the court
held that it “[had] to enter separate punishment,” and it imposed a sentence of 18
months.
1 These were the Guidelines in effect at the time of the sentencing
hearing on April 9, 2018.

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We have discretion to correct an error raised for the first time on appeal if
(1) it has not been intentionally relinquished or abandoned, (2) it is a plain or
obvious error, and (3) it has affected the defendant’s substantial rights. Molina-
Martinez v. United States, 136 S. Ct. 1338, 1343 (2016) (citing United States v.
Olano, 507 U.S. 725, 732-736 (1993)); see Fed. R. Crim. P. 52(b). Once these
three conditions have been met, we exercise discretion to correct the error if it
“seriously affects the fairness, integrity, or public reputation of judicial
proceedings.” Id. (quoting Olano, 507 U.S. at 736). The Supreme Court has held
that a failure to correct a plain Guidelines error that affects a defendant’s
substantial rights satisfies the fourth part of the analysis—that is to say, it will
seriously affect the fairness, integrity, and public reputation of judicial
proceedings. Rosales-Mireles v. United States, 138 S. Ct. 1897, 1911 (2018).
The district court committed plain error. First, the court failed to recognize
that it had discretion to grant credit for the time served by Navarro-Garcia in state
custody. U.S.S.G. § 2L1.2 cmt. n.6 (2016). Second, the finding that Navarro-
Garcia was unlikely to be deported was erroneous, as the government conceded.
These errors are obvious, and Navarro-Garcia did not intentionally abandon them.
They have affected his substantial rights, as his sentence is 50 percent longer than
the upper end of the Guidelines range. U.S.S.G. ch. 5, pt. A (sentencing table). We
exercise our discretion to correct them.

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This is not the first time that the district court has relied on its erroneous
finding concerning the government’s deportation policies in sentencing
undocumented criminal defendants. See, e.g., Sentencing Transcript, United States
v. Chalma-Chalma, No. 3:14-cr-52- RCJ-WGC (D. Nev. Mar. 11, 2015); United
States v. Santibanes-Leon, 671 F. App’x 589 (9th Cir. 2016); United States v.
Hernandez-Guzman, 708 F. App’x 907, 909 n.1 (9th Cir. 2017). Reassignment is
therefore advisable in these unusual circumstances to preserve the appearance of
justice. United States v. Working, 287 F.3d 801, 809-10 (9th Cir. 2002) (citing
Smith v. Mulvaney, 827 F.2d 558, 562-63 (9th Cir. 1987)).
SENTENCE VACATED AND REMANDED FOR RE-ASSIGNMENT
AND RE-SENTENCING.

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