United States of America v. MIGUEL SEBASTIAN VALLE , AKA Miguel Sebastian Balle, AKA Miguel Valle Cruz, AKA…

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
M IGUEL SEBASTIAN VALLE , AKA
Miguel Sebastian Balle, AKA
Miguel Valle Cruz, AKA Miguel
Valle Sebastian,
Defendant-Appellant.
No. 18-50199
D.C. No.
8:18-cr-00043-
JVS-1
OPINION
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.

-- 1 of 20 --

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.

-- 2 of 20 --

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, Assistant United States
Attorney, Chief, Santa Ana Branch Office; Nicola T. Hanna,
United States Attorney; United States Attorney’s Office,
Santa Ana, California; for Plaintiff-Appellee.

-- 3 of 20 --

4 UNITED STATES V. VALLE
OPINION
FRIEDLAND, Circuit Judge:
This appeal requires us to evaluate the Government’s
burden of proof in demonstrating the applicability of
sentencing enhancements for an illegal reentry crime.
Specifically, we consider whether the Government can
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. We hold
that it cannot. We give 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. But that inference
is not enough to carry the Government’s burden here to
prove the thirteen years of continuous presence in the United
States necessary to support the enhancements applied to
Petitioner Miguel Valle’s sentence. We therefore vacate and
remand to the district court for resentencing.
I.
In 1998 and 2000, Miguel Valle was convicted of felony
drug offenses in California state court.1 Following prison
1 We note that there are some discrepancies in the record and
briefing about the exact dates of Valle’s state drug convictions. We need
not precisely determine which dates are correct, however, because all
possible dates are long enough ago that any differences are immaterial
to whether the sentencing enhancements at issue apply. Accordingly, in
this opinion we rely on the dates of conviction recorded by the
Department of Justice in records pertaining to Valle’s removals: July 8,
1998, and January 5, 2000.

-- 4 of 20 --

UNITED STATES V. VALLE 5
terms for these convictions, Valle was removed from the
United States in 1998 and 2002, respectively.
On June 17, 2004, Valle was arrested in Santa Ana,
California, for driving under the influence, but was not
subsequently convicted or removed from the country. More
than a decade later, on September 25, 2017, Valle was again
arrested by the Santa Ana police, who notified federal
immigration authorities of his presence. In June 2018, Valle
pleaded guilty to a charge of illegal reentry into the United
States after deportation, in violation of 8 U.S.C. § 1326.
Valle’s Pre-Sentence Report (“PSR”) calculated his
sentencing range under the United States Sentencing
Guidelines Manual (“Guidelines” or “U.S.S.G.”) starting
from a base offense level of 8 and criminal history score of
2. Valle was eligible for additional sentencing
enhancements if his 1998 and 2000 state drug convictions
occurred within ten and fifteen years, respectively, of the
start of his illegal reentry offense, so identifying the
appropriate Guidelines range required determining when
Valle’s illegal reentry “commenced.” See United States v.
Salazar-Robles, 207 F.3d 648, 649–50 (9th Cir. 2000)
(explaining that a § 1326 offense has only two elements:
“illegal return and being found” in the United States).
The PSR reasoned that Valle’s illegal reentry had
commenced by June 17, 2004, when he was arrested in Santa
Ana. The PSR did not, however, describe any contact with
law enforcement—despite the existence of an outstanding
bench warrant related to his 2004 arrest—or any other
information about Valle’s whereabouts between June 2004
and September 2017, when he was arrested for the instant
reentry offense. Using 2004 as the starting point for his
illegal reentry crime, the PSR added 12 levels to his base
offense level for his prior drug convictions according to

-- 5 of 20 --

6 UNITED STATES V. VALLE
U.S.S.G. § 2L1.2 and 5 points to his criminal history score
under U.S.S.G. § 4A1.1.2 Factoring in a 3 level downward
adjustment for acceptance of responsibility, the PSR arrived
at an offense level of 17, a criminal history score of 7, and a
corresponding criminal history category of IV. The resulting
recommended sentencing range was 37 to 46 months.
Valle objected to treating June 17, 2004 as the date the
offense began because there was no evidence in the PSR
about whether or how many times he left the United States
between that date and the date of his 2017 arrest. Instead, he
suggested that the offense actually began on September 25,
2017, the date he was “found in” the United States within the
meaning of 8 U.S.C. § 1326(a)(2). He contended that his
1998 and 2000 convictions were outside their respective ten-
and fifteen-year windows from 2017 and therefore could not
be counted in calculating either his offense level or criminal
history category.3 Without enhancements based on those
2 Section 4A1.1(a) requires adding 3 criminal history points for any
prior sentence of more than thirteen months, but the prior conviction is
only counted if it resulted in the defendant’s being incarcerated during
the fifteen years prior to the “commencement of the instant offense.”
U.S.S.G. § 4A1.1(a) & cmt. n.1. Section 4A1.1(b) requires adding
2 points for any prior sentence between 60 days and 13 months, but
excludes any sentence imposed more than ten years prior to the
defendant’s commencement of the instant offense. U.S.S.G. § 4A1.1(b)
& cmt. n.2. The guideline governing unlawful reentry, U.S.S.G. § 2L1.2,
provides enhancements to the base offense level for certain prior
convictions, but the Application Notes explain that only “convictions
that receive criminal history points under § 4A1.1(a), (b), or (c)” should
be used. U.S.S.G. § 2L1.2(b) & cmt. n.3. This means that the
enhancements only apply to convictions that fall within the time ranges
that count for criminal history points.
3 Valle’s 1998 and 2000 convictions would undoubtedly have
counted if he had separately been prosecuted for illegal reentry when he

-- 6 of 20 --

UNITED STATES V. VALLE 7
convictions, Valle’s proper offense level with a downward
adjustment for acceptance of responsibility would have been
6,4 with a criminal history category of II, leading to a
corresponding Guidelines range of 1 to 7 months.
At his sentencing hearing, Valle reiterated his objections,
arguing that the Government needed to prove that he was
continuously present in the United States from 2004 to 2017
through clear and convincing evidence, and that it had failed
to do so. The Government, by contrast, agreed with the
calculations in the PSR, asserting that there was “ample
evidence” under the clear and convincing evidence standard
for the district court to find that Valle had commenced the
illegal reentry offense in 2004 and remained in the country
thereafter. The Government contended that “the only
reasonable inference” from the record was that Valle had
remained in the United States from 2004 to 2017. It argued
that he “ha[d] consistently resided in Santa Ana” since he
first entered the country in the 1990s and that he had a
pattern of returning to the United States (and, specifically, to
Santa Ana) after each of his prior removals. In support, the
Government presented evidence that Valle listed Santa Ana
was arrested in 2004, but the five-year statute of limitations for that
hypothetical “found in” date had long since expired by the time he was
found in 2017. See 18 U.S.C. § 3282(a); United States v. Zamudio,
787 F.3d 961, 967 (9th Cir. 2015) (explaining that the statute of
limitations for an illegal reentry crime begins to run when the defendant
is “found in” the United States).
4 Without the extra levels for his prior convictions, Valle would not
have been eligible for the additional 1 level reduction for acceptance of
responsibility that he received under U.S.S.G. § 3E1.1(b), which is
available only to a defendant with an offense level of 16 or greater. In
that instance, his adjusted offense level would have been 11 levels lower
than the PSR’s recommendation, rather than 12.

-- 7 of 20 --

8 UNITED STATES V. VALLE
addresses in 1998, 1999, 2000, and 2004 on forms related to
his prior removals and arrests.5
The Government further argued that Valle had strong
family ties to the United States, including a spouse, a brother
and nieces in California, and three American citizen
children. The Government also pointed out that there was
no evidence that Valle had actually left the United States
since 2004. It was, the Government maintained,
“speculative and counter-intuitive to suppose that, without
being discovered by immigration officials, [Valle] would
voluntarily choose to surrender his long-time residence in
Santa Ana” and abandon his desires to live in the United
States and to be near his family, especially in light of how
difficult it could be to return undetected.
The district court agreed that the Guidelines range
recommended by the PSR (and by the Government) was
appropriate. The court first decided as a legal matter that the
Government was not required to prove that Valle was
continuously in the United States from 2004 to the date of
his arrest in 2017. The court then stated that, if its reading
of the law were incorrect, “[it] would find as a factual matter,
and beyond a reasonable doubt, that Valle remained in the
United States until he was arrested.” The court reasoned:
As the Government demonstrates, there is a
clear pattern of return to the United States
after each removal from 1998 to 2004. There
is a strong inference that [Valle] wished to
remain in the United States, and no evidence
that he ever returned to Mexico after 2004.
5 The forms showed that he had listed Santa Ana as his city of
residence but with at least two different ZIP codes.

-- 8 of 20 --

UNITED STATES V. VALLE 9
He maintained the same address, and had a
family here. These facts support the
inference that he did indeed remain in the
United States.
The court thus imposed a 37-month sentence, to be followed
by one year of supervised release.
II.
When a defendant objects to a district court’s Guidelines
calculation at the time of sentencing, we review the district
court’s legal interpretation of the applicable guideline de
novo and its factual findings for clear error. United States v.
Gasca-Ruiz, 852 F.3d 1167, 1170 (9th Cir. 2017) (en banc).
A finding of fact is clearly erroneous if it is “(1) illogical,
(2) implausible, or (3) without support in inferences that may
be drawn from the facts in the record.” United States v.
Hinkson, 585 F.3d 1247, 1262 (9th Cir. 2009) (en banc)
(quotation marks omitted).
III.
A.
On appeal, the Government does not defend the district
court’s legal conclusion that proof of continuous presence
was not required. That conclusion was indeed erroneous.
See, e.g., United States v. Garcia-Jimenez, 623 F.3d 936,
940–41 (9th Cir. 2010) (“In the district court, the
government bore the burden of proving [the defendant’s]
continuous presence in the United States.”); id. at 941
(reviewing the district court’s determination that the
defendant had never “physically left the United States to
return to Mexico”). We accordingly focus our analysis solely
on the district court’s alternative holding that, as a factual

-- 9 of 20 --

10 UNITED STATES V. VALLE
matter, Valle was continuously present in the United States
from 2004 to 2017.
B.
The burden of proof for a factual finding underlying a
sentencing enhancement depends on the magnitude of the
finding’s effect on the sentencing range. As a general rule,
a preponderance of the evidence standard applies, but the
Government must meet a higher standard—proof by “clear
and convincing evidence”—in cases where there is “an
extremely disproportionate impact on the sentence.” United
States v. Jordan, 256 F.3d 922, 930 (9th Cir. 2001).
We look to the totality of the circumstances to see if that
heightened standard applies. United States v. Pike, 473 F.3d
1053, 1057 (9th Cir. 2007) (citing Jordan, 256 F.3d at 928).
In United States v. Valensia, we surveyed past cases and
extracted several factors that may guide this inquiry.
222 F.3d 1173, 1182 (9th Cir. 2000), vacated and remanded
on other grounds, 532 U.S. 901 (2001). We summarized
these factors in Jordan:
(1) whether the enhanced sentence falls
within the maximum sentence for the crime
alleged in the indictment; (2) whether the
enhanced sentence negates the presumption
of innocence or the prosecution’s burden of
proof for the crime alleged in the indictment;
(3) whether the facts offered in support of the
enhancement create new offenses requiring
separate punishment; (4) whether the
increase in sentence is based on the extent of
a conspiracy; (5) whether the increase in the
number of offense levels is less than or equal
to four; and (6) whether the length of the

-- 10 of 20 --

UNITED STATES V. VALLE 11
enhanced sentence more than doubles the
length of the sentence authorized by the
initial sentencing guideline range in a case
where the defendant would otherwise have
received a relatively short sentence.
Jordan, 256 F.3d at 928 (quotation marks omitted). Both
Jordan and Valensia disregarded the first four factors,
however, and focused entirely on how enhancements
increased both the offense level and the length of the
recommended Guidelines range. Id. at 929; Valensia,
222 F.3d at 1182. More recent cases have also relied on only
these last two factors. See, e.g., United States v. Gonzalez,
492 F.3d 1031, 1039–40 (9th Cir. 2007) (explaining that
“[a]lthough the first four factors are either not particularly
relevant or do not weigh in favor of a heightened standard,
the last two factors are significant” and that “[w]e have
previously invoked the clear and convincing evidence
standard where only the two final factors favor its
application”).6
In United States v. Hopper, 177 F.3d 824 (9th Cir. 1999),
the first case to apply the clear and convincing standard in
6 As we have previously observed, “we have not been a model of
clarity in deciding what analytical framework to employ when
determining whether a disproportionate effect on sentencing may require
the application of a heightened standard of proof.” United States v.
Berger, 587 F.3d 1038, 1048 (9th Cir. 2009). Indeed, it is not entirely
clear how the first three Valensia factors were derived from our decision
in United States v. Restrepo, 946 F.2d 654 (9th Cir. 1991) (en banc),
which Valensia cited as their source, Valensia, 222 F.3d at 1182. We
need not grapple with this question here, however, because our caselaw
makes clear that we must apply the heightened clear and convincing
standard based solely on the large impact on Valle’s Guidelines
calculations as reflected in the fifth and sixth factors.

-- 11 of 20 --

12 UNITED STATES V. VALLE
this sentencing enhancement context, we held that a 7 level
adjustment to a defendant’s offense level, which increased
his sentencing range from 24 to 30 months to 63 to 78
months, satisfied the “extremely disproportionate impact
test” and required clear and convincing evidence of the
adjustment’s predicate facts. Id. at 833. Later, in Jordan,
we held that the higher standard applied because the
contested enhancements increased the offense level by 9 and
more than doubled the sentencing range, raising it from 70
to 87 months to 151 to 188 months. 256 F.3d at 929.
Here, counting Valle’s prior convictions led to an
11 level increase in his offense level and a recommended
Guidelines range of 37 to 46 months rather than 1 to 7
months. Because the application of these enhancements
raised Valle’s offense level by significantly more than 4 and
far more than doubled his sentencing range, see id. at 928,
the Government was required to establish Valle’s continuous
presence by clear and convincing evidence, see id.
The Government contends on appeal that the lower
preponderance standard applies.7 We are not persuaded that
any of the cases the Government cites supports this
contention. In United States v. Harrison-Philpot, 978 F.2d
7 Arguably, the Government forfeited the argument that the lower
standard applied because it conceded the higher standard in the district
court. See Tibble v. Edison Int’l, 843 F.3d 1187, 1193 (9th Cir. 2016)
(en banc) (“Generally, we do not ‘entertain[] arguments on appeal that
were not presented or developed before the district court.’” (alteration in
original) (quoting Visendi v. Bank of Am., N.A., 733 F.3d 863, 869 (9th
Cir. 2013))). But Valle does not make a forfeiture argument in his reply
brief, and in any event we have discretion to overlook forfeiture in
exceptional cases including “when the issue presented is purely one of
law.” Ruiz v. Affinity Logistics Corp., 667 F.3d 1318, 1322 (9th Cir.
2012) (quoting Bolker v. Comm’r, 760 F.2d 1039, 1042 (9th Cir. 1985)).

-- 12 of 20 --

UNITED STATES V. VALLE 13
1520 (9th Cir. 1992), for example, we applied the
preponderance standard but explained that we had
previously “left open the possibility that if a [future] case
involved a severe penalty enhancement, due process might
require heightened procedural protections.” Id. at 1523–24.
This eventually came to pass in Hopper, when we first
applied the clear and convincing evidence standard.
177 F.3d at 833. Later, in United States v. Riley, 335 F.3d
919 (9th Cir. 2003), we emphasized that when “the
combined impact of contested sentencing enhancements is
disproportionate relative to the offense of conviction, the
district court must apply the clear and convincing evidence
standard of proof.” Id. at 925 (citing Jordan, 256 F.3d
at 927–29). We upheld the application of the lower
preponderance standard in Riley only because we concluded
that the impact of the enhancements we considered to be at
issue—which would not have more than doubled the
defendant’s sentencing range—was not significant enough
to apply the heightened standard. Id. at 927.8
8 The Government argues that, under Harrison-Philpot and Riley, a
fact “relat[ing] to the scope of the charged crime”—here, the length of
time that Valle was continuously present—“should not be subject to a
heightened standard of proof.” But we have applied these cases where a
defendant has been convicted for conspiracy or as a participant in a
fraudulent scheme and the extent of the conspiracy or fraudulent scheme
is the basis of the enhanced sentence. See, e.g., United States v. Hymas,
780 F.3d 1285, 1290–93 (9th Cir. 2015) (affirming the use of the
preponderance standard to determine the direct losses stemming from a
wire fraud conviction involving a fraudulent loan, but requiring the use
of the clear and convincing evidence standard for proof of losses that did
not stem from “the loan that was the subject of the conviction”); United
States v. Treadwell, 593 F.3d 990, 1001 (9th Cir. 2010) (citing Riley for
the proposition that “sentencing determinations relating to the extent of
a criminal conspiracy need not be established by clear and convincing
evidence”); Berger, 587 F.3d at 1048–49 (affirming the use of the

-- 13 of 20 --

14 UNITED STATES V. VALLE
C.
Applying the clear and convincing standard, we
conclude that the Government failed to meet its burden of
proving Valle’s continuous presence. The district court’s
factual finding that Valle was in the United States
continuously from his 2004 arrest until his 2017 arrest is
unsupported by any direct evidence in the record.9 See
Jordan, 256 F.3d at 930 (explaining that “the clear and
convincing evidence standard . . . requires that the
government ‘prove [its] case to a higher probability than is
required by’” the preponderance standard (quoting
California ex rel. Cooper v. Mitchell Bros.’ Santa Ana
Theater, 454 U.S. 90, 93 n.6 (1981))).
Both parties argue that United States v. Garcia-Jimenez
governs here. In Garcia-Jimenez, the district court had to
preponderance standard to determine the extent of a fraud conspiracy);
United States v. Armstead, 552 F.3d 769, 777–78 (9th Cir. 2008) (citing
Riley and Harrison-Philpot for the proposition that “[e]nhancements
based on the extent of a conspiracy are ‘on a fundamentally different
plane than’ enhancements based on uncharged or acquitted conduct”
(quoting Riley, 335 F.3d at 926)); United States v. Garro, 517 F.3d 1163,
1168–69 (9th Cir. 2008) (affirming the use of the preponderance
standard to determine the extent of a wire fraud scheme). Harrison-
Philpot’s and Riley’s association with conspiracy is epitomized by the
fourth Valensia factor, which, citing Harrison-Philpot, asks whether “the
increase in sentence [is] based on the extent of a conspiracy.” Valensia,
222 F.3d at 1182. Here, Valle has not been charged with a conspiracy
or as a participant in a fraudulent scheme, so these cases—and the fourth
Valensia factor more generally—are inapposite.
9 We would reach this conclusion regardless of whether Valle
maintained the same street address in Santa Ana from 1998 to 2004. We
therefore need not reach Valle’s argument that he is separately entitled
to relief because the district court misinterpreted the exhibits as showing
that he had lived at “the same address.”

-- 14 of 20 --

UNITED STATES V. VALLE 15
determine whether the defendant commenced his crime of
illegal reentry in April 2007 or April 2009. 623 F.3d at 940–
41. That inquiry “rested entirely on the factual question of
whether [the defendant] ever physically left the United
States to return to Mexico” between those times. Id. at 941.
The government “submitted evidence accounting for [the
defendant’s] presence in the United States for a large portion
of” the two-year period in which it had to prove he was
continuously present, and argued that the court could infer
Garcia-Jimenez had not left during the gaps. Id.
Specifically, the government’s evidence included records
showing that Garcia-Jimenez had been in the custody of the
California Department of Corrections from April to early
August 2007 and then again for an indeterminate period of
time starting in mid-August 2007; that “soon” after his
release from custody, he worked for a community service
program from November 2007 until mid-January 2008; that
he had been arrested again and held in custody for nine days
in mid-June 2008; and that he had worked for the community
service program for a second term from the end of June 2008
until the end of September 2008. Id. The government also
explained why Garcia-Jimenez had no reason to leave the
United States: He had lived here since he was five years old,
had children who were citizens and a fiancée who lived in
the United States, and had returned to the country after each
of two prior deportations. Id. Finally, the government
argued that it was “illogical to assume” Garcia-Jimenez
would voluntarily leave the country while living here
illegally “because traveling to Mexico and returning would
have subjected [him] to the risk of being detected.” Id.
The district court in Garcia-Jimenez applied a
preponderance of the evidence standard and found that
Garcia-Jimenez had not left the United States during the
relevant period. Id. at 939. It suggested, however, that if the

-- 15 of 20 --

16 UNITED STATES V. VALLE
government had faced a higher burden of proof, it might
have ruled for Garcia-Jimenez.10 Id. at 939–40.
On appeal, we held that the district court had not clearly
erred. Id. at 941. We explained that although the
government did not account for Garcia-Jimenez’s presence
at every moment between April 2007 and April 2009, the
government had nevertheless demonstrated continuous
presence by a preponderance of the evidence. Id. at 941–42.
We reasoned that the government had carried its burden
because it had accounted for Garcia-Jimenez’s whereabouts
“for a major portion of the time,” and although it was
“conceivable that [he] could have returned to Mexico at
some point” during the unaccounted-for gaps, the
government had also established that Garcia-Jimenez had no
reason to leave the United States, and had shown that leaving
“would have been illogical.” Id. We gave some additional
weight to the fact that Garcia-Jimenez “offered no evidence
at all to counter the government’s evidence other than
general findings regarding Mexican aliens frequently
crossing the border.” Id. at 942.
The differences between the factual record here and that
in Garcia-Jimenez cause us to conclude that Garcia-Jimenez
supports Valle’s position far more than it supports the
Government’s. First and foremost, there is a substantial
difference in the amount of unaccounted-for time. In
10 In Garcia-Jimenez, the district court added 3 criminal history
points under U.S.S.G. § 4A1.1 based on the date of offense, increasing
his criminal history category from III to IV. 623 F.3d at 939–40. Our
opinion on appeal does not indicate what Garcia-Jimenez’s sentence
would have been if he had been in the lower criminal history category.
But there is no indication that the added criminal history points resulted
in a greater than 4 level increase to his offense level or more than doubled
his sentencing range. Jordan, 256 F.3d at 928.

-- 16 of 20 --

UNITED STATES V. VALLE 17
Garcia-Jimenez, the government’s evidence definitively
proved Garcia-Jimenez’s presence in the United States for
nearly half of the necessary two years, and left holes of no
more than 5 to 6 months. By contrast, here the Government
presented no direct evidence of Valle’s whereabouts for any
of the thirteen years in question. Second, the inference that
Valle had no reason to leave the United States is weaker than
it was in Garcia-Jimenez because Valle came to the United
States in his thirties, rather than as a young child. Valle
therefore plausibly had much stronger ties to Mexico and
presumably more reasons to return for at least some period
of time. Moreover, in Garcia-Jimenez the government only
had to demonstrate continuous presence by a preponderance
of the evidence, in contrast to the heightened standard that
applies here. Indeed, as we pointed out, the district court in
Garcia-Jimenez had noted that “by a standard other than the
preponderance of the evidence . . . defense counsel would
have a much stronger argument.” Id. at 939.
The Government also points to United States v. Romero-
Rendon, 220 F.3d 1159 (9th Cir. 2000), in which we held
that the PSR alone provided sufficient evidence of a prior
conviction to support a sentencing enhancement.11 Id.
at 1163. The Government argues that, here, we can similarly
accept the PSR’s conclusion that Valle was continuously
present as clear and convincing evidence that he did not
leave the country between 2004 and 2017. But in Romero-
Rendon, the PSR was uncontroverted. Id. at 1163, 1165. By
contrast, Valle specifically objected to the continuous
presence findings contained in his PSR, so we have no basis
to conclude that the Government met its burden based on the
11 In Romero-Rendon, we declined to decide the correct standard of
proof because we concluded that the uncontroverted PSR was sufficient
to satisfy the clear and convincing standard. 220 F.3d at 1163.

-- 17 of 20 --

18 UNITED STATES V. VALLE
factual statements in the PSR alone. Furthermore, the
factual issue that the PSR in Romero-Rendon proved (the
nature of the defendant’s prior conviction) was much more
straightforward than the one here, which requires a
significant inferential leap.
Nor are we persuaded by the Government’s contention
that it carried its burden simply because Valle did not present
any actual evidence that he left the United States during the
thirteen-year period in question. It is true that in United
States v. Hernandez-Guerrero, 633 F.3d 933 (9th Cir. 2011),
we held that the absence of any evidence in the record
indicating that the defendant “was anywhere but in the
United States during the relevant time period” supported a
continuous presence finding. Id. at 938. But in Hernandez-
Guerrero, we applied the lower preponderance standard. Id.
The other cases cited by the Government are similarly
unavailing because they too applied that less stringent
standard of proof. See, e.g., United States v. Charlesworth,
217 F.3d 1155, 1160–61 (9th Cir. 2000); United States v.
Marin-Cuevas, 147 F.3d 889, 895 (9th Cir. 1998). Here, the
absence of evidence in the record that Valle was anywhere
else during the relevant time period does not support a
conclusion that the Government has met its burden by clear
and convincing evidence. It is the Government’s burden to
prove continuous presence, not Valle’s burden to prove lack
thereof. See Charlesworth, 217 F.3d at 1158.
Ultimately, because it was the Government’s significant
burden to prove that Valle was continuously present, and it
produced no evidence whatsoever about where he was for
over a decade, the district court clearly erred in concluding
that the Government had sufficiently proven that he
remained in the United States.

-- 18 of 20 --

UNITED STATES V. VALLE 19
D.
Because the district court erred in accepting the 2004
date, it started from the wrong Guidelines range in reaching
its sentence. We therefore must vacate Valle’s sentence and
remand for resentencing. Kimbrough v. United States,
552 U.S. 85, 108 (2007) (noting that “district courts must
treat the Guidelines as the ‘starting point and the initial
benchmark’” (quoting Gall v. United States, 552 U.S. 38, 49
(2007))); United States v. Munoz-Camarena, 631 F.3d 1028,
1030 (9th Cir. 2011) (holding that a “mistake in calculating
the recommended Guidelines sentencing range is a
significant procedural error that requires us to remand for
resentencing”).
Although when remanding for resentencing we usually
do not limit the evidence the district court may consider,
“[w]e may depart from this general rule . . . when ‘there was
a failure of proof after a full inquiry into the factual question
at issue.’” United States v. Espinoza-Morales, 621 F.3d
1141, 1152 (9th Cir. 2010) (quoting United States v.
Matthews, 278 F.3d 880, 886 (9th Cir. 2002) (en banc)).
Here, because the Government failed to carry its burden
despite an extensive factual inquiry below, it is not entitled
to “a second bite at the apple.” Id. We therefore hold that
on remand it may not submit new evidence of Valle’s
whereabouts.
IV.
For the foregoing reasons, we vacate Valle’s sentence
and remand for resentencing based on the Guidelines range
of 1 to 7 months. Because Valle has already been in custody
for the illegal reentry offense for about 20 months, we order
the mandate to be issued forthwith and to be transmitted

-- 19 of 20 --

20 UNITED STATES V. VALLE
without delay to the district court for immediate
resentencing.
VACATED and REMANDED. MANDATE TO
ISSUE FORTHWITH.

-- 20 of 20 --