Oral argument — United States v. Victor Ramirez Martinez

Good afternoon and may it please the court, I'm James Laughlin on behalf of the appellant Victor Ramirez Martinez and with the court's permission I'd like to reserve a few minutes of my time for rebuttal The evidence presented in Mr. Ramirez's trial was insufficient to support his conviction I recognize that this issue should have been raised the first appeal and I apologize for not doing so But as I explained in the brief the court does have the discretion to reach this issue and it should exercise that discretion here After all the insufficiency Issue hinges entirely on a legal issue and that is when whether an alien is found for purposes of section 1326 when he simply obtains a state driver's license also Assuming that that question can be raised in this second appeal Wasn't raised Originally at the time of trial it seems to me that your entire theory had nothing really to do with the issue That you're now asking us to decide but rather that he had never been deported. That was the theory of the case so Even assuming that there's not a problem with not raising it in the first appeal. Why is this a proper subject for us? Well, Your Honor, you are correct that the only disputed issue factually trial was that other issue that you mentioned in this Specific issue was not argued to the jury however, there was a Timely rule 29 motion made which I believe preserves all of the insufficiency issues And therefore the court's regular standard review would apply However, the court really doesn't need to to go there because as the court noted in a case from last year Cruz drawing on some earlier cases the case The issue would still be reviewed for plain error and the test for the test for insufficient evidence is so stringent in and of itself That the court said we can't really contemplate when there's going to be a case where there's insufficient evidence It doesn't amount to plain error Why why why isn't this in a sense invited error because it was more than just not raised I mean, you're you said in or you whoever it was said in the opening statement That the only issue in this case that's in dispute is whether the person was physically removed There was really no reason for Anybody to bring in evidence or make arguments at trial that might have Cured this problem if it had been timely raised So the government's indictment alleged a founding date 14th 2004 14 2004, but what it proved Of July 2007 and that's what it argued correct. So it's still it To me. I mean, I don't know how I'm gonna come out on this case, but it seems to me that the question of What does found in? mean was not clearly understood either by the person who drafted the indictment or the DHS agent who testified or the lawyer who tried the case and I'm not sure what definition of found in Everybody was relying on in this trial. This seems to be first of all, it's a new argument. But secondly It seems to me that we're both ships passing in the night as to what date was really Arguing presented to the jury is the found in date Well, I agree with your honor that this case has been muddled from the get-go and And in fact, it's it seems odd to me go if you go back and look if you look at exhibit trial exhibit 20 Which is in the government's supplemental exhibits of record. That's the printout of the state driver's license. Apparently they got that on March 6 2007 in April they obtain a indictment for him For 1326 offense using the date he got the driver's license July 2004 as the date of the offense Then they go out looking for him They don't the INS or the Bice agents don't actually pick him up and find him Until a couple of months after she's been indicted which to me seems like putting the cart before the horse given this court's case law that That a 1326 found in offense does not crystallize in other words. It's not doesn't and it's a continuing offense that ends when the person is Taken by the immigration service. The court does say this is a continuing offense, but I think in Ruelas Aguillon the case tried to the court tried to kind of parse out exactly what that means in this context Let me distinguish it from a different kind of continuing offense when somebody escapes from jail as soon as they get out of jail They've escaped and their escape offense continues It's over it's complete, but it continues as long as they're out and they're not recovered here I think what the court was saying in Ruelas Aragon is and if you look back to a case before that Hernandez where the court recognized that Congress has not said that simply being in this country Without permission is a crime. They need to be found. And so in Ruelas what the court said was The crime crystallizes with official discovery. And I think that what that means is it then relates back to the last reentry But I don't think it's the same thing as to say that the crime begins and is prosecutable at this federal state is is it your contention that the the founding date is an element of the offense the date not the fact of being found in but the date of being found in is an element of the offense and If so, is that consistent with our case law? No, I would not say that it's an element and I think this court addressed that very issue and I'm going to butcher the name To send to send him a jimmy In that case what the course because that's what the government made the argument in that case and what I think the court said was That may be true. It's not an element, but it's irrelevant because there's still the constitutional standards of proper notice and double jeopardy protections That come into play and for put in putting time and place allegations and in the indictment and When you don't have a date that's reasonably near the date alleged in the indictment Then these problems come into play and then as the court recognized in that case you have a fatal variance Wanted to ask you also is your argument really sufficient Sufficiency of the evidence or fatal variance because I understand one sort of structural and one I Mean, I know one would require us to But both require us to reverse the conviction if we would agree with you Correct your honor and I too was confused about exactly how you go About this and that's why I followed the the path that the court took in to send a hint Jenny Which was to say they viewed it as a sufficiency of the evidence sufficiency of the evidence issue They found that because of the fatal variance the evidence was not sufficient and therefore they reversed with it orders to enter a judgment Correct the variance it was It was not found until March of 2000 Let's say he was charged with having been found in Excuse me in July of 2007 based on the fact That he applied for a driver's license in July of 2004 Correct And Correct and Because of that variance the government didn't present sufficient evidence on the charge that was actually alleged to indictment Yeah, because they had to prove something reasonably near that date and then I believe cast castroline did the same thing they they they looked at it as if We're going to look at it at the issue as a sufficiency of the evidence Sufficient the evidence framework and if there's conduct that's outside of the range of things that are reasonably near then there's not sufficient evidence Well, if we were to view it as a question of variance, is that a waivable problem? I'm sorry waverable. Yes. It was not raised at the trial court in In time for it to be addressed by the evidence I don't think that that would be I think that would be reviewed for for plain error I don't think it might it may be for fit a bullet, but I'm structural. That's I mean, am I under misconception there? that the Structural error. Yes, and that's why I think it would satisfy a under plain error standard it's it's it's because of the the fatal variance that we have double jeopardy problems that kind of That are the reason why relief needs to be granted of some sort As a practical matter, I think no one thought about what does found in mean during the trial because it only became important at the sentencing it became an issue at the sentencing because the earlier date would Bring in the extra sentencing enhancement and the later date wouldn't so that's when people start thinking about What is the correct found in date? So it came to us and and we said hmm, but for purposes of sentencing What is the correct? Found in date and so we sent it back to the district court to I thought When we send something back on an open record to admit new evidence was he found in in In 2007 or was he but what's the evidence that he was found in 2007 versus the evidence he was found in 2004 and then you would apply a preponderance of the evidence standard to that and it seems to me the only thing that happened at the district court level Was that the government talked the probation officer into changing the date and the sentencing recommendation? Am I correct that? The judge did not take any new evidence on what and the found in date No, your honor That is correct the government Convinced the probation office to adopt the same argument made here the last time which was the date and the indictment is dispositive So you don't need to look any further And then the court adopted that Interestingly, if you look at both the addendum to the PSR and when the district judge was talking about that They do that in language that says that the offense was complete on the date he got his driver's license in July 14th 2004 Which to me says we now for the first time time this court has never said that you have a complete Found in 1326 offense without any official discovery whatsoever So there's this other case. I can't remember which one it is, but state officials took him into custody and that was the founding date even though the Defendant had not been taken to the DHS or ICE immigration officials, so they use the earlier date, but I was thinking that maybe that was That's an okay legal distinction because that's law enforcement and when the law enforcement Agency finds them they're gonna find that he does he didn't come here with permission from the Attorney General What It seems that we're being asked to hold is that mere contact with the government satisfied satisfies the requirement of Found in for purposes of the statute so it could be filing your taxes Getting a library card getting a library card Going to the county hospital perhaps even every day you get your mail delivered by a federal post officer at your house I just don't think that can be the line Correct there's lots of interactions that aliens have with government services on a daily basis and Once you go down that road of multiple findings or what is in essence a single offense Then I could I think you have lots of double jeopardy problems because it's really unclear then if somebody gets convicted I don't understand why that would be the case But why did I understand your other arguments, but the double jeopardy argument we do have cases that say that the that it is illegal that founding offense commences with the illegal entry and ends with the ultimate apprehension at the end of the road And we also have cases that say that when there's a single continuing course of conduct you can't be charged with more than one episode So under those settled principles, I don't understand why there's a double jeopardy problem there may be other problems But I don't really understand why you think there's a double jeopardy problem Well, let me use this case as an example your honor because especially when you have a three-year difference like you do now The government contends that they properly charged him with being found when he got his driver's license in July 2004 They also say in the brief if they wanted to they could have just as easily charged him with being found in July of 2007 when I say but not well, but not well, I don't they don't say that both but what they also acknowledges that If he had left the country in the interim, there were two different offenses Well, that's but that's a very different situation If a person keeps leaving and coming back and they're found each time they have committed even under your theory but the problem is when the government does what it does here and and That it alleges and the true found in date that ends the offense which is official discovery I Think it has to be incumbent upon them to show that it then becomes their burden to show that there was no intervening leaving of The country because otherwise it isn't part of one single arrest that culminates and crystallizes in the official discovery That's another question. I have is there any evidence in the record one way or another as to whether or not? Your client left the country and came back during that period of time No, your honor In fact, that was the majority of the issues we were discussing the last time we were here Was it the absence of such evidence at least for the five-year period of like sorry the five-month period from February to July? 2007 Judge Walter Did he? Hold an evidentiary hearing where you would be free to introduce This sort of evidence whether he came and left in between Well, we asked for an opportunity to have the kind of hearing that we thought was contemplated by this court's remand, which was to for the government to put forth whatever evidence they could to show that my client was here continuously for the five months preceding the July 2007 found in date And instead the government's first bullet in its gun was to argue that that's all irrelevant because the only date that matters is the Indictment date and both the probation office and the government thought that was the end of it I'm sorry. I stand way over my time. I'd be happy asking answer any more questions, but otherwise I will submit for now And the indictment date April of 2007 So a couple months before he was found by vice-agent and he was turned over to the authorities Yes, he showed up voluntarily at the Long Beach Police Department on July 9th 2007 So the Only Evidence the government had Before Judge Walters was that he applied for a driver's license in 2004 correct and That when you Go on and get your driver's license or you have any official contact with with any governmental agency That's the date that you're found in that appears to be what the government the road the government's going down now, yes suppose that It was 2009 When the INS agent found out that he made contact with the DMV in July for with the statute of run I Don't think so because I don't think I don't think I don't think they could have gone out and You would not make that argument No, I don't think so because I don't think that counts as a proper found in date Not that I've noticed and I've read the court's several cases of trying to parse out what that means and none of its cited to legislative history Something to Thank you Good afternoon, your honors. May it please the court Jeff Mitchell on behalf of the United States I'd like to start off by talking about found in date The government charged and proved that the defendant was here in 2004 that was our theory and that was the evidence that we introduced The standard is that the legal standard that he was here doesn't he have to be found in Yes, your honor. And that's what the government introduced as evidence. So you're saying that mere contact with the DMV is Tantamount to meeting the statutory requirement of found in that's your legal position Our position is that the defendant can be found by anyone the statute itself Find the defendant or that did the defendant Go to the DMV and apply for something which he was given. Well, what did the DMV have any idea that he? Shouldn't be here and so they could find him to be here. Well, I think the question is Was he found in the United States not was he or who was he found by? Well, I don't think that's relevant for the question here in this case. He was found by the DMV, but the statute says It's found by the DMV. Yes, your honor when he posed for his picture and when he had his fingerprint taken at The Department of Motor Vehicles, he was then able to have been found now The the statute itself says that the defendant violates their able to have been found or he was found I'm sorry, what was the question? You said he was once he had his fingerprints taken. He was able to be found. That's correct Is that equal? In this case it does you heard the special agent Paul Milano was able to query the databases and Learned that the defendant was in the United States on July 14th 2004 Okay, but does that? What if he had left after that? Well, that would have ended the offense But that doesn't mean that it granted him immunity and I think the United States versus rule us again touched upon this it held that if a defendant Or a defendant does not avoid a 13 6 13 26 crime by failing to complete it so in that case completing it meant apprehension, so a defendant doesn't avoid the crime by Leaving early. He's still illegally re-entered. He committed the crime and No, he if we can prove that he was found here we submit that he did commit the crime We don't There seems to be no statutory History legislative history here and it says To be found to found to be found it is to to find is to come upon So it seems like the ordinary meaning would would fit more with what happened. Maybe even When your agent discovered the July 14, although I'm not sure of that but when your agent came upon the defendant Would seem to fit with the ordinary meaning of that language Well, I believe that once the agent learned of the defendant or had reasonable Certainty that he had come back that only triggers the statute of limitations The crime itself had already been committed and I think the case law We know it wasn't crystallized in the case law Well, I I think crystallized I think in that court was merely stating the obvious that you you can't actually Charge him until you found him in that sense, but I think with the case law that's out here. We have cases that indicate that you can be found by state police officers a Parole officer and then Jimenez Borjas came out and said that it doesn't matter who Finds him in it. The court actually emphasized the word who but this court has gotten even further Conceptually Conceptually and as a policy matter, I'm having a problem with your DMV argument Because the DMV didn't find Ramirez Ramirez went to the DMV. So it's contrary to the ordinary language The other part of it the policy part of it is I mean, obviously we don't want People who haven't followed the proper procedures to be in this country, but once they are It's probably a good idea if they get their driver's license and they pay their taxes and they do all these things I mean one it might lead to their being found To it means that they're at least trying to follow the rules of the United States That's something we would want to promote not discourage So I'm just having a lot of problems with your standing by that argument I think there's other ways you might be able to prevail that I Just can't I see it's like I can't follow how you can say the DMV found Ramirez Well, I recently are brief I like to touch upon the policy grounds if we hold that only immigration authorities can find the defendant It would seem that like any law enforcement In fact, we do have the one case that talks about he was in state custody And anytime you come to contact with law enforcement You're found I mean obviously you're found by somebody that has the authority and ability to enforce the laws Against you to take you into custody That's different than you availing yourself of a government service or Trying to comply with the rules of the United States Well local law enforcement are not able to enforce the immigration law They are under certain circumstances where they 289s or whatever they are I'm not familiar with those but they don't local police departments can get exemptions to Actually, I mean look at Arizona for example My understanding is that local law enforcement does not usually have access to the alien files Well, they don't generally but they can and and they can also Refer they can pick up somebody and Legally or not well also in Guzman Bruno this court held that the defendant was still found when he Showed up at his state parole officer in 1990 He was committed in defense both at that time and when he was apprehended by the local law under your theory could I Mean what's what's interesting about the statute is it's in the passive voice and that's what I think led to the decision that it doesn't matter who finds because The crime is an alien who is at any time found And it leaves open by home. Let's suppose that an alien publishes a full-page ad in the local papers saying I live in this community at such-and-such an address and I'm very unhappy about the potholes on my street And I invite everybody to my house on Thursday for a discussion on how we can fix the potholes There's no contact with government at all in my hypothetical Could the date of that ad that says I'm here At such-and-such an address in the United States form the basis of a found-in date If not, why not I Think it's a question of fact and that's something for a jury to decide I think as just a question of law that case law has been very broad and said that it doesn't matter who finds him So, you know based on the case law, we know that non-immigration officials can find somebody but my question is Why can't it just be proof of the fact that the person actually is Found by anyone to be in the United States. Well, the government would agree with that. It's We believe it's irrelevant who finds him. The only question is what is he? Well, the proof would be difficult that the defendant was actually the person who subscribed there but that would still be a question of fact Well, then the government would put that evidence before a jury and a jury would decide if that's sufficient to To prove that it was really him. And if he was really here, but the government's position is it doesn't matter who finds him Was he found to be in Well, this defendant was one that if he did come back to the United States that it would be a criminal offense but also in the United States versus I think was a y'all the court 14th Of 2001 for for for you haven't found on that day, but But what is the what is the indictment charges him with being found in? July of 2007 I'm sorry. I believe the indictment says 2004 And that was the evidence that we introduced at trial the 2007 date of his apprehension was never introduced at trial During when I was laying foundation for his fingerprint card. I indicated that the fingerprint card was made on July 10th 2007 the day after he was apprehended But the government's theory was that he was found when he was when he applied for the driver's license now during the closing argument the government indicated that He was found in long He was arrested on July 9th 2007 Yes, your honor and you argued that he was found in the United States No, I didn't in the closing arguments Indicated that I believe my exact words were that plus he was found in Long Beach and I want to emphasize the words plus here because What I was attempting to show was that the fact that he was found in Long Beach merely Cooperates the fact that it was him who applied this is on excerpt of record page 245 and It cooperates the fact that he remained here undetected Until he applied for the driver's license and that was just merely a few lines above and the fact that this element was uncontested but the jury instructions a few minutes later the court read the indictment to the to the jury with the 2004 date and Instructed the jury that the government had to prove beyond a reasonable doubt that the events occurred reasonably near the date in the indictment 2004 and at most this would be a I believe it a non-fatal variance to be fatal We have to show that it affected his substantial rights and he was prejudiced and for prejudice I think there's two things to look at one the conviction himself and then the second the sentencing for the conviction itself, I believe the question would be if 2004 is the wrong date and 2007 is the correct date that we should have charged would the outcome have been different if we charge 2007 I think that's sort of the middle ground that I'm kind of coming to is that You did argue. I mean you can nitpick now words like plus or whatever But there was evidence by the FD FBI agent or the ICE agent. He testified he found him In Long Beach when he voluntarily came in and after having learned of the DMV license application And then you argued that that's when he was found in I know you're now equivalent with the word plus or minus But let's just set that aside for a second for purposes of the conviction We can uphold the conviction because the only reason That this is important at all is for purposes of the sentence enhancement and That's the reason we sent it back the first time was because He if in fact you There's a non-fatal variance. You proved that he was found in July 17. I mean July 2007 That's fine. It's not prejudicial He was found he clearly found that date under all of our law. We don't have to create any new law and That for purpose of the sentence he doesn't get the enhancement To me that seems like a reasonable way to look at this case For the sentencing aspect of the prejudice would only occur if the government can't prove that he was here continuously between 2004 You never proved that and now I don't know did you oppose the request for an evidentiary hearing upon remand? There was no request for an evidentiary here. There was a resentencing Right, but we sent it back on an open record My understanding of an open record is that you're allowed to introduce new evidence You never introduced evidence and it's your burden that he was here continuously And that's correct, okay, so what I'm saying is you didn't meet your burden on The sentencing so didn't didn't he concede that point? I guess it's my question to you while you're answering judge ward laws when his counsel said that their theory of the case is That he has lived continuously in the United States since March of 1995 without ever leaving Yes, your honor and we did introduce evidence at trial that the defendant Admitted that he had never left the United States between 1995 and 2007 and that's been our whole theory of the case that he was here continuously I'm sorry. I was reading from page 82 of the transcript The defense counsel I'm Sorry, your question was your honor. No, I was trying to figure out what so the argument now keeps changing the argument now is that you didn't have to put on evidence that he was continuously here because I Don't know if it's your argument. It's what judge Graber answered my question with that you're saying now that there was a concession or well, I Want that he was here continuously we introduced evidence of his continual stay It was his in addition to his theory at trial and his statements I believe during the first trial There's also letters from his family Coworkers indicating that he had never left here There was no evidence in the record that he had ever left that he was he was always here continuously And now at trial when we instruct juries about what is reasonable doubt we tell them that it's not based purely on Speculation but here at the sentencing when there's a lower standard. That's exactly what defense is doing There is no evidence to suggest that he ever left and their argument is based purely on speculation The government introduced evidence of his continual presence But in addition to that, we argued that he was charged and convicted with the 2004 offense And therefore the 15-year time limit for the sentencing purposes Starts from the 2004 and then works backwards when you when you determined In the indictment that the critical date was July 14 2004 He was he was He was actually Picked up in 2007 That's correct So you had that date So once you put that date You know, I wasn't that you would say who charged it. I don't care who did it. Why didn't your office do it? Your honor, I can't speculate on why they did or why they did not They're not very careful Well, you're on the way. They draft these indictments or or maybe they had in mind that if we make it 2004 instead of 2007 we can nail it for Another three points and send them away for a long long time. Well, you're on this isn't a question of innocence He's conceded that he was here in 2004 and the indictment was just holding I mean, it's true. If you'd have made it July or whatever the day was 17 2007 we probably wouldn't even be here. Well, but then we would say right I Believe that is true. So why did you why did your office put that in? I Didn't nail them but with those extra three points, I believe would be to hold them accountable reach out to all these cockamamie theories that you're found if you go get a license or you're found if you you get a you go to the to the pond and get a license for your dog or or I Don't know Ticket You have to go through all of that, you know, you do something that's clean and Understandable and But then we would be rewarding defendants for successfully evading law enforcement and I don't think that's the message we want to send but even on Person has appointed, you know, I I find appealing because We're supposed to give fair notice of what a criminal act is and The crimes crystallized when you're found so You have people here. We all know there's many many people here who are undocumented so They have no certainty If we accept your interpretation a lot, they have no certainty as to what it would mean to Make up a violation of that found in provision of 1326 when you could have charged him on entry re-entered That'd be a lot easier than the found in but this is what my theory is. I don't think it was malicious I think Maybe this is still the practice at the US Attorney's Office that you take the brand new lawyers and you put them in the indictment section That is not the practice right now right now, but it was At this time, no, it wasn't. Okay. I remember when that was the case and the indictments were constantly being superseded That is my understanding as well That we currently do not have a section specifically for New a USA's who craft indictments at the present time and also at the time when the indictment was drafted It was drafted by a senior section a USA But do you understand my Yes, your honor My you understand my point about certainty. I mean, how would you address that your honor? I believe there is certainty I believe that every one of them Realizes after they've received that notice when they are deported that tells them that if they come back That they are committing a criminal offense That's their notice and they know that at any point if they're stopped and they're found by immigration that they will be charged eventually and Every one of them I think Yes, and that is when the statute of limitation ends and that is when The offense ends but as Jimenez Borjas says it doesn't matter who finds him Yes, and I think the difference that we're having here is The government is focusing on that The defendant was found to be in the United States on a particular day But you're adding words to the statute well found in the United States And this court understandably is focusing on who was he found by? To do something to find somebody Well, I don't think it has to be an active finding of him I mean, I don't know what to go by other since it's not defined in the statute. There's no Legislative history that shines a new light. So you look at the ordinary meaning of the statute And it has an active kind of component Well, I would submit that Jimenez Borjas says that it doesn't have to be an active pursuit or an active found by immigration he just happened to have been caught and arrested and convicted by local police officers and After that, he was then identified by immigration It's not the by but there's still the found part Yes I Think is the government's position. Is that if we can prove that he was here at any point After the time that he illegally reentered up until when he was either apprehended by immigration or voluntary Departed if we can prove that he was here then we have found him In Which way going back retroactively I Think all continuing offenses do that whether it's conspiracy Whether it's a scheme to defraud or escape. It's a continuing offense If you have a scheme to defraud Yeah, but see this has in other words if you have a scheme to defraud You're a crook and this goes on and on and on and on and on, you know, that's That's one thing but and you've got that Criminal intent, you know I Mean whether you're here legally or illegally You're entitled to the protection of the Constitution Yes, sir Oh This It's trading People I More severely There's a class Then we treat other people and I think it's it's it's discriminatory Because that's what it's focused. We're focusing on them I want to make life hard for them. I want to make life hard for their children so we can kick them out and just let the kids wander the streets and And this is an example of it They send their kids to a public school. Is that found in? Yeah, they go there register. And what if what if? What if? Yeah, send the kids to school and and they and And a child is an outstanding person and they write a little thing in there about the parents and how the parents have supported the kids and all found in Under the case law. I would imagine it would be yes, although I can't imagine anyone charging that but The cases have Well, you're on this was somebody who was targeted specifically because he was a former gang member with prior convictions And he was deported now There was a special task force that was created to search for these prior gang members To determine if they had come back and we've only charged the ones who have aggravated felonies But going back to your honor's earlier concern with just the offense itself I think there was a case that kind of talked about this in context I believe it was the United States versus I'm gonna butcher the name, but it was a Yala which I've cited in my brief Ayala a Y a L a a yellow. Yes And in that case there was a discussion of a similar argument that a defendant made he argued It was a vagueness argument to the 1326 offense and he argued that the 1326 statute is a status offense and that there is no actus reis So therefore he is unable to curb his conduct to conform to the law But this court rejected that argument and said there actually is an act He can choose not to illegally reenter and if he has already come back he can voluntarily leave I Am gonna have to review the record on this continuous on the evidence on the continuous thing And I don't know either of you have any more questions, but I definitely want to ask the defense attorney about that Thank you I Think we've met I used to be partners with Michael Lightfoot and I think we've met at a couple of his Associations Yes Yes I'm sorry, Your Honor. Do you have a question? Alright, so how many years has he served and how much time does this enhancement Add to what he's serving As Of now he's been in custody For about 33 months, which would be equal to a 39 month sentence given good time credits His with he got a 92 month sentence, which was the low end of the applicable range With the three criminal history points that were challenged at the first appeal and again here without those three criminal history points he would drop down a range and the Advisor sent to range will be 77 to 96 months So theoretically he could receive the same sentence, but he might not Well, your honor I know one of the issues the courts gonna have to confront if it decides to remand this for any reasons whether should go Back to the same judge as I pointed out judge Walter actually set on the record No matter what the Court of Appeals does when it comes back to me. I'm gonna impose a 92 month sentence Well, you know we see that Frequently and it's not necessarily recalcitrance, it's sometimes intended for judicial economy because if there's a question if let's say there's a question about a particular Whether something should be two points less or more Oftentimes the trial judge will say look Here's the sentence that I think is the right sentence and here are all the reasons for it And if I have this range, it's in the middle of the range if I'm wrong about that and it's this range I would still give the same sentence because I think it's the right sentence it is there anything wrong with that I Think that particularly in this context it does Raise issues particularly in light of the Supreme Court and this courts Admonition to trial judges that the first step is to accurately correct accurately calculate the guideline range and keep that in mind as a starting point to just to then say that No matter what that guideline range ends up to be 92 seems to be the number I'm going to go with I'll ask the question. I think was on judge Wardlaw's mind in the defense opening statement on excerpt 82 The following is said since March of 1995 my client has remained in the United States. He was never deported He has lived here continuously contrary to the government's allegations in this case So it seemed to me that the whole I mean and the whole argument was he was never ever deported so he's been here continuously to the moment of this trial from 1995 Is it still open to you to now say well, it's theoretically possible that he wasn't here from 2004 to 2007 Yes, it is your honor I think so in fact the evidence that the government is talking about now is exactly there's no difference in the evidence that he brought Up during the first appeal so that what we're talking about is the opening statement and some letters that were submitted during sensing about my clients Employment and school history and dealing first with the statement of a trial counsel and opening statement first of all that's not evidence and Second I think it may be a concession for the purpose of sentencing But I also think that even if that were the case I think it had to be viewed in context with the what those words in context were all about was He was here continuously. He was never deported by he's never put across the border by the INS Which is what our defense is in this trial It didn't speak in the broader sense of and he's never stepped a foot out of this country for a day during That period or and certainly nothing about that statement This Related specifically to the time period of issues But a reasonable fact finder given that what was there could conclude that he had not left between 2004 and 2007 Isn't that also the case? I don't think so your honor I think that would be pure speculation and even in this court's recent decision in Neville's which kind of Discussed the importance of looking at evidence in the light most favorable to the government It did recognize that it's the case law that says that speculation isn't enough to satisfy sufficient evidence Is still good law and I think what you have here is Just the most you can do is you can assume like yeah, he probably didn't never went across the border But there's no reason to believe that he didn't do that. Let me ask you one one more question and then We certainly have kept you a long time. But is it your theory that the That whoever finds the defendant Even though the statute is in the passive has to be somehow connected with the government in other words let's say a newspaper reporter goes through their community and publishes a list of names and addresses of everyone who is Living in the community who is an illegal alien their expose of the week Can Can the date of that publication if the facts can be proved to be true? Form the basis of a found in allegation or does it have to be the government? That initially finds the person I would say the answer is no that cannot be why not under the statutory terms because I think and this is one of the points I want to address about what the Government council said one of his last things said before sitting down which was saying that if we show that he was here During the relevant period that means he was found and those are two completely different things should Even if you even if your honors scenario were true I mean that well knowingly remains but discovered found is often we say Something was found or it was discovered, but it's discovered that the person has knowingly remained after entry but discovered by who? I Mean I mean I mean perhaps if you're on one step further and said somebody in the INS read that paper and on that day They discovered him. We're getting a little closer to what might be allowable, but I think that To just say that Being found in some general sense that happens every day every time my client went back to his wife and his mother They found him here in the United States on that day So there has to be some kind of official discovery I think that this court's case law suggesting that official because we're dealing with an immigration statute official INS discovery I think is what's required. I understand your honors position that perhaps other law enforcement Encounters might also satisfy that in this case. It really does make a difference because it's a crime, right? I mean, so the nexus would be That someone who could make sure that crime is being prosecuted or in the laws being enforced would be Would be where this where you draw the line I don't know if we have to draw that line in this case I mean we could certainly say Getting a driver's license is not found in without drawing the line. Does it have to be? Is that so that is that is not an active act by the DMV. It's an active act by Ramirez Correct, and I think that also go all the way to either one of your positions to decide this case. I Because that's exactly what happened in that case July 2004 Right It's You mean the nature of the offense, yeah Sale and transfer of controlled substance. It's on page 55 of the sealed excess of record and which is paid paragraph 35 of the presentation 1970 so it would be about 20 Until he checked himself in to the police station 17 17. Yes As far as we know during that entire time There's no other Record Unfortunately, your honor there are the pre-sentence reports lays out other convictions and arrests during that intervening time But the one that that was going to add the one that Added the extra three points That would have been over with that 15 years would have passed The 15-year period would have started to run on February 5th 1992 and it was paroled in that earlier case. So that was the last time he was in custody on that 1992 so that would have They would have gone by And seven somewhere in there, correct And how old was he when he came to this country After he so between 2004 and 2007 Was he arrested for any crimes during that I don't think there are any arrests or Certainly convictions during that time His latest conviction is 2003 and his latest arrest was October 2003. They didn't need him to a conviction So Why didn't they Was that was was he deported in 2003 No, I don't believe he was Well, and that's and that's why I think your honor I mean this courts case law that talks about being found by immigration authorities It actually says being found and identified by immigration authorities And I certainly understand like your honor says many local police stations are now, you know Taking it upon themselves to identify aliens But they don't always do that And so even if they're found in that I have him and I have been fingerprinted if they haven't identified him as an alien I still think it's questionable as to whether or not that could be Qualify as being found for 1326 I don't know why he wasn't deported in 2003 Found guilty of this crime in 2003 Well, actually as the court said and recently in Cruz Gramaccio when they They mentioned that He had the defendant had sustained two DUI arrests before he was found by INS Officials which means that they were granted the issue wasn't put squarely before them But they were clearly thinking that those prior arrests were not found in dates It was only when the INS officer caught up to him to me that would be Arrested for DUI would be found in because he was arrested. They did something they found him You know, you got the Controlled substance 1992 he had a second-degree robbery And this is all the pages 55 and 57 Driving under the influence Driving with a suspended license Misdemeanor resisting arrest and Another misdemeanor resisting arrest. I Thought there was a domestic violence, but was that just a complaint that was just that was just a complaint in arrest that didn't Where did he live? He lived in an area his driver's license for Wilmington, which is an area around Long Beach. It's not part of All Thank you council Okay