Ninth Circuit Holds Date of Removal Is An Element of Enhanced Penalties Under 8 U.S.C. § 1326(b) & Must Be Alleged In Indictment & Found By Jury BRD

In what is becoming a semi-regular feature of this blog, here's another Ninth Circuit case that you should be aware of: United States v. Salazar-Lopez, No. 06-50438 (9th Cir. Oct. 24, 2007) (Fisher, Clifton, Fogel, D.J.). There's good and bad in this opinion. The good is that it holds that the date of a removal, or at least the temporal relationship between a removal and a prior conviction, is an element of the enhanced penalties under 8 U.S.C. § 1326(b). That means the fact must be alleged in the indictment and either proved to the jury beyond a reasonable doubt or admitted by the defendant. The bad is that it reviews the Apprendi violation in this context for harmless error, rather than treating it as structural error. Read on for the details.

Salazar's indictment charged him with illegal reentry. It alleged that he had previously been removed from the United States, but it did not allege the date of the removal. At trial, the Government introduced evidence that he had been removed in 2005. After the jury found Salazar guilty, the probation officer prepared a presentence report recommending that Salazar's sentence be enhanced under § 1326(b)(1), because his 2005 removal came after a 2003 felony conviction. Salazar objected, arguing that, under the rule of Apprendi, he was subject to only the un-enhanced penalties found in § 1326(a) because the facts necessary to support the enhancement had not been alleged in the indictment or found by the jury beyond a reasonable doubt. The district court overruled the objection, and sentenced Salazar to twenty-one months' imprisonment and three years' supervised release.

Salazar pressed his Apprendi argument on appeal, and the court agreed with him. It held that

the temporal relationship between Salazar-Lopez’s removal and his previous conviction was a fact that increased the maximum sentence that he faced. As such, the date of the removal, or at least the fact that Salazar-Lopez had been removed after his conviction, should have been alleged in the indictment and proved to the jury. The failure to do so was an Apprendi error.

Unfortunately for Salazar, the court then took a wrong turn when it came to the nature of the error. The court held that this was not structural error, and was instead subject to harmless error review. It went on to hold that the error was harmless because the evidence of the 2005 removal was "overwhelming and uncontroverted."

As far as I know, there is no Fifth Circuit precedent directly on point on the date-of-removal/temporal-relationship-as-element issue. It does come up (such as when there's a prior conviction sandwiched between two removals, and the indictment alleges the earlier one), so Salazar-Lopez gives you some case law to cite on that point.

As for the harmless-vs.-structural error issue, I don't know off the top of my head what the state of Fifth Circuit law is on this point. But according to the Ninth Circuit Blog, Salazar-Lopez's holding on this point directly conflicts with Eleventh Circuit case law. (Not to mention the fact that Salazar-Lopez's analysis of the issue doesn't make any sense.) So as the 9CB says, look for a cert petition on this issue.