United States v. Victor Garcia , 599 F. App'x 775 ( 2015 )

FILED
NOT FOR PUBLICATION APR 15 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 14-50166
Plaintiff - Appellee, D.C. No. 3:08-cr-04380-GT-1
v.
MEMORANDUM*
VICTOR DANIEL GARCIA, AKA Victor
Juan Lopez,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
Gordon Thompson, Senior District Judge, Presiding
Argued and submitted April 6, 2015
Pasadena California
Before: SILVERMAN and BEA, Circuit Judges and DONATO,** District Judge.
Victor Garcia appeals the district court’s revocation of supervised release
following a new conviction for misdemeanor illegal entry in violation of 8 U.S.C.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable James Donato, District Judge for the U.S. District
Court for the Northern District of California, sitting by designation.
§ 1325(a). We have jurisdiction pursuant to 28 U.S.C. § 1291, reverse the
revocation of supervised release, vacate, and remand.
Garcia argues that there was insufficient evidence to establish that he was
found in the United States in violation of 8 U.S.C. § 1326(a). To prove that Garcia
was found after deportation in violation of § 1326(a) and his supervised release
conditions, the government had to prove by a preponderance of the evidence that
he entered free from official restraint. United States v. Muniz-Jaquez, 718 F.3d
1180, 1182-83 (9th Cir. 2013); United States v. King, 608 F.3d 1122, 1129 (9th
Cir. 2010). Garcia argues, and the government does not dispute, that the district
court erred when it considered the probable cause statement from the underlying §
1325(a) criminal complaint to decide official restraint. We agree. The district
court improperly considered the document over the defense objections without
considering whether the government could show good cause for not producing the
witnesses. United States v. Perez, 526 F.3d 543, 548 (9th Cir. 2008).
Garcia’s conviction under 8 U.S.C. § 1325(a) does not establish by a
preponderance of the evidence that Garcia was free from official restraint. Garcia
pleaded guilty to a criminal complaint charging him with violating 8 U.S.C. §
1325(a)(1) and (a)(2). But only an (a)(1) violation would establish Garcia was free
from official restraint; an (a)(2) violation does not have the same element. See
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United States v. Oscar, 496 F.2d 492, 493-94 (9th Cir. 1974). And Garcia’s guilty
to plea to an (a)(1) violation and an (a)(2) violation, in the conjunctive, establishes
only that Garcia violated (a)(1) or (a)(2). C.f. United States v. Lee, 704 F.3d 785,
789 (9th Cir. 2012) (rejecting the government’s argument that the defendant’s
“plea to the conjunctively phrased charging document establishes that he pled
guilty to all of the conduct charged.”); Malta-Espinoza v. Gonzales, 478 F.3d 1080,
1082-83 (9th Cir. 2007) (holding that a guilty plea to a complaint charging
conjunctively multiple violations of a statute does not establish the defendant was
guilty under a specific sub-section of the statute). Without more evidence, the
government could not establish by a preponderance of the evidence that Garcia was
convicted under (a)(1).
There is insufficient evidence in the record to establish that Garcia was
found in violation of 8 U.S.C. § 1326(a). We reverse the revocation of supervised
release, vacate the sentence, and remand.
REVERSED, VACATED, AND REMANDED.
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