United States v. Esparza-Gonzalez ( 2005 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 04-10267
Plaintiff-Appellee,
v.  D.C. No.
CR-03-00226-HDM
OSBALDO ESPARZA-GONZALEZ,
OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the District of Nevada
Howard D. McKibben, District Judge, Presiding
Argued and Submitted
February 14, 2005—San Francisco, California
Filed September 6, 2005
Before: Dorothy W. Nelson, William A. Fletcher, and
Raymond C. Fisher, Circuit Judges.
Opinion by Judge D.W. Nelson
12321
UNITED STATES v. ESPARZA-GONZALEZ 12325
COUNSEL
Cynthia S. Hahn (argued and briefed) and Michael K. Powell
(briefed), Assistant Federal Public Defenders, Reno, Nevada,
for the defendant-appellant.
Ronald C. Rachow, Assistant United States Attorney, Reno,
Nevada, for the plaintiff-appellee.
OPINION
D.W. NELSON, Circuit Judge:
Osbaldo Esparza-Gonzalez, who is Latino, appeals from his
conviction, under 8 U.S.C. § 1326(a), for being an alien
unlawfully present in the United States after an earlier
removal. Esparza-Gonzalez alleges that two Equal Protection
violations under Batson v. Kentucky, 476 U.S. 79 (1986),
occurred during jury selection and require that his conviction
be overturned. In the alternative, Esparza-Gonzalez argues
that the district court erred in applying a sixteen-level sen-
tence enhancement pursuant to United States Sentencing
Guidelines (USSG) § 2L1.2(b)(1)(A)(I) to his unlawful re-
entry conviction based on a prior drug trafficking conviction,
which was not presented as evidence to the jury. We hold that
for purposes of determining whether a prima facie case of a
12326 UNITED STATES v. ESPARZA-GONZALEZ
Batson violation has been established, waivers of peremptory
strikes in a struck jury system should be treated the same as
exercises of peremptory strikes in an alternate system.
Accordingly, we reverse in part and remand in part.
FACTUAL AND PROCEDURAL BACKGROUND
On December 17, 2003, Esparza-Gonzalez was indicted
and charged with a violation of 8 U.S.C. § 1326(a) for being
an alien found in the United States without permission after
a prior removal. Esparza-Gonzalez pled not guilty and was
tried by a jury on February 17, 2004.
The district court used what is known as the “struck jury”
system to select jurors for Esparza-Gonzalez’s trial.1 Under
this system, 32 venirepersons are initially selected, of whom
28 are potential jurors and four are potential alternates. Begin-
ning with the defense, each side exercises its challenges for
cause and then its peremptory strikes on an alternating basis.
Because Esparza-Gonzalez was charged with a felony, the
defense had ten peremptory strikes and the prosecution had
six. See Fed. R. Crim. P. 24(b)(2). Each side received one
additional peremptory strike for the alternate jurors. See id. at
(c)(4)(A).
After the voir dire, neither side exercised a single strike for
cause. If each side had used all its peremptory strikes, only a
jury of 12 individuals and two alternates would have remained.2
The defense exercised all of its ten peremptory strikes, but the
prosecution only used one peremptory strike, waiving the
remainder. Under the struck jury system, when either side
waives a peremptory strike, this results in an excess number
1
The district court referred to the jury selection procedure used as the
“modified Arizona system.”
2
If either side had requested and been granted a strike for cause, the
ideal number of jurors and alternate jurors would have been reached
before each side had exercised all of its peremptory strikes.
UNITED STATES v. ESPARZA-GONZALEZ 12327
of potential jurors, and therefore, the juror with the highest
juror number is removed from the jury panel. For this reason,
a waiver of a peremptory strike under this system is properly
viewed as the effective removal of an identifiable juror. In
contrast, when a peremptory strike is waived under other jury
selection systems, no juror is removed from the venire and the
composition of the panel is left unchanged. Under these sys-
tems, it is only when a party exercises a peremptory strike or
a strike for cause that the composition of the venire changes
and a previously unidentified prospective juror is randomly
selected to join the venire.3
Of the 28 potential jurors, only three were persons of color,
one of whom had a Latino surname. Among the four potential
alternates, there was one individual with a Latino surname
and no other individual of color. With the one peremptory
strike it exercised against the potential jurors, the prosecution
removed a white juror. By waiving its second peremptory
strike, the prosecution removed the only potential juror with
a Latino surname, Ms. Martinez, who was juror number 28.4
Defense counsel immediately challenged her removal under
Batson, alleging that the prosecutor waived this strike with the
discriminatory intent to remove the sole prospective Latino
juror. The district court asked the prosecutor to respond to the
challenge, and the prosecutor stated that he was waiving all
his remaining strikes.
3
For example, under the “jury box” system 12 prospective jurors are
seated and subjected to voir dire. When a party exercises any challenge —
peremptory or for cause — a new juror is brought in to replace the
excused juror. The jury box system, then, allows less manipulation of the
entire composition of the jury than the struck jury system permits. See
Bettina B. Plevan, Jury Trial Issues, in Current Developments in Federal
Civil Practice, 706 PLI/Lit 443, 451-52 (2004).
4
The record does not reveal whether Ms. Martinez is Latina or Native
American, which was the subject of speculation by the court. Voir dire
revealed that Ms. Martinez works for a Native American tribe and has a
Latino surname, which may be her maiden name or could be a name
acquired through marriage.
12328 UNITED STATES v. ESPARZA-GONZALEZ
The district court initially found a Batson violation with
respect to the removal of juror Martinez and ordered the clerk
to dismiss the next juror in line, number 27, instead of juror
Martinez. When the prosecutor objected, the district court
noted that it could “take judicial notice of the fact that [the
prosecutor], in many cases, most cases,” exercised all or most
of his peremptory strikes and therefore that his failure to do
so in this case permitted an inference of intentional discrimi-
nation.
After more discussion, the district court retreated from its
initial finding of intentional discrimination and asked defense
counsel whether she had any evidence on “how often the gov-
ernment waived [peremptory] challenges in the past or exer-
cised challenges.” Defense counsel replied that during her last
illegal re-entry case, another prosecutor from the same office
waived a peremptory strike, resulting in the removal of a
minority venireperson. The district court then ordered a short
recess to research case law on whether waiver of a peremp-
tory strike could constitute a Batson violation. When court
resumed, the district court ultimately ruled that the defense
had failed to establish a prima facie case of intentional dis-
crimination. The district court relied on State v. Paleo, 22
P.3d 35 (Ariz. 2001), to conclude that the failure to use a
peremptory strike, without other evidence of discriminatory
intent, cannot constitute a prima facie showing.
After the 12 jurors were selected, each side was allowed to
exercise a peremptory strike against the four alternate jurors.
If each side had used its strike only two alternates would have
remained. The same selection rules applied to the selection of
the alternates, and when the prosecutor waived his peremp-
tory strike, the only alternate with a Latino surname, Mr.
Lopez, was removed. The defense also challenged this
removal under Batson, and in response the district court asked
the prosecutor to explain the only peremptory strike he exer-
cised. (This was the peremptory strike previously exercised
against a potential juror.) The prosecutor said he struck that
UNITED STATES v. ESPARZA-GONZALEZ 12329
potential juror because he was divorced, worked in mainte-
nance, and “didn’t strike [him] as the type of person that
would be particularly attentive.” Defense counsel pointed out
that several of the remaining jurors were divorced and one
worked in maintenance, yet the prosecutor had not used his
remaining five peremptory strikes to remove these potential
jurors. Nevertheless, the district court found that the defense
failed to establish a prima facie showing of intentional dis-
crimination. The court did, however, require the record to be
certified so that other judges might determine whether a pat-
tern existed at the U.S. Attorney’s office of waiving peremp-
tory strikes in order to unseat jurors of color. The jurors and
alternates empaneled to hear Esparza-Gonzalez’s case
included one person of color, who did not have a Latino sur-
name.
The jury found Esparza-Gonzalez guilty of being an alien
present in the United States without permission after a prior
removal under 8 U.S.C. § 1326(a). On April 27, 2004, the dis-
trict court applied USSG § 2L1.2(b)(1)(A)(I) to increase
Esparza-Gonzalez’s sentence due to his prior drug trafficking
conviction, for which he was sentenced to over thirteen
months in prison. Based on this enhancement, the district
court sentenced Esparza-Gonzalez to 57 months imprison-
ment, the low-end of the applicable sentencing range and well
under the 10-year statutory maximum set out in 8 U.S.C.
§ 1326(b)(4). Although no proof of his prior conviction was
presented to the jury, Esparza-Gonzalez did not object to the
accuracy or use of this conviction at the time of sentencing.
Without this enhancement, the sentencing range would have
been only four to ten months. See USSG ch. 5, pt. A, sentenc-
ing table (2004). Esparza-Gonzalez timely appealed his con-
viction and sentence to this court.
STANDARD OF REVIEW
We review de novo the question of whether a district court
must apply Batson to a defendant’s claim of intentional racial
12330 UNITED STATES v. ESPARZA-GONZALEZ
discrimination. See United States v. Alanis, 335 F.3d 965, 967
& n.1 (9th Cir. 2003). But we review a district court’s finding
of whether the defendant established a prima facie case for
racial discrimination only for clear error. United States v.
Steele, 298 F.3d 906, 910 (9th Cir. 2002). Similarly, we
review for clear error the district court’s decision on intent to
discriminate. Id. To reverse under the clear error standard, we
must have “a definite and firm conviction that a mistake has
been committed.” United States v. Elliott, 322 F.3d 710, 714
(9th Cir. 2003) (internal quotation and citation omitted).
DISCUSSION
I. The Batson Challenges
A. Waiver of Peremptory Strikes Can Form the Basis
of a Batson Challenge
[1] In Batson, the Supreme Court held that a “[s]tate’s priv-
ilege to strike individual jurors through peremptory chal-
lenges, is subject to the commands of the Equal Protection
Clause.”5 476 U.S. at 89. Batson and its progeny established
a three-part test for determining whether the exercise of a
peremptory strike violates equal protection. First, the chal-
lenging party bears the burden of establishing a prima facie
showing of intentional discrimination. Id. at 93-94. If the
challenging party satisfies this burden, the burden of produc-
tion shifts to the party exercising the strike to articulate a
race-neutral reason for the strike. Id. at 97-98. The race-
neutral reason provided does not have to “rise to the level jus-
tifying exercise of a challenge for cause,” id. at 97, nor does
the explanation have to be “persuasive, or even plausible.”
Purkett v. Elem, 514 U.S. 765, 768 (1995). But the reason
5
This analysis applies in federal criminal cases as well. See Buckley v.
Valeo, 424 U.S. 1, 93 (1976) (“Equal protection analysis in the Fifth
Amendment area is the same as that under the Fourteenth Amendment.”);
United States v. De Gross, 913 F.2d 1417, 1422 n.7 (1990).
UNITED STATES v. ESPARZA-GONZALEZ 12331
must be tied to the particular case. Batson, 476 U.S. at 98.
Third, once the striking party provides a race-neutral explana-
tion, the burden returns to the challenging party to show that
the reason given was pretextual and that the striking party
engaged in purposeful discrimination. Id. Because a finding of
intentional discrimination is a finding of fact, a reviewing
court must give appropriate deference to the trial court’s deci-
sion at this last stage. Id. at 98 n.21.
[2] Whether under the struck jury system waivers of
peremptory strikes can form the basis of a Batson challenge
is a question of first impression. In denying that they can, the
district court relied on a case decided by the Arizona Supreme
Court. Paleo, 22 P.3d at 37. The court in Paleo held that
under the struck jury system waivers of peremptory strikes in
combination with other factors can establish a prima facie
case of discrimination under Batson, but that such waivers
standing alone cannot.6 Id. Because under this particular
method of jury selection waivers of peremptory strikes result
in the removal of known jurors, we conclude that such waiv-
ers are best viewed as effective strikes against identifiable
jurors, and therefore for the purposes of establishing a prima
facie case such waivers should be treated the same as the
exercise of peremptory strikes.
[3] In Paleo, the Arizona Supreme Court incorrectly con-
cluded that peremptory strikes and the waiver of these strikes
differ because the former require action, while the latter sim-
ply inaction. 22 P.3d at 37. Under the struck jury system, both
the exercise of a peremptory strike and the waiver of a strike
remove a single, clearly identified juror. If a peremptory
strike is used, the striking party directly removes an identifi-
6
Two Texas Appellate Courts previously considered, and rejected, the
use of a peremptory strike waiver as a basis for a Batson challenge. See
Mayes v. State, 870 S.W.2d 695, 699 (Tex. App. 1994); Russell v. State,
804 S.W.2d 287, 290-91 (Tex. App. 1991). In both cases the trial court
appears to have used a version of the struck jury system for juror selection.
12332 UNITED STATES v. ESPARZA-GONZALEZ
able juror, and no new juror is seated. Similarly, if a party
waives a peremptory strike in the struck jury system, an iden-
tifiable juror (the one with the highest juror number) is
removed and no new juror is seated. However, under other
selection procedures, such as the jury box system, use of a
peremptory strike results in the removal of a known juror who
is replaced with an unknown, randomly selected juror. Under
these systems, the waiver of a peremptory strike does not
remove a juror or introduce a new juror.7 It is only under
selection systems like the jury box system that waiver of a
peremptory strike amounts to inaction or preservation of the
status quo. By contrast, under the struck jury system, a waiver
of a peremptory strike is not merely passive, but is more prop-
erly viewed as an effective strike of an identifiable juror.
For this reason, the struck jury system has long been criti-
cized for allowing the racial engineering of juries. See, e.g.,
United States v. Blouin, 666 F.2d 796, 798 (2d Cir. 1981)
(noting that the struck jury system might “increase the oppor-
tunity to shape a jury along racial or other class lines”); James
Oldham, The History of the Special (Struck) Jury in the
United States and its Relation to Voir Dire Practices, the Rea-
sonable Cross-Section Requirement, and Peremptory Chal-
lenges, 6 Wm. & Mary Bill Rts. J. 623, 668 (1998) (“It may
be easier, however, to camouflage discrimination with the
struck jury model because the demographics of the entire
panel will be known from the start, making it easier to pick
and choose.”); Jon M. Van Dyke, Jury Selection Procedures:
Our Uncertain Commitment to Representative Panels 150
(1977) (observing that the “struck jury system [has been]
employed to use [the peremptory challenge] power to elimi-
7
See Plevan, 706 PLI/Lit at 451-52 (“For good or for ill, the ‘jury box’
method focuses on the selection of individual jurors and does not allow the
shaping of an entire jury. Counsel have no way of knowing . . . who will
replace the challenged juror. This means that counsel must decide who to
strike based on the individual’s qualities, rather than whether that person
is better or worse than the replacement.”).
UNITED STATES v. ESPARZA-GONZALEZ 12333
nate entire races or classes of people from jury venires”). As
the Second Circuit has noted, “[i]t is far from clear, however,
that the right to challenge peremptorily should necessarily
imply a right to shape a jury’s profile” to the extent allowed
by the struck jury system. Blouin, 666 F.2d at 798. Despite
the power the struck jury system gives to parties to shape the
composition of the jury, it has been held to pass constitutional
muster, at least in the abstract. See J.E.B. v. Alabama ex rel
T.B., 511 U.S. 127, 144 n.17 (1994) (noting that Alabama is
free to use the struck jury system so long as its actual use
complies with the Constitution); see also Amsler v. United
States, 381 F.2d 37, 44 (9th Cir. 1967) (upholding the “Ari-
zona system” of jury selection, which is similar to the struck
jury system).
The Supreme Court recently held that jury selection proce-
dures may give rise to an inference of discriminatory intent
even though the prosecutor is not actively striking potential
jurors. In Miller-El v. Dretke, 125 S. Ct. 2317, 2332-33
(2005), the Court condemned the use of a practice called the
“Texas jury shuffle.” Under the Texas Criminal Code, either
side may request shuffling of the venire panel such that a cer-
tain group of potential jurors (those shuffled to the back of the
venire) will likely never be called for voir dire questioning
because a jury will be formed before they reach the front of
the list. Id. at 2332-33 & n.12 (citing Tex. Code Crim. Proc.
Ann., Art. 35.11 (Vernon Supp. 2004-2005)). When used to
exclude potential black jurors, this practice supported an
inference of discrimination.
[4] Similarly, the struck jury system allows parties who
intentionally want to remove jurors for discriminatory reasons
to camouflage these removals by unseating jurors through the
waiver of peremptory strikes rather than resorting to direct
removals by using peremptory strikes. It is clear that under
the struck jury system, the waiver of peremptory strikes, just
like the exercise of these strikes, allows those of “a mind to
discriminate” to do so. See Batson, 476 U.S. at 96 (observing
12334 UNITED STATES v. ESPARZA-GONZALEZ
that “the defendant is entitled to rely on the fact, as to which
there can be no dispute, that peremptory challenges constitute
a jury selection practice that permits those to discriminate
who are of a mind to discriminate”) (internal quotation and
citation omitted). Failing to provide protection against
removal of identifiable jurors, when such removal is achieved
by waiver rather than exercise of a peremptory strike, would
frustrate the essential purpose of Batson — to eliminate the
race-based selection of jurors — and would violate the equal
protection rights of both the defendant and prospective jurors.
[5] The government correctly notes that it is not required to
exercise all of its peremptory challenges and that it was well
within its rights to waive five of its six peremptory strikes in
this case. In the abstract, this is of course true. The use of
peremptory strikes has long been recognized as a capricious
and arbitrary right used at the will of the striking party. See
Pointer v. United States, 151 U.S. 396, 408 (1894) (observing
that “[t]he right to challenge a given number of jurors without
showing cause is one of the most important of the rights
secured to the accused . . . . [H]e may exercise that right with-
out reason or for no reason, arbitrarily and capriciously”)
(internal quotation omitted). But even this capricious right is
limited by equal protection requirements, and when a waiver
of a peremptory strike creates an inference of intentional dis-
crimination, the party waiving that strike must provide a race-
neutral explanation for its decision to effectively remove a
specific juror. The government argues that such a rule would
grant the defendant the right to a jury composed in whole or
part of persons of his race — a right to which no defendant
is entitled. Batson, 476 U.S. at 85. We disagree. Our holding
simply requires the prosecution to provide race-neutral rea-
sons for a waiver of a peremptory strike under the struck jury
system when a defendant establishes a prima facie showing of
intentional discrimination based on the challenged waiver.
B. The Challenge to Juror Lopez
[6] Having determined that, under the struck jury system,
waivers of peremptory strikes should be treated as effective
UNITED STATES v. ESPARZA-GONZALEZ 12335
peremptory strikes, we begin our analysis of Esparza-
Gonzalez’s specific Batson challenges with the last juror chal-
lenged, juror Lopez. We conclude that Esparza-Gonzalez
established a prima facie case of intentional discrimination
with respect to juror Lopez’s removal from the pool of alter-
nate jurors. To establish a prima facie case, Esparza-Gonzalez
must show that (1) he is a member of a cognizable group; (2)
the prosecutor has removed members of such a group; and (3)
the totality of the circumstances gives rise to an inference that
the prosecutor excluded jurors based on race. Fernandez v.
Roe, 286 F.3d 1073, 1077 (9th Cir. 2002); United States v.
Chinchilla, 874 F.2d 695, 698 (9th Cir. 1989). In making this
showing, the defendant is entitled to rely on the fact that
peremptory challenges provide a useful vehicle for those
intent on discriminating. Batson, 476 U.S. at 96. Likewise, we
hold that under the struck jury system, defendants challenging
waivers of peremptory strikes may rely on the fact that these
waivers also provide a handy means of discriminating. The
Supreme Court has held that a defendant can make out a
prima facie case “by offering a wide variety of evidence, so
long as the sum of the proffered facts gives rise to an infer-
ence of discriminatory purpose.” Johnson v. California, 125
S. Ct. 2410, 2416 (2005) (internal citation and quotation omit-
ted).
[7] Although our precedent does not require a pattern of
removing people of color to establish a prima facie case of a
Batson violation, see United States v. Vasquez-Lopez, 22 F.3d
900, 902 (9th Cir. 1994), such a pattern “provides support for
an inference of discrimination.” Fernandez, 286 F.3d at 1078
(internal quotation removed). At the time that Esparza-
Gonzalez objected to juror Lopez’s removal, the prosecution
had effectively struck the only potential Latino juror as well
as the only potential Latino alternate. This pattern suggested
a general pattern of racial discrimination. However,
“[b]ecause the numbers are so small (and, hence, potentially
unreliable), two such challenges, standing alone, may not be
sufficient to support an inference of discrimination.” Id. But
12336 UNITED STATES v. ESPARZA-GONZALEZ
see Chinchilla, 874 F.2d at 698 (finding a prima facie case
when the prosecutor struck the only prospective Latino juror
and the only prospective Latino alternate using his first
peremptory strike and his sole peremptory strike for alternate
jurors).
[8] Esparza-Gonzalez, however, has presented much more
than this pattern of removal to support a prima facie showing.
First, the prosecutor’s actions during the jury selection pro-
cess provide further support, when viewing the totality of the
circumstances, for an inference of intentional discrimination.
The prosecutor’s effective strikes of potential alternate juror
Lopez and potential juror Martinez after waiving his opportu-
nity to pose any direct questions to the venire panel contrib-
utes to an overall inference of discriminatory intent. See
Fernandez, 286 F.3d at 1079 (relying partly on the fact that
the “prosecutor failed to engage in meaningful questioning of
any of the minority jurors” to establish the prima facie show-
ing). The district court conducted the voir dire, which pro-
duced very little distinguishing information on jurors Lopez
and Martinez. Juror Lopez and Martinez each responded
directly to one question posed by the district court. Ms. Marti-
nez was one of six veniremembers to respond affirmatively to
the district court’s inquiry into whether any one had previ-
ously served on a criminal jury. She reported serving on an
income tax evasion case, which resulted in a verdict. Cf.
Miller-El v. Dretke, 125 S. Ct. at 2325 (engaging in compara-
tive juror analysis and holding that “if a prosecutor’s prof-
fered reason for striking a black panelist applies just as well
to an otherwise-similar nonblack who is permitted to serve,
that is evidence tending to prove purposeful discrimination to
be considered at Batson’s third step”). Though here the prose-
cutor did not suggest that Ms. Martinez’s effective exclusion
was based on her prior service in a criminal jury, it is none-
theless relevant for the court to consider the differing treat-
ment of similarly situated potential jurors.
Mr. Lopez was the only veniremember to respond affirma-
tively to the district court’s question of whether anyone trav-
UNITED STATES v. ESPARZA-GONZALEZ 12337
eled to Mexico approximately once every two years. Mr.
Lopez stated that he took leisure trips to places like Cancun.
In addition, the judge asked each juror to state for the court
“where [they] live and what [they] do for a living, if [they]
work outside the home, if [they’re] married . . . [and] what
[their] spouse does for a living.” The record does not indicate
that juror questionnaires were used for voir dire, and the pros-
ecutor declined the opportunity to ask additional direct voir
dire questions after the district court finished its questioning.
At the time he waived the peremptory strike causing the
removal of juror Lopez, the prosecutor had very little hard
information to base this decision on. Although the prosecutor
has no obligation to question all potential jurors, his failure to
do so prior to effectively removing a juror of a cognizable
group through a waiver may contribute to a suspicion that this
juror was removed on the basis of race. This suspicion, along
with other factors, may lead to an inference of intentional dis-
crimination.
[9] Second, the judicial notice taken, at least initially, by
the district court of the prosecutor’s usual practice of exercis-
ing all or most of his peremptory strikes further supports an
inference of intentional discrimination, in light of the totality
of the circumstances. Third, the defense counsel’s statement
that another prosecutor from the same office had recently
waived peremptory strikes to remove minority jurors in
another illegal re-entry case also buttresses the defendant’s
case that the totality of the circumstances created an inference
of discriminatory intent.
[10] Finally, while illegal re-entry is not necessarily a
racially charged crime, in this case, Esparza-Gonzalez is a
Mexican national and thus race is clearly involved in the pro-
ceeding. This fact is one that should also be considered when
evaluating whether the totality of the circumstances gives rise
to an inference of discriminatory intent. Presumably recogniz-
ing the racial element inherent in the trial, the district court
asked all jurors during voir dire whether “the fact that the
12338 UNITED STATES v. ESPARZA-GONZALEZ
defendant is Hispanic, would . . . in any way influence any of
you in making a decision in this case.” See Simmons v. Beyer,
44 F.3d 1160, 1168 (3d Cir. 1995) (noting a similar question
posed by the trial court when evaluating the defendant’s
prima facie case). Therefore, based on the pattern of exclu-
sion of the only two Latino veniremembers as well as on the
relevant circumstances surrounding the challenge to juror
Lopez’s removal, we conclude that the district court erred in
finding that the defendant failed to make a sufficient showing
to establish a prima facie case.
[11] Because the district court never required the prosecu-
tion to articulate a race-neutral reason for juror Lopez’s
removal, we remand for an evidentiary hearing to allow the
prosecution to present evidence of the actual reason for this
removal. See Paulino v. Castro, 371 F.3d 1083, 1092 (9th Cir.
2004) (citing Batson, 476 U.S. at 100). After this evidence is
presented, the district court should, in the first instance, evalu-
ate the validity of any offered race-neutral explanations for
juror Lopez’s removal. Id.
C. The Challenge to Juror Martinez
Initially, the district court determined that the defense
established a prima facie case under Batson with respect to
the removal of juror Martinez and asked the prosecutor for a
response to the challenge. The prosecutor responded that he
was “waiving the rest” of his peremptory strikes. The district
court was not satisfied with this race-neutral explanation for
the removal of juror Martinez and instructed the clerk to strike
the next juror in line instead of juror Martinez. The prosecutor
objected to the district court’s conclusion that he intentionally
discriminated against juror Martinez and eventually con-
vinced the district court to reassess this Batson challenge.
The Supreme Court has held that when a party articulates
a race-neutral reason for a challenged strike and the trial court
proceeds to the last step of the Batson inquiry to determine
UNITED STATES v. ESPARZA-GONZALEZ 12339
whether the party intentionally discriminated in making the
strike, the initial question of whether a prima facie showing
was established is moot before the reviewing court. Her-
nandez v. New York, 500 U.S. 352, 359 (1991) (plurality opin-
ion). In reaching this holding, the Supreme Court relied on an
earlier decision in the Title VII employment discrimination
context. United States Postal Service Bd. of Governors v.
Aikens, 460 U.S. 711, 715 (1983). In Aikens, the Supreme
Court concluded that when “the defendant has done every-
thing that would be required of him if the plaintiff had prop-
erly made out a prima facie case, whether the plaintiff really
did so is no longer relevant.” Id.
[12] In Aikens, as in the case at hand, the district court ini-
tially concluded that a prima facie case of intentional discrim-
ination had been established, but later returned to this
question instead of focusing on the ultimate inquiry of racial
discrimination vel non. Id. at 714-15 & n.4. The Supreme
Court held that once the district court had found a prima facie
case and required the challenged party to proffer a race-
neutral explanation, “the factual inquiry proceeds to a new
level of specificity” and the district court must decide the ulti-
mate issue — the existence or not of discriminatory intent. Id.
at 715 (internal quotations and citation omitted). Esparza-
Gonzalez argues that this holding applies with equal force to
the Batson context and to his challenge to juror Martinez’s
removal. We agree. Once the district court found that the
removal of juror Martinez violated Batson, it could not
reevaluate this finding of intentional discrimination — even
during the same hearing — based simply on a reassessment
of the strength of the initial prima facie case. See Durant v.
Strack, 151 F. Supp. 2d 226, 242 (E.D.N.Y. 2001) (holding
that once the trial court made a preliminary finding of dis-
criminatory intent, the court could not revert to step one of the
Batson analysis to reevaluate whether a prima facie case had
been established). To allow juror Martinez’s removal, the dis-
trict court would have had to reverse its earlier conclusion that
the prosecutor intentionally discriminated against her. Accept-
12340 UNITED STATES v. ESPARZA-GONZALEZ
ing anything less would run afoul of the Supreme Court’s
decisions in Hernandez and Aikens.
[13] We disagree with Esparza-Gonzalez’s contention that
this error on the part of the district court is structural and
requires reversal of his conviction. As the Supreme Court did
in Aikens, we remand to the district court for a determination
of the ultimate Batson issue — was the removal of potential
juror Martinez the result of intentional discrimination — with
Esparza-Gonzalez bearing the burden of persuasion. We real-
ize, of course, that the district court at one point did conclude
that there had been intentional discrimination. However,
because the court later withdrew that determination, we think
the best course of action is to remand to the district court.
II. Sentencing Challenge
Esparza-Gonzalez argues that his Sixth Amendment rights
were violated when the district court increased his sentence
by sixteen levels based on his prior conviction for drug traf-
ficking, a fact not found by the jury convicting him for illegal
re-entry. The Supreme Court has made clear, however, that
enhancements based on prior convictions need not be proven
beyond reasonable doubt by a jury or admitted by the defen-
dant to satisfy the Sixth Amendment. United States v. Booker,
125 S. Ct. 738, 748-49 (2005).
[14] Esparza-Gonzalez seeks a remand based on the fact
that he was sentenced under the mandatory sentencing
regime. See United States v. Moreno-Hernandez, No.
03-30387, slip op. 10795, 10813 (9th Cir. Aug. 17, 2005)
(“We conclude that defendants are entitled to limited remands
in all pending direct criminal appeals involving unpreserved
Booker error, whether constitutional or nonconstitutional.”).
We therefore REMAND Esparza-Gonzalez’s sentence in
accordance with the limited remand procedures in United
States v. Ameline, 409 F.3d 1073, 1084 (9th Cir. 2005) (en
banc).
UNITED STATES v. ESPARZA-GONZALEZ 12341
CONCLUSION
Based on the foregoing discussion, we REVERSE the dis-
trict court’s finding that the defendant failed to establish a
prima facie case of discrimination with respect to juror Lopez
and REMAND to the district court to determine if a race-
neutral explanation for the exclusion can be provided and if
this explanation is merely pretext for discrimination. We also
REMAND the challenge regarding juror Martinez for further
proceedings to allow the district court to revisit its earlier
determination as to whether intentional discrimination
occurred contrary to Batson such that a new trial is merited.
Lastly, we REMAND Esparza-Gonzalez’s sentence to the dis-
trict court.
Reversed in part and remanded in part.