United States v. Marco Reyes-Aranda ( 2021 )

NOT FOR PUBLICATION FILED
AUG 2 2021
UNITED STATES COURT OF APPEALS
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 20-50357
Plaintiff-Appellee, D.C. No.
3:20-cr-01065-LAB-1
v.
MARCO ANTONIO REYES-ARANDA, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of California
Larry A. Burns, District Judge, Presiding
Submitted July 29, 2021**
Pasadena, California
Before: M. SMITH and LEE, Circuit Judges, and ROBRENO,*** District Judge.
Marco Antonio Reyes-Aranda appeals from the district court’s judgment
revoking his probation and imposing a fifteen-month sentence. The judgment
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Eduardo C. Robreno, United States District Judge for
the Eastern District of Pennsylvania, sitting by designation.
rested on the district court’s finding that Reyes-Aranda had committed a grade B
felony under 8 U.S.C. § 1325. We have jurisdiction under 28 U.S.C. § 1291, and
we review the revocation of probation for abuse of discretion. See United States v.
Duff, 831 F.2d 176, 177 (9th Cir. 1987). Whether a supervised releasee received
due process at a revocation proceeding is a mixed question of law and fact that is
reviewed de novo. United States v. Perez, 526 F.3d 543, 547 (9th Cir. 2008). We
affirm.
1. Reyes-Aranda primarily relies on a due process claim to challenge the
revocation decision. But his core argument appears to be that the district court
improperly relied on past court records to find that he had three prior § 1325
convictions. And that finding led the court to conclude that his most recent § 1325
conviction constituted a felony. See 8 U.S.C. § 1325(a); United States v.
Rodriguez-Gonzales, 358 F.3d 1156, 1160 (9th Cir. 2004).
We reject Reyes-Aranda’s argument for two reasons. First, during the
revocation hearing, counsel conceded the prior § 1325 convictions. See United
States v. Lynch, 903 F.3d 1061, 1072 (9th Cir. 2018) (noting that concession of
guilt “severely limit[ed] [the defendant’s] ability to complain of purported errors”).
Second, to find that Reyes-Aranda had past convictions, the district judge relied on
a transcript of the sentencing hearing where he first imposed probation. During
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that hearing, Reyes-Aranda admitted to his prior § 1325 convictions.1 Relying on
those admissions was not improper, as a district court “may take judicial notice of
its own records in other cases.” United States v. Wilson, 631 F.2d 118, 119 (9th
Cir. 1980) (citations omitted).
Because the evidence of past § 1325 convictions was sufficient to
“reasonably satisf[y]” the district court that Reyes-Aranda had committed a felony
in violation of his probation, see United States v. Guadarrama, 742 F.2d 487, 489
(9th Cir. 1983) (per curiam), the court did not abuse its discretion by revoking
probation.
2. Turning to the due process challenge, Reyes-Aranda argues that, by
considering the border patrol agent’s testimony and the rap sheet summary, the
district court violated his right to “confront and cross-examine adverse witnesses.”
Morrissey v. Brewer, 408 U.S. 471, 489 (1972). First, there was no violation based
on the agent’s testimony, as it did not affect the court’s decision. The testimony
concerned whether Reyes-Aranda had violated 8 U.S.C. § 1326, and the court
revoked probation solely based on its finding that he had violated § 1325. Second,
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Reyes-Aranda also admitted his past § 1325 convictions during the change of
plea hearing that preceded the revocation hearing. He now seeks to undermine all
his prior admissions by claiming they were not based on “verified facts.” But the
“verified fact” requirement applies when the government seeks to admit hearsay
evidence to support a probation violation. See United States v. Comito, 177 F.3d
1166, 1170 (9th Cir. 1999). It is thus inapplicable in this context.
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in an earlier proceeding, Reyes-Aranda confirmed the rap sheet summary’s
accuracy, which undermines his challenge to its reliability. And, even if either the
agent’s testimony or the summary posed a confrontation problem, any error was
harmless. Perez, 526 F.3d at 547. Absent the summary, counsel’s admissions and
the sentencing hearing transcript were sufficient to support a finding that Reyes-
Aranda had prior § 1325 convictions. Reyes-Aranda thus did not suffer a
confrontation violation.
Reyes-Aranda also argues that he was denied due process because the
district court did not function as a “‘neutral and detached’ hearing body.”
Morrissey, 408 U.S. at 489. We reject this claim for several reasons. As we have
explained, the court properly used judicial notice to consider past proceedings and
counsel’s admissions. And we find no error in the court’s questioning of the
border patrol agent. See Duckett v. Godinez, 67 F.3d 734, 739 (9th Cir. 1995).
Finally, the district court’s comments about border patrol do not reveal a “deep-
seated favoritism or antagonism that would make fair judgment impossible.”
Liteky v. United States, 510 U.S. 540, 555 (1994). We thus hold that the
revocation hearing satisfied due process requirements.
3. As the district court did not abuse its discretion in revoking probation, we
need not address whether remand to a different judge is warranted. In any event,
we note that such a remedy is appropriate only in “unusual circumstances,” which
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are not present here. See United States v. Reyes, 313 F.3d 1152, 1159 (9th Cir.
2002) (citation omitted).
AFFIRMED.
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