United States v. Marcelo Santos-Cordero

FILED
NOT FOR PUBLICATION
SEP 28 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 15-50312
Plaintiff-Appellee, D.C. No.
3:15-cr-00622-LAB-1
v.
MARCELO JOEL SANTOS-CORDERO, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of California
Larry Alan Burns, District Judge, Presiding
Argued and Submitted August 31, 2016
Pasadena, California
Before: WARDLAW and BYBEE, Circuit Judges and ZIPPS,** District Judge.
Appellant Marcelo Santos-Cordero was convicted by a jury for illegal
reentry, in violation of 8 U.S.C. § 1326, and making a false claim to United States
citizenship, in violation of 18 U.S.C. § 911. On appeal, he argues the district court
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Jennifer G. Zipps, United States District Judge for the
District of Arizona, sitting by designation.
misapplied the procedure outlined in Batson v. Kentucky, 476 U.S. 79 (1986),
when evaluating the Government’s peremptory strike of a Hispanic juror.
A Batson challenge is evaluated using a three-step procedure. In the first
step, “the defendant must make out a prima facie case ‘by showing that the totality
of the relevant facts gives rise to an inference of discriminatory purpose.’”
Johnson v. California, 545 U.S. 162, 168 (2005) (quoting Batson, 476 U.S. at93–94). Second, if that prima facie case is made out, the “‘burden shifts to the
State to explain adequately the racial exclusion’ by offering permissible race-
neutral justifications for the strikes.” Id. (quoting Batson, 476 U.S. at 94). Third,
the trial court must decide whether, given all of the relevant facts, the race-neutral
justification is credible, or defendant has proven purposeful discrimination. Id.The district court violated the procedure outlined in Batson when at step one,
before offering defense counsel an opportunity to explain its objection, it offered
its own speculation as to reasons the prosecutor might have challenged the juror.
Currie v. McDowell, 825 F.3d 603, 609–10 (9th Cir. 2016); Paulino v. Castro, 371
F.3d 1083, 1090 (9th Cir. 2004). The district court responded to Santos-Cordero’s
Batson challenge by stating that while the juror appeared to be Hispanic, she had
clearly displayed great hesitance in her answers about immigration and there was
no evidence to suggest the challenge was exercised on an invidious basis. “[I]t
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does not matter that the prosecutor might have had good reasons to strike the
prospective jurors. What matters is the real reason they were stricken.” Paulino,
825 F.3d at 1090. “[T]he existence of ‘grounds upon which a prosecutor could
reasonably have premised a challenge,’ does not suffice to defeat an inference of
racial bias at the first step of the Batson framework.” Johnson v. Finn, 665 F.3d
1063, 1069 (9th Cir. 2011). Therefore, the district court erred by relying on its
own speculation about the prosecutor’s potential reasons for striking the juror
when it concluded that a prima facia showing of discrimination had not been made
at step one.
Accordingly, we remand this case to the district court to conduct a proper
Batson analysis.
REVERSED.
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