United States v. Juan Juarez-Piseno

702 F. App'x 344
CourtCourt of Appeals for the Sixth Circuit
DecidedJuly 28, 2017
Docket17-5059
StatusUnpublished

This text of 702 F. App'x 344 (United States v. Juan Juarez-Piseno) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Juan Juarez-Piseno, 702 F. App'x 344 (6th Cir. 2017).

Opinion

OPINION

McKEAGUE, Circuit Judge.

Defendant Juan Juarez-Piseno pled guilty to one count of reentering the United States illegally. At sentencing, the district court imposed a guideline enhancement after determining that he had obstructed justice. Specifically, the court found that Juarez-Piseno had misled a state court so that he could receive orders expunging earlier convictions and then used the orders to challenge his presen-tence report in this case. Undisputedly, Juarez-Piseno presented the district court with ill-gotten orders. He argues on appeal, however, that the district court could not find that he willfully misled it or the state court that issued the orders. For the following reasons, we disagree and affirm.

I

During the 1990s, Juarez-Piseno racked up two domestic-assault convictions in California. After his second conviction, he was deported to his native Mexico. He later returned to the United States illegally and was arrested in Nashville, Tennessee. In May 2016, he was indicted on one count of illegal reentry. See 8 U.S.C. §§ 1326(a), (b)(2). He pled guilty at a hearing in early August, and the district court set a date for sentencing in November.

Facing his new charge, Juarez-Piseno came to regard his old criminal record as a liability. So, in August, he asked his ex-girlfriend to find an attorney in California to get his two domestic-assault convictions expunged. She found Jeffrey A. Tenenb-aum, a Merced County defense attorney.

Tenenbaum got to work. In late August, he contacted Juarez-Piseno’s Tennessee counsel, explained that he was working on expungement, and asked for any information counsel had related to Juarez-Piseno’s criminal record. Counsel responded by sending Tenenbaum the pretrial services report that the federal probation office had prepared following Juarez-Piseno’s May indictment. After receiving the report from Tennessee counsel, Tenenbaum filed peti *346 tions for expungement on Juarez-Piseno’s behalf, Tenenbaum went to a brief hearing on the petitions at the county court and secured the expungement orders. He then sent them along to Tennessee counsel in early October. 1

■ Tennessee counsel relied on Tenenb-aum’s work in Juarez-Piseno’s sentencing position. When the federal probation office prepared a presentence report using Juarez-Piseno’s California convictions to increase his guideline range, Tennessee counsel objected. He asserted that the ex-pungement orders meant that Juarez-Pise-no’s convictions should no longer count against him.

The Government immediately identified a problem with this challenge, however. Under the expungement law identified in the orders, California Penal Code § 1203.4, a defendant cannot obtain relief if he is “then ... charged with the commission of any offense.” Juarez-Piseno was indicted in May 2016. The expungement orders were from September 2016. Thus, he was facing criminal charges when he obtained the orders. Ergo, he should not have received them.

Juarez-Piseno’s Tennessee counsel dropped his challenge after seeing the Government’s response. But the timeline made the Government suspicious. It asked the district court to delay the sentencing hearing so it could consider whether Juarez-Piseno had tried to mislead the court. The court granted the motion and pushed the sentencing hearing back to January 2017.

The Government ultimately decided that Juarez-Piseno had procured the expunge-ments in bad faith. In December, it requested that Juarez-Piseno receive an additional two-level enhancement in his guideline calculation to reflect the bad orders. 2 The Government’s request relied on U.S.S.G. § 3C1.1, which requires a guideline increase for obstruction of justice. The provision says, in relevant part, that a defendant’s offense level must increase if he “willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice with respect to the investigation, prosecution, or sentencing of the instant offense of conviction[,]” U.S.S.G. § 3C1.1 (emphasis added).

To support its request, the Government attached the petitions which Tenenbaum filed on Juarez-Piseno’s behalf with the California court. Both were filed under penalty of perjury. Both falsely represented that Juarez-Piseno was not facing any criminal charges. But they were only signed by Tenenbaum, not Juarez-Piseno.

The Government’s request narrowed the sentencing' hearing’s focus to one issue: whether Juarez-Piseno mllfully misled the courts. Two Merced County district attorneys testified about the perfunctory way in which California courts issue expunge-ments, as well as to Tenenbaum’s familiarity with the county court. But Juarez-Pise-no and his ex-girlfriend were the primary witnesses. The two claimed a limited role *347 in the expungement process and no familiarity with its requirements. They testified that they only told Tenenbaum that Juarez-Piseno was “arrested for reentry,” assuming he would know it was a criminal matter. For his part, Juarez-Piseno said that he only spoke to Tenenbaum once and was not asked about whether he was facing a criminal charge or civil immigration proceedings. Juarez-Piseno also testified that he never saw the petitions Tenenb-aum filed, or the resulting orders, until the sentencing hearing itself.

The court ultimately concluded that the Government had proved by a preponderance of the evidence that Juarez-Piseno had acted willfully. It reasoned that Juarez-Piseno and Tenenbaum most likely discussed that Juarez-Piseno did not qualify for expungement but that the state court would address his request in a perfunctory manner. Then, the district court reasoned, the two likely thought no one would question the orders once Juarez-Piseno presented them in federal court.

In reaching its decision, the court made several factual findings, including credibility determinations. First, it found that Ten-enbaum knew from the pretrial services report furnished by Tennessee counsel that Juarez-Piseno was facing federal charges. Second, it found it more likely than not that Juarez-Piseno and Tenen-buam discussed that the county court would review the petitions in a perfunctory manner and that no one would likely check for pending federal charges. Further, the court determined it was likely that they thought no one would question the orders once they obtained them. Finally, the court disbelieved Juarez-Piseno’s testimony that he did not know that Tenenabum lied on the petitions, or, alternatively, that he only avoided learning about what Tenenbaum was doing as a ploy to retain plausible deniability.

Factoring in the obstruction enhancement, the court calculated Juarez-Piseno’s final guideline range to be 21 to 27 months. It then sentenced him to a below-guideline term of 20 months’ imprisonment. Juarez-Piseno now appeals that sentence, arguing that the court lacked sufficient evidence to conclude that he willfully obstructed justice.

II

The Government bears the burden to establish facts supporting an enhancement under U.S.S.G. § 3C1.1 by a preponderance of the evidence.

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Bluebook (online)
702 F. App'x 344, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-juan-juarez-piseno-ca6-2017.