United States v. Marco Reyes-Aranda

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 2, 2021
• Docket: 20-50357
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED AUG 2 2021 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT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

2 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,

1 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.

3 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

4 are not present here. See United States v. Reyes, 313 F.3d 1152, 1159 (9th Cir.

2002) (citation omitted).

AFFIRMED.