United States v. Rafael Barraza-Jimenez

• Court: Court of Appeals for the Ninth Circuit
• Decided: September 21, 2020
• Docket: 19-10256
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION SEP 21 2020 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 19-10256

Plaintiff-Appellee, D.C. No. 2:18-cr-01042-JAT-1

v. MEMORANDUM* RAFAEL BARRAZA-JIMENEZ, AKA Miguel Barrazas-Jimenez, AKA Raphiael Jiminez Carillo, AKA Jose Munoz- Hernandez,

Defendant-Appellant.

UNITED STATES OF AMERICA, No. 19-10257

Plaintiff-Appellee, D.C. No. 2:15-cr-00394-JAT-1

v.

RAFAEL BARRAZA-JIMENEZ, AKA Arturo Baraza Jimenez, AKA Arturo Baraza Jiminez, AKA Miguel Barraza Jimenez, AKA Miguel Barraza-Jimenez, AKA Miguel Barrazas Jimenez, AKA Miguel Barrazas-Jimenez, AKA Jose Munoz-Hernandez,

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Defendant-Appellant.

Appeal from the United States District Court for the District of Arizona James A. Teilborg, District Judge, Presiding

Submitted September 14, 2020** San Francisco, California

Before: SCHROEDER, W. FLETCHER, and VANDYKE, Circuit Judges.

Rafael Barraza-Jimenez reentered the United States illegally and was

apprehended by the Phoenix Police on May 22, 2018. Regarding this incident,

Barraza-Jimenez pleaded guilty to Reentry of a Removed Alien in violation of 8

U.S.C. § 1326(a), (b)(1) on April 11, 2019. At the time of his May 2018

apprehension, Barraza-Jimenez was on supervised release in connection with

another offense. The government successfully petitioned the court to revoke his

release. He argues on appeal (a) that he was denied due process because he was

not fully informed prior to entering his guilty plea; (b) that he was improperly

sentenced for the conviction under § 1326; and (c) that he was improperly

** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). 2 sentenced on the revocation of supervised release. None of the arguments is

persuasive.

First, Barraza-Jimenez argues that due process was violated because he was

not informed prior to entering a guilty plea for the May 2018 apprehension that he

would lose the good time credit he had accumulated while on supervision for the

prior offense. Even though Barraza-Jimenez acknowledges that he was “not

entitled to repetition of the Rule 11 advice or the protections declared in Boykin v.

Alabama, 395 U.S. 238 (1969),” he argues nonetheless that he faced a serious

deprivation of liberty (losing his good time credit) that necessitated an explanation.

We hold that the court sufficiently explained his rights. The court explained, “By

making this admission, let me advise you of the maximum terms of imprisonment

and supervised release. The maximum term of imprisonment for supervised

release in your 2015 case is up to two years of imprisonment. . . . You can also be

placed on three years of supervised release to follow.” (Emphasis added.) The

court commented, “You have paid about as close attention as [ ] any person that

I’ve ever seen to every single question that I’ve asked you. So it’s clear that you

understood them and I thank you for your paying very close attention,” and

Barraza-Jimenez repeatedly affirmed that he understood the colloquy.

3 Second, Barraza-Jimenez argues that the court violated due process by

relying on allegedly incorrect information in determining his sentence for his

§ 1326 conviction. Specifically, Barraza-Jimenez challenges the assertion in a

presentence report that he had been previously apprehended by immigration

authorities 47 times. Barraza-Jimenez suggests that the question now before us is

whether he has shown that unreliable information “demonstrably made the basis

for [his] sentence.” See United States v. Corral, 172 F.3d 714, 716 (9th Cir. 1999).

He has not carried this burden of showing reliance by the district court. In fact, the

sentencing court explicitly disregarded the assertion concerning prior

apprehensions: “[T]he old presentence report as of that date reflected that there

were 47 prior apprehensions. But setting that aside just on what’s in front of this

Court, you have established yourself as one of the most significant violators of our

immigration laws in this Court’s history.” (Emphasis added.)

Third, Barraza-Jimenez challenges the Sentencing Guidelines calculation for

his revocation sentence. During sentencing for the original offense, for which he

was on supervised release, there had been an error in the Sentencing Guidelines

calculation: his prior criminal history category should have been V, but it was

incorrectly calculated as a VI. The court and the parties all acknowledged the

error. To correct the error, the court granted a downward departure, which placed

4 Barraza-Jimenez in the correct Guidelines range. Nonetheless, Barraza-Jimenez

argues that the sentence is improper.

It is true that “[i]n most cases a defendant who has shown that the district

court mistakenly deemed applicable an incorrect, higher Guidelines range has

demonstrated a reasonable probability of a different outcome.” Molina-Martinez v.

United States, 136 S. Ct. 1338, 1346 (2016). However, an “explanation could

make it clear that the judge based the sentence he or she selected on factors

independent of the Guidelines.” Id. at 1347. In that circumstance, prejudice is

lacking. Id. at 1346–47. Here, the court indicated that Barraza-Jimenez’s ultimate

sentence was not based on the mistaken calculation under the Guidelines. Rather,

the court explicitly sentenced Barraza-Jimenez within the appropriate range,

explaining that “the Court does make a variance from a low end of 21 to a low end

of 18 because of the circumstances explained on the record.”

AFFIRMED.