                FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                No. 12-10372
            Plaintiff-Appellee,
                                          D.C. No.
               v.                   5:11-cr-00363-DLJ-1

MANUEL GUERRERO-JASSO,
         Defendant-Appellant.             OPINION


      Appeal from the United States District Court
        for the Northern District of California
   D. Lowell Jensen, Senior District Judge, Presiding

                 Argued and Submitted
        July 8, 2013—San Francisco, California

                    Filed May 27, 2014

   Before: Ferdinand F. Fernandez, Richard A. Paez,
        and Marsha S. Berzon, Circuit Judges.

              Opinion by Judge Berzon;
           Concurrence by Judge Fernandez;
            Concurrence by Judge Berzon
2            UNITED STATES V. GUERRERO-JASSO

                           SUMMARY*


                          Criminal Law

    The panel vacated a sentence and remanded for further
proceedings in a case in which the defendant entered a plea
of guilty to an information alleging that he reentered the
country without authorization after being removed – a
violation of 8 U.S.C. § 1326 – and received a 42-month
sentence.

    The panel held that in applying the twenty-year statutory
maximum penalty under 8 U.S.C. § 1326(b) instead of the
two-year statutory maximum penalty, the district court
impermissibly relied on a fact – that the defendant’s removal
was subsequent to his aggravated felony conviction – that
was neither admitted by the defendant nor found by a jury
beyond a reasonable doubt, in violation of Apprendi v. New
Jersey, 530 U.S. 466 (2000).

    The panel rejected the government’s contention that the
defendant’s admission to the necessary conviction/removal
sequence is satisfied by documents and statements that were
not dependent on the guilty plea.

    The panel wrote that the district court incorrectly
interpreted United States v. Mendoza-Zaragoza, 567 F.3d 431
(9th Cir. 2009), as holding that a guilty plea to a § 1326
indictment which alleges multiple removal dates establishes
as a fact each removal date. Because the defendant did not

  *
    This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
           UNITED STATES V. GUERRERO-JASSO                 3

admit to the only alleged removal date that succeeded the
qualifying conviction, the panel held that the sentence of
more than two years did not rest on an admission by the
defendant, and therefore violated Apprendi.

   Distinguishing United States v. Zepeda-Martinez,
470 F.3d 909 (9th Cir. 2006), the panel concluded that the
Apprendi error was not harmless.

    Judge Fernandez concurred in the majority opinion, with
the exception of a paragraph – which he deemed brumal,
overbroad, and unnecessary – discussing why an out-of-court
confession cannot alone suffice to meet Apprendi
requirements.

    Concurring, Judge Berzon wrote separately to express her
concern that, under this court’s case law, harmless-error
review based on post-conviction factual submissions could
swallow up the Apprendi rule.


                        COUNSEL

Cynthia C. Lie (argued), Assistant Federal Public Defender,
Office of the Federal Public Defender, San Jose, California,
for Defendant-Appellant.

Anne M. Voigts, (argued) and Barbara Valliere, Assistant
United States Attorney, Office of the United States Attorney,
San Francisco, California, for Plaintiff-Appellee.
4          UNITED STATES V. GUERRERO-JASSO

                         OPINION

BERZON, Circuit Judge:

    Appellant Manuel Guerrero-Jasso’s mother brought him
to the United States from Mexico when he was eleven years
old. At age twenty-six, he was found unlawfully present in
California. He entered a plea of guilty to a one-count
information alleging that he reentered the country without
authorization after being removed — a violation of 8 U.S.C.
§ 1326 — and received a forty-two-month sentence. He
appeals the length of his sentence as exceeding the maximum
sentence allowed under the operative statute. We hold that,
in applying the twenty-year statutory maximum penalty
instead of the two-year statutory maximum penalty, the
district court impermissibly relied on facts that were neither
admitted by the Defendant nor found by a jury beyond a
reasonable doubt. See Apprendi v. New Jersey, 530 U.S. 466
(2000). Accordingly, we vacate the sentence, and remand for
further proceedings consistent with this opinion.

                              I.

    A person convicted under 8 U.S.C. § 1326 is ordinarily
subject to a fine and a maximum term of two years
imprisonment. See United States v. Mendoza-Zaragoza,
567 F.3d 431, 433 (9th Cir. 2009). “Section 1326(b),
however, increases the maximum sentence to twenty years if
the alien’s removal ‘was subsequent to a conviction for
commission of an aggravated felony.’” Id. (quoting 8 U.S.C.
§ 1326(b)(2)). As the language of § 1326(b)(2) makes plain,
for the penalty enhancement to apply, the removal on which
the conviction is predicated must have occurred after the
            UNITED STATES V. GUERRERO-JASSO                  5

aggravated felony conviction. See United States v. Covian-
Sandoval, 462 F.3d 1090, 1097 (9th Cir. 2006).

    Guerrero-Jasso was charged with one count of being an
alien “found in” the United States in violation of 8 U.S.C.
§ 1326. The government’s information alleged that he had
been removed from the United States “on or about April 7,
2009, April 16, 2009, and January 19, 2011.” Although the
information did not so specify, Guerrero-Jasso had been
convicted on May 20, 2010 of an aggravated felony, namely,
possession of a controlled substance for sale. 8 U.S.C.
§ 1101(a)(43)(B); see Rendon v. Mukasey, 520 F.3d 967, 976
(9th Cir. 2008).

    Guerrero-Jasso pled guilty to the § 1326 count without a
plea agreement. In an Application for Permission to Enter
Plea of Guilty, he admitted that “[o]n or about February 12,
2011, [he] was found in . . . the United States after having
previously been removed” and without authorization to re-
enter the country. The Application acknowledged that his
counsel informed him that the maximum sentence was twenty
years. He did not admit the dates of the prior removals.

    At the plea colloquy, Guerrero-Jasso affirmed his
understanding that he could face up to twenty years in prison.
Guerrero-Jasso also affirmed that the Application contained
a “true statement of what [he] did.” He did not otherwise
admit any facts alleged in the information, including any of
the prior removal dates. The government then proffered that
Guerrero-Jasso had been removed “on or about April 7, 2009,
April 16, 2009, and January 19, 2011.” Immediately
thereafter, the district court turned to Guerrero-Jasso and
stated: “Now, this is a case that is proceeding on the basis of
an information. That means you didn’t go to the grand jury;
6           UNITED STATES V. GUERRERO-JASSO

do you understand that?” Guerrero-Jasso responded that he
understood. The district court then accepted Guerrero-Jasso’s
guilty plea, without asking him to admit to any of the alleged
dates of removal.

    Prior to sentencing, the probation office prepared a
presentence report, “PSR,” which listed each of the three
alleged removal dates. The PSR also stated that “[o]n March
28, 2011 . . . Guerrero-Jasso provided a written statement” to
an Immigration and Customs Enforcement agent “attesting to
his . . . prior deportations.” The PSR recommended that
because Guerrero-Jasso had reentered the United States after
being removed in January 2011 following his 2010
aggravated felony conviction, the maximum sentence was
twenty years. See 8 U.S.C. § 1326(b)(2).

    In his sentencing memorandum, Guerrero-Jasso objected
to the PSR on the ground that his guilty plea “admitt[ed] only
the facts necessary for a bare conviction” under 8 U.S.C.
§ 1326, not the “sentence-enhancing fact[ ]” that he had been
removed after conviction for an aggravated felony. After the
government obtained three continuances of the sentencing
hearing, it introduced three execution of warrant forms,
indicating that an immigration officer had witnessed
Guerrero-Jasso’s removal on each of the three dates in
question.

     At the final sentencing hearing, the district court stated
that it was not relying on the warrants of removal (although
it rejected the defense’s motion to strike those documents).
Instead, the court ruled that Guerrero-Jasso could be subject
to the enhanced twenty-year maximum sentence because he
had sufficiently admitted to all the dates of removal by
pleading guilty to the information. Accordingly, Guerrero-
            UNITED STATES V. GUERRERO-JASSO                   7

Jasso was sentenced to forty-two months, considerably more
than the twenty-four-month maximum penalty for violations
of § 1326 without the enhancement.

                             II.A

    Guerrero-Jasso’s sole contention on appeal is that under
Apprendi, it was error to apply 8 U.S.C. § 1326(b)’s increased
statutory maximum, because his guilty plea to the essential
elements of 8 U.S.C. § 1326(a) did not establish that he had
been removed after an aggravated felony conviction.

      The rule established in Apprendi requires that, “‘[o]ther
than the fact of a prior conviction, any fact that increases the
penalty for a crime beyond the prescribed statutory maximum
. . . be submitted to a jury, and proved beyond a reasonable
doubt,’” Mendoza-Zaragoza, 567 F.3d at 434 (quoting
Apprendi, 530 U.S. at 490) (first alteration in original), or
“admitted by the defendant,” United States v. Zepeda-
Martinez, 470 F.3d 909, 910 (9th Cir. 2006). As applied to
§ 1326, the Apprendi principle requires that to trigger
§ 1326(b)’s twenty-year-maximum sentence, facts
establishing that the removal occurred after an aggravated
felony conviction must be admitted by the defendant or
proved to a jury.

    Such facts can be established in one of two ways. First,
the defendant can admit to, or the jury could find, the
requisite sequence — i.e., the “fact that [the defendant] had
been removed after his conviction.” Mendoza-Zaragoza,
567 F.3d at 434 (emphasis in original). In that event, the
precise date of the post-conviction removal need not be
proven or admitted. Id. Alternatively, the date of the
defendant’s post-conviction removal can be admitted by the
8           UNITED STATES V. GUERRERO-JASSO

defendant or proven to a jury. As the date of a prior
conviction need not itself be proven beyond a reasonable
doubt, see United States v. Pacheco-Zepeda, 234 F.3d 411,
414 (9th Cir. 2000) (explaining that Apprendi preserved the
rule of Almendarez-Torres v. United States, 523 U.S. 224
(1998), and “carved out an exception [to the Apprendi rule]
for ‘prior convictions’”), admission or proof of the removal
date is sufficient to establish eligibility for the § 1326(b)
enhancement. Such admission or proof allows for a
constitutionally proper determination of “whether the
removal had followed the [qualifying] conviction in time.”
Mendoza-Zaragoza, 567 F.3d at 434 (emphasis in original)
(quoting United States v. Salazar-Lopez, 506 F.3d 748, 751
(9th Cir. 2007)).

    In this case, however, Guerrero-Jasso entered a guilty plea
to a criminal information that listed three separate removal
dates, in the conjunctive. “[W]hen either ‘A’ or ‘B’ could
support a conviction, a defendant who pleads guilty to a
charging document alleging ‘A and B’ admits only ‘A’ or
‘B.’” Young v. Holder, 697 F.3d 976, 988 (9th Cir. 2012) (en
banc). We therefore treat Guerrero-Jasso’s guilty plea as
admitting only that one of the three removal dates is correct,
not that all are correct.

    As it turns out, just one of the three removal dates, the
removal on January 19, 2011, occurred after May 20, 2010,
the date of the qualifying conviction. Guerrero-Jasso did not
admit that he was removed on the 2011 date; he only
admitted that he was removed on one of the three dates
alleged, not which one. So the entry of the guilty plea alone
could not justify application of the § 1326(b) enhancement.
See id. at 987–88. And it was the “government[’s] . . . burden
‘at the plea colloquy to seek an explicit admission of any
            UNITED STATES V. GUERRERO-JASSO                  9

unlawful conduct it [sought] to attribute to the defendant,’”
United States v. Hunt, 656 F.3d 906, 912 (9th Cir. 2011)
(quoting United States v. Thomas, 355 F.3d 1191, 1199 (9th
Cir. 2004)), here, the fact of a removal date subsequent to the
qualifying conviction. The government sought no such
admission, and Guerrero-Jasso did not make one.

     This much the government concedes, acknowledging both
that, “to support the application of Section 1326(b)’s penalty
provision, Guerrero-Jasso had to admit the January 19, 2011[]
removal date,” and that “[h]is plea to the conjunctively[]
phrased information does not provide a specific admission to
that single removal date.” The government goes on to base
its opposition to Guerrero-Jasso’s appeal on three factors not
dependent on the guilty plea itself: First, the government
maintains that Guerrero-Jasso constructively accepted the
facts contained in the PSR; second, the government points to
Guerrero-Jasso’s post-arrest, written confession; and third,
the government relies upon the court’s statement during the
plea colloquy that Guerrero-Jasso faced a twenty-year
maximum sentence. According to the government, these
documents and statements have the same legal effect as an
express admission during a plea colloquy. We disagree.

     First, as to the PSR, Guerrero-Jasso was not presented
with the PSR’s alleged removal dates until after his
conviction, and never specifically acceded to them. “When
a conviction is obtained through a guilty plea rather than a
jury verdict,” it is the government’s burden “to seek an
explicit admission of any unlawful conduct it seeks to
attribute to the defendant” for Apprendi purposes. Hunt,
656 F.3d at 912 (internal quotation marks and citations
omitted). Guerrero-Jasso’s non-objection at sentencing to
facts recited in the PSR cannot meet this standard.
10         UNITED STATES V. GUERRERO-JASSO

    With regard to the “post-arrest confession” cited by the
government, the confession itself is not in the record. The
government cites the PSR as support for its interpretation of
the confession, but the PSR states only that “Mr. Guerrero-
Jasso provided a written statement attesting to his illegal
status [and] prior deportations.” The PSR’s recitation of the
confession thus neither specifies the removal dates nor
specifies that Guerrero-Jasso admitted any particular removal
dates.

     At any rate, an out-of-court confession cannot alone
suffice to meet the Apprendi trial-by-jury and beyond-a-
reasonable-doubt requirements with regard to facts essential
to establishing the maximum penalty for the crime of
conviction. If it could, there would be no need ever to have
a trial or an in-court plea and admission in a case in which
there was an out-of-court confession — obviously a
nonsensical proposition, even where the admissibility (as
opposed to the content) of the out-of-court confession is not
at issue. We treat defendant admissions as analogous to jury
findings beyond a reasonable doubt for Apprendi purposes
only when those admissions are made with knowledge of the
penal consequences that attend those admissions. See United
States v. Cazares, 121 F.3d 1241, 1247 (9th Cir. 1997)
(noting that “to attribute to a defendant an admission which
was never subject to a plea colloquy under Fed. R. Crim. P.
11 would undermine the rule’s prophylactic purposes”).

    Finally, Guerrero-Jasso’s acknowledgment of a twenty-
year statutory maximum sentence during the plea colloquy
was not an admission of the conviction/removal sequence,
nor of the dates of removal. During a plea colloquy, judges
are not required “to predict the precise maximum penalty at
sentencing. Instead, the court need only tell defendants the
            UNITED STATES V. GUERRERO-JASSO                  11

maximum sentence that they could possibly face.” Garcia-
Aguilar v. U.S. Dist. Court for the S. Dist. of Cal., 535 F.3d
1021, 1025 (9th Cir. 2008) (internal citation omitted).

   Here, it was entirely proper for the court to ensure
Guerrero-Jasso was aware of the twenty-year penalty. At that
point in the colloquy, it was not yet clear whether the district
court would require Guerrero-Jasso to admit the 2011
removal date as a condition of accepting his plea. So the
maximum sentence Guerrero-Jasso could “possibly” face
going into the plea colloquy was twenty years: His
acknowledgment that he was advised of this possibility is not
an admission of the facts essential to establish the
applicability of the twenty-year maximum sentence.

                              B.

    As none of the government’s current arguments are
adequate to sustain the conclusion that Guerrero-Jasso
admitted to the necessary sequencing facts, we must assess
the district court’s quite different rationale for adopting the
enhanced twenty-year maximum. In deciding to sentence
Guerrero-Jasso in accordance with the twenty-year statutory
maximum, the district court read Mendoza-Zaragoza,
567 F.3d 431, as holding that a guilty plea to a § 1326
indictment which alleges multiple removal dates establishes
as a fact each removal date. That interpretation of Mendoza-
Zaragoza is not correct.

    Mendoza-Zaragoza was charged with removal dates, but
not with a prior conviction. He sought to enter a guilty plea
that did not “admit any facts that would subject him to
§ 1326(b)’s sentence enhancement.” Id. at 433. The district
court “refused to accept” such a plea, and, as a condition of
12          UNITED STATES V. GUERRERO-JASSO

accepting the plea, required the defendant to “admit[] his
removal dates.” Id. On appeal, we held that the district court
did not abuse its discretion in conditioning acceptance of the
plea on the detailed admission, because the indictment
“alleged facts (his removal dates) sufficient to support the
sentence enhancement under § 1326(b).” Id. at 437.

     More specifically, Mendoza-Zaragoza held, first, “that an
indictment will support the § 1326(b) sentence enhancement
if it alleges a removal date.” Id. at 434. That is true as far as
the sufficiency of the indictment is concerned. Although
Apprendi requires that “any fact . . . that increases the
maximum penalty for a crime must be charged in an
indictment,” 530 U.S. at 476 (internal quotation marks
omitted), Almendarez-Torres excepts prior convictions from
all of Apprendi’s requirements, including the requirement that
facts essential to establishing penalty exposure be alleged in
the indictment, Almendarez-Torres, 523 U.S. at 226–27.
Thus, for purposes of a § 1326(b) enhancement, no allegation
in the indictment of the date of the pre-removal conviction is
necessary: “[A]n indictment will support a 20-year maximum
sentence under § 1326(b) if it alleges a removal date, thus
enabling a sentencing court to determine whether the
conviction predated the defendant’s removal to establish the
necessary sequence.” Mendoza-Zaragoza, 567 F.3d at 436.

    In addition to an indictment alleging facts essential to
establish the maximum sentence, Apprendi mandates proof to
a jury of those essential facts beyond a reasonable doubt, or
a clear admission to the pertinent fact, adequate to waive the
constitutional proof requirement. As to this aspect of
Apprendi, Mendoza-Zaragoza held only that a district court
has the discretion to require a defendant to admit a specific
removal date before accepting a guilty plea to a § 1326
            UNITED STATES V. GUERRERO-JASSO                  13

charge, thereby satisfying the Apprendi proof requirements.
Id. at 437.

    The district court in this case accepted Guerrero-Jasso’s
plea without requiring him to admit to the removal date
essential to the enhanced sentence. As Guerrero-Jasso did not
admit to the 2011 removal date, the district court’s sentence
of more than two years, unlike the sentence in Mendoza-
Zaragoza, did not rest on an admission by the defendant, and
so violated Apprendi.

                              III.

    Not all violations of Apprendi warrant reversal. A
properly preserved Apprendi error is reviewed for harmless
error, see Washington v. Recuenco, 548 U.S. 212, 222 (2006),
under the standard articulated in Neder v. United States,
527 U.S. 1 (1999). See Zepeda-Martinez, 470 F.3d at 913.

    Guerrero-Jasso preserved his Apprendi claim by expressly
stating at sentencing that he had never admitted the January
2011 removal date and arguing that his sentence thus could
not exceed two years. The Apprendi error was, of course, a
constitutional one. We must therefore reverse unless we
“find[] beyond a reasonable doubt that the result ‘would have
been the same absent the error.’” Zepeda-Martinez, 470 F.3d
at 913 (quoting Neder, 527 U.S. at 19); see Chapman v.
California, 386 U.S. 18 (1967). “[W]here the record contains
‘overwhelming’ and ‘uncontroverted’ evidence supporting an
element of the crime, the error is [constitutionally] harmless.”
Zepeda-Martinez, 470 F.3d at 913 (quoting Neder, 527 U.S.
at 17, 18).
14          UNITED STATES V. GUERRERO-JASSO

    The government asks us to approve Guerrero-Jasso’s
sentence on the basis of (1) a warrant of removal it introduced
post-conviction and (2) Guerrero-Jasso’s alleged acceptance
of the PSR. The government maintains that this post-
conviction evidence proves any constitutional error harmless
beyond a reasonable doubt, arguing that the circumstances of
this case are indistinguishable from the facts of Zepeda-
Martinez.

     In Zepeda-Martinez, a warrant of removal showed
“Zepeda was ordered removed on June 8, 2004 and was
physically removed . . . on foot on June 17, 2004.” Id. The
warrant included “Zepeda’s name, signature, fingerprint, and
immigration case number, as well as the name, title, and
signature of an immigration officer who witnessed the
removal.” Id. Noting that “Zepeda did not dispute the
authenticity of this document,” and that “Zepeda himself had
offered the first page of the same warrant as an exhibit” pre-
trial, the court concluded that the warrant was “sufficient
alone to support a finding of removal beyond a reasonable
doubt.” Id. As a result, the evidence of the essential removal
date was “overwhelming” as well as “uncontroverted,”
thereby satisfying the constitutional harmless error standard.
Id.

     The record before this court includes a somewhat similar
document. But unlike the document in Zepeda-Martinez, the
first page of which was filed pre-trial by the defendant
himself, Guerrero-Jasso has never vouched for the accuracy
and reliability of this document. Indeed, unlike Zepeda-
Martinez, who “did not contest . . . the authenticity of the
warrant of removal,” Hunt, 656 F.3d at 914, Guerrero-Jasso
made a timely objection that the removal warrant should not
be admitted, arguing that it was aimed solely at the appellate
           UNITED STATES V. GUERRERO-JASSO                 15

court’s harmless-error determination, was “inadequately
authenticated,” “insufficient,” and included only the
execution-of-warrant documentation, “not the warrant itself.”
The district court never resolved these objections, because it
found — erroneously, as we have explained — that Guerrero-
Jasso had adequately admitted to the pertinent removal date.

    We thus disagree that the facts before us are
indistinguishable from those in Zepeda-Martinez, and cannot
conclude beyond a reasonable doubt, on the record before us,
that the Apprendi error in Guerrero-Jasso’s case was
harmless.

    By objecting to the execution-of-warrant form as
inauthentic and incomplete, Guerrero-Jasso challenged the
government’s belated evidentiary basis for proving his
removal date. The government’s evidence cannot, therefore,
be described as “uncontroverted.” See Black’s Law
Dictionary (9th ed. 2009) (defining “controvert” as “[t]o
dispute or contest; esp. to deny (as an allegation in a
pleading) or oppose in argument”). And we cannot say
beyond a reasonable doubt that a jury would necessarily have
relied on this evidence, even if it were admitted as prima
facie authentic.

    In Hunt, we refused to declare an Apprendi error
harmless, in part because, as the essential, omitted fact was
“never litigated,” the “plea and sentencing proceedings . . .
provide[d] an inadequate record” for our harmless-error
review. 656 F.3d at 915. In so concluding, we noted that:

           If Hunt’s case had proceeded to trial, he
       could have raised Sixth Amendment or
       evidentiary objections, he could have
16         UNITED STATES V. GUERRERO-JASSO

       presented expert testimony to counter the
       opinions of Detective Feliciano, he could have
       cross-examined the various civilian and
       government witnesses called by the
       government, and he could have decided to
       testify to tell his side of the story.

Id. at 916. Here, had Guerrero-Jasso had the opportunity to
challenge the authenticity of the warrant at trial, he could
have pointed out the absence of live testimony from the
immigration officer who signed the execution of warrant, as
well as the absence of any testimony as to the form’s chain of
custody. Cf. United States v. Estrada-Eliverio, 583 F.3d 669,
671–73 (9th Cir. 2009) (holding that the government made a
prima facie showing of authenticity of a warrant of removal
where the immigration agent who maintained the defendant’s
immigration file testified at trial as to his record-keeping
practices and that the warrant admitted was a true and correct
copy of the warrant in the defendant’s file). On those bases,
Guerrero-Jasso could have argued that there was not proof
beyond a reasonable doubt that the document was what it
purported to be.

    The government contends that Guerrero-Jasso’s
objections did not sufficiently controvert the government’s
evidence, because he did not meaningfully place the accuracy
of the document into dispute and failed to “raise[] evidence
sufficient to support a contrary finding.” Neder, 527 U.S. at
19.

    We disagree that Guerrero-Jasso’s challenge to the
authenticity of the government’s evidence was not
“meaningful.”       By challenging the document as
unauthenticated, he disputed the government’s assertion that
            UNITED STATES V. GUERRERO-JASSO                  17

the document was what the government said it was. This
challenge is a meaningful one, as it goes to the likelihood that
a jury would find the necessary removal date beyond a
reasonable doubt. Cf. Zepeda-Martinez, 470 F.3d at 913. In
similar circumstances, Hunt refused to characterize the
government’s evidence of a post-arrest confession as
“overwhelming” evidence of an essential, omitted fact, where
the defendant “presented non-frivolous arguments contesting
the reliability of the statement.” 656 F.3d at 915.

     More fundamentally, we reject the government’s
suggestion that a defendant in Guerrero-Jasso’s position has
an affirmative obligation to introduce evidence post hoc to
defeat the government’s harmlessness argument. The
government cites the statement in Zepeda-Martinez that a
constitutional “error is not harmless if ‘the defendant
contested the omitted element and raised evidence sufficient
to support a contrary finding,’” 470 F.3d at 913 (quoting
Neder, 527 U.S. at 19), as support for such a requirement.
But when placed in its proper context, this statement does not
obligate a defendant to introduce evidence during sentencing
to establish that the government’s error was harmless.
Zepeda-Martinez was quoting Neder, in which the Court
explained that, to “safeguard[] the jury guarantee,” courts will
often need to “conduct a thorough examination of the record”
before concluding that a constitutional error was harmless.
527 U.S. at 19. Neder went on to explain: “If . . . the court
cannot conclude beyond a reasonable doubt that the jury
verdict would have been the same absent the error — for
example, where the defendant contested the omitted element
and raised evidence sufficient to support a contrary finding —
it should not find the error harmless.” Id. (emphasis added).
18          UNITED STATES V. GUERRERO-JASSO

    The example provided in Neder is not the only way a
constitutional error can be ruled not harmless; it is one way.
Where, as here, there was no trial but a guilty plea, and the
evidence is introduced post-conviction by the government
only to demonstrate harmlessness, it would fundamentally
undermine the Apprendi protections to require the defendant
affirmatively to present evidence to counter facts that were
never properly established in accord with Apprendi in the first
place.

    Finally, the government asserts that any constitutional
error was harmless because Guerrero-Jasso “accepted” the
prior removal dates as expressed in the PSR. But in his
sentencing memorandum, Guerrero-Jasso continued to assert
that his plea “admitted only the facts necessary for a bare
conviction,” not the “sentence-enhancing fact” of a specific
removal date, and he objected to the PSR’s sentencing
calculations, insisting that the two-year statutory maximum
cabined his sentence. At sentencing, Guerrero-Jasso
continued to object to the enhancement and did not
specifically accede to the PSR’s recitation of the dates of
removal. In light of Guerrero-Jasso’s challenges to the
removal warrant and his continued protestations at
sentencing, the lack of an express objection to the removal
dates recited in the PSR does not alone satisfy the
“overwhelming and uncontroverted” evidentiary standard in
this case.

    For these reasons, the sentence must be vacated, and the
case remanded. On remand, the district court must sentence
Guerrero-Jasso in accordance with the statutory maximum
            UNITED STATES V. GUERRERO-JASSO                 19

penalty applicable to the offense he admitted when he entered
his guilty plea. See Hunt, 656 F.3d at 917.

   VACATED and REMANDED.



FERNANDEZ, Circuit Judge, concurring:

    I concur in the majority opinion, with the exception of the
paragraph that commences at line 10 on page 10, which I
believe is brumal, overbroad, and unnecessary to our
decision. On the record in this case, the result we reach is
compelled without that embellishment.



BERZON, Circuit Judge, concurring:

    I write separately to express my concern that, under our
case law, harmless-error review based on post-conviction
factual submissions could swallow up the rule of Apprendi v.
New Jersey, 530 U.S. 466 (2000). We need to re-think our
doctrine on this important point.

                              I.

   First, some context:

    After Guerrero-Jasso filed a sentencing memorandum
objecting to the Pre-Sentence Report’s conclusion that he was
subject to a mandatory twenty-year statutory maximum
sentence, the government asked for more time to check
Guerrero-Jasso’s assertion that he had not, in fact, admitted
20         UNITED STATES V. GUERRERO-JASSO

each date of removal alleged in the conjunctively phrased
information. Guerrero-Jasso agreed to continue sentencing to
give the government the time it sought. After receiving the
transcript of the change of plea proceeding (which confirmed
that Guerrero-Jasso did not admit to each date of removal) the
government “request[ed] additional time to compare [the]
transcripts with case law.” The district court granted the
government’s request. The day before the continued
sentencing hearing, the government filed a “Supplemental
Exhibit” in support of its sentencing memorandum. The
exhibit comprises three one-page documents, each entitled
“Warrant of Removal/Deportation” and each purporting to
show that Guerrero-Jasso was removed to Mexico on the date
indicated.

   At sentencing, Guerrero-Jasso renewed his position that
he was not subject to the twenty-year maximum penalty
because he had not admitted the requisite removal date. The
government argued, and the court responded, as follows:

       THE GOVERNMENT: [T]here’s enough in
       the record for the Court to find that the date
       was proven. The Supreme Court says that any
       Apprendi error is reviewed for harmlessness.

       THE COURT: That’s when the Circuit gets
       their hands on it — I mean after I’m through.
       I mean, if you tell me that if I commit an
       error, “It’s okay. Don’t worry about it
       because the Ninth Circuit is not going to pay
       any attention to it.” To me that doesn’t
       impress me in terms of whether I should
       commit an error or not. So I don’t think I
       should be committing any errors even if I
             UNITED STATES V. GUERRERO-JASSO                         21

         know that if I commit an error, the Ninth
         Circuit isn’t going to care.

         THE GOVERNMENT: The cases that say
         Apprendi error is reviewed for harmlessness
         don’t draw a distinction between whether the
         district court judge is aware of this error or
         not. What they ask the district court to
         consider is whether there is overwhelming and
         uncontroverted evidence of, in this case, the
         fact of the prior deport.

             And the Government submitted exhibits to
         this Court that prove the prior deport, the
         warrants of deport. The Government notes
         that the PSR — the Court is allowed to look at
         the failure to object to [the date of] deport in
         the PSR . . . .

             And maybe most tellingly, the defendant
         is never telling this Court he wasn’t deported
         on those dates. There’s no chance that the
         result in this Court would be different. And
         that’s what Apprendi error asks this Court and
         asks the Ninth Circuit to look at: Would the
         result be different if the error this Court is
         worried about committing didn’t occur? In
         this case the result wouldn’t be different.1



  1
    The government also pointed to Guerrero-Jasso’s failure to object to
the court’s representation that he was subject to the twenty-year maximum
penalty as an admission of post-conviction removal. For the reasons
expressed in the majority opinion, Guerrero-Jasso’s preliminary
22          UNITED STATES V. GUERRERO-JASSO

Combined with the timing of the government’s evidentiary
submission, this exchange makes it obvious that the sole point
of introducing the warrants of removal was to “prove” the
essential removal date, thereby justifying a twenty-year
statutory ceiling.

    Even though the district court’s sentence violated
Apprendi, the government asks us to uphold the sentence on
the basis of the “warrant of removal/deportation” purporting
to show that Guerrero-Jasso was removed to Mexico on
January 19, 2011. As our opinion in this case indicates, there
is support in this court’s case law for permitting such post-
conviction governmental submissions as proof of Apprendi
harmlessness — although, as the result reached in this case
demonstrates, such after-the-fact submissions can establish
Apprendi harmlessness only in limited circumstances.

    One would think that a constitutional protection designed
to assure that juries rather than judges decide facts essential
to determining the potential maximum sentence could never
be satisfied by post-conviction evidentiary submissions,
reviewed by a judge and directed at demonstrating that had
the submissions been introduced at a jury trial, a jury would
have found the facts in the government’s favor beyond a
reasonable doubt. Such an approach is entirely different from
the usual harmless-error analysis, which reviews the record
of an actual trial to determine what the actual jury in that case
would have decided on the record before it. See, e.g.,
Chapman v. California, 386 U.S. 18, 25–26 (1967). It is,
after all, out of respect for “the jury-trial guarantee,” that the
Supreme Court “instructs . . . reviewing court[s] to consider


acceptance of the court’s maximum-sentence representation was
insufficient for that purpose.
            UNITED STATES V. GUERRERO-JASSO                   23

. . . not what effect [a] constitutional error might generally be
expected to have upon a reasonable jury, but rather what
effect it had upon the guilty verdict in the case at hand.”
Sullivan v. Louisiana, 113 S. Ct. 2078, 2081 (1993).

     This case, of course, involved a guilty plea, so there was
no jury trial. But that circumstance makes the post-
conviction submission of evidence in an effort to demonstrate
harmless error even more questionable: The defendant
waived a jury trial, so there is no pre-conviction factual
record at all. To create one after the fact is not only to
undermine Apprendi but to broaden the defendant’s waiver,
by allowing courts to make factual determinations concerning
a trial that never occurred.

    Here, for example, the government neglected to elicit
necessary admissions at the plea hearing. How can we, or the
district court, know that it would have done better had a trial
occurred — that is, that it would properly have submitted the
necessary removal documents? And why is Guerrero-Jasso’s
waiver of jury trial to be taken as waiving a jury trial as to
that question, which did not arise until after the waiver?

    This state of affairs leads me to wonder: How did we get
here? And can, and should, we reconsider?

                               II.

    A review of our case law shows that we have not always
treated Apprendi’s protections so carelessly:

    •   United States v. Tighe, 266 F.3d 1187, 1195 (9th Cir.
        2001), held that if the fact of a juvenile adjudication
        is used to increase the maximum statutory penalty,
24           UNITED STATES V. GUERRERO-JASSO

         that fact must be charged in an indictment and found
         by a jury beyond a reasonable doubt. “Because Tighe
         properly preserved his . . . Apprendi claim for appeal,
         his sentence [could not] stand unless the district
         court’s constitutional error was harmless beyond a
         reasonable doubt.” Id. We then held, without further
         inquiry, that the error in that case was not harmless,
         simply because the defendant’s sentence exceeded
         “the applicable statutory maximum.” Id. Like
         Guerrero-Jasso, Tighe’s conviction was the result of
         a guilty plea. Id. at 1190.

     •   United States v. Velasco-Heredia, 319 F.3d 1080,
         1085–86 (9th Cir. 2003), considered whether an
         Apprendi error resulting from judicial fact-finding as
         to drug quantity was harmless. The drug quantity
         found at sentencing increased what was otherwise a
         thirty-seven-to-forty-six month guidelines range and
         a statutory maximum of five years, to a mandatory
         five-year sentence and a maximum forty-year
         sentence. Id. at 1083–84, 1086. We reasoned that
         therefore “not only was the error not harmless, it was
         demonstrably harmful.” Id. at 1086. We found it
         “too clever by half to permit the government in the
         guilt phase of a case to prove beyond a reasonable
         doubt that only one kilogram of marijuana was
         involved in the offense, and then at sentencing to
         prove 101 kilograms by a preponderance of the
         evidence and claim that such a finding . . . requires
         the maximum sentence of five years.” Id. Rather, in
         our view, the increased penalty provision could not
         apply “unless and until 100 kilograms or more of
         marijuana are properly on the sentencing table,”
         which, “[a]fter Apprendi, . . . cannot happen until the
        UNITED STATES V. GUERRERO-JASSO                    25

    jury, or the court in a bench trial, finds beyond a
    reasonable doubt that this is the quantity involved in
    the violation.” Id. Recognizing that “the Fifth
    Amendment to our Constitution does not permit
    Velasco-Heradia to be tried twice for the same
    offense[,]” we vacated his sentence and remanded for
    resentencing in accordance with an unspecified drug
    quantity. Id. at 1086–87.

•   United States v. Banuelos, 322 F.3d 700, 705 (9th Cir.
    2003), held that the district court erred by making a
    finding, by a standard lower than beyond a reasonable
    doubt, as to the amount of drugs for which a
    defendant involved in a drug conspiracy was
    personally responsible, where the finding increased
    the defendant’s maximum sentence exposure. The
    defendant in that case had entered a guilty plea to a
    drug conspiracy charge, but he never waived his right
    to have a jury determine the drug quantity attributable
    to him, and he refused to waive the beyond-a-
    reasonable-doubt standard as to drug quantity. Id. at
    703. We held that, “because Baneuelos did not
    allocute to drug quantity at the change of plea hearing
    or admit to drug quantity in a written plea
    agreement,” he was properly convicted of only the
    “general offense . . . charged in the indictment . . . the
    only offense for which there was a factual basis for
    conviction.” Id. at 706–07. Because he challenged
    his sentence but not his conviction, we explained that
    the proper course on remand was for the district court
    to resentence him “subject to the maximum sentence
    supported by the facts found by the [fact-finder]
    beyond a reasonable doubt,” — the facts necessarily
    included in his plea to the general drug-conspiracy
26           UNITED STATES V. GUERRERO-JASSO

         offense. Id. at 706 (internal quotation marks omitted;
         alteration in original). And, although Banuelos did
         not raise the issue on appeal, we noted that “[t]he
         court’s finding of drug quantity attributable to
         Banuelos by any standard, without first advising
         Banuelos that he had a right to jury determination of
         that fact beyond a reasonable doubt, also violated
         Apprendi.” Id. at 705 n.3.

         Finally, we rejected the suggestion that the court
         should scour the record at sentencing to determine if
         the error was harmless beyond a reasonable doubt.
         Id. at 706 & n.4. As “the very finding of an Apprendi
         violation means that it was improper for the district
         court to determine drug quantity attributable to
         Banuelos at sentencing without first informing
         Banuelos of his right to a jury determination of drug
         quantity to him beyond a reasonable doubt[,]” we
         deemed ourselves “prohibit[ed] . . . from considering
         admissions made at sentencing in evaluating an
         Apprendi violation for harmless error.” Id. at 706 n.4.

     •   United States v. Thomas, 355 F.3d 1191 (9th Cir.
         2004), followed Banuelos and Velasco-Heradia. In
         that case, the defendant pled guilty to a drug offense,
         but refused to accept responsibility for any specific
         drug quantity during the plea colloquy. Id. at
         1192–93. Nevertheless, the judge sentenced him in
         accordance with a statutory maximum correlating to
         a specified drug quantity. Id. at 1194. Because the
         error increased the defendant’s guidelines offense
         level and required a mandatory minimum sentence,
         we deemed the error “clearly harmful.” Id. at 1201.
         We rejected the government’s argument that, on
        UNITED STATES V. GUERRERO-JASSO                  27

    remand, the judge could impose a sentence in
    accordance with the elevated statutory maximum
    penalty if the judge found the drug quantity beyond a
    reasonable doubt: As the defendant “did not . . . admit
    to possessing any specific quantity, nor . . . knowingly
    waive his right under Apprendi . . . to have a jury
    determine quantity beyond a reasonable doubt,” we
    held, “the district judge cannot determine any
    particular drug quantity that would affect the
    maximum statutory sentence to which [the defendant]
    is exposed.” Id. at 1202.

•   United States v. Patterson, 381 F.3d 859 (9th Cir.
    2004), considered the effect of a guilty plea to
    manufacturing an unspecified amount of marijuana on
    the defendant’s sentence. The defendant entered, and
    the district court accepted, a guilty plea that did not
    admit to a specified amount of marijuana, with the
    understanding that the judge would determine the
    amount of marijuana at the time of sentencing. Id. at
    861–62. After the defendant entered his plea, but
    before sentencing, Apprendi issued, holding such
    judicial determinations unconstitutional, and the
    district court, on the government’s motion, vacated
    the defendant’s plea. Id. at 862. The defendant was
    then tried and convicted by a jury, and the jury made
    a finding as to the specific drug quantity. Id. This
    court reversed, reasoning that jeopardy attached the
    moment the defendant entered and the court accepted
    the guilty plea; that the court was not free to vacate
    the plea on the government’s motion; and that the trial
    therefore violated double jeopardy principles. Id. at
    864–65. Although it would have been a simple matter
    to review the trial record to determine whether there
28           UNITED STATES V. GUERRERO-JASSO

         was evidence to support a finding that the Apprendi
         violation was harmless beyond a reasonable doubt, we
         instead remanded with instructions to resentence the
         defendant in accordance with the maximum penalty
         allowable under the plea that he entered. Id. at 866.

     •   Finally, United States v. Lococo, 514 F.3d 860, 865
         (9th Cir. 2007), held that a district court violated
         Apprendi by sentencing a defendant according to the
         statutory maximum penalty for knowing involvement
         in a conspiracy to distribute crack cocaine, because
         the defendant admitted only to knowing involvement
         in the conspiracy’s distribution of powder cocaine
         when he entered his guilty plea. In remanding for
         resentencing, we cited our prior decision in Banuelos,
         and instructed the district court that it could only base
         the defendant’s sentence on the amount of powder
         cocaine involved in the conspiracy, “because it is only
         powder cocaine that Lococo admits he knew about.”
         Id. at 866.

    Our interpretations of the Apprendi harmless-error review
standard in these cases do not correspond with the
“overwhelming and uncontroverted” standard described in
Neder v. United States, 527 U.S. 1, 9 (1999), outside the
Apprendi context, and adopted in United States v. Zepeda-
Martinez, 470 F.3d 909, 913 (9th Cir. 2006), and United
States v. Hunt, 656 F.3d 906, 913 (9th Cir. 2011), as
applicable in Apprendi cases. The difference, in my view,
rests largely on a critical distinction between post-conviction,
harmless-error review of a preserved Apprendi claim and
plain-error review of an unpreserved claim. See United States
v. Minore, 292 F.3d 1109, 1122 n.12 (9th Cir. 2002).
               UNITED STATES V. GUERRERO-JASSO                              29

    United States v. Minore considered two potential
methods, first outlined by United States v. Nordby, 225 F.3d
1053, 1060 (9th Cir. 2000), overruled in part by United States
v. Buckland, 289 F.3d 558, 567–68 (9th Cir. 2002) (en banc),
for reviewing an unpreserved Apprendi violation for plain
error. 292 F.3d at 1121–22. We termed the two Nordby
methods the “less stringent” approach and the “more
stringent” approach. Id. The more stringent approach
followed Neder, asking “whether it was clear beyond a
reasonable doubt that a rational jury would have found the
defendant guilty absent the error.” Id. at 1122 (internal
quotation marks omitted). We held the more stringent
approach properly applicable to plain-error cases, where it is
the defendant’s burden to prove the error “affected his
substantial rights.”2 Id. at 1123; accord United States v.
Covian-Sandoval, 462 F.3d 1090, 1098 (9th Cir. 2006);
Buckland, 289 F.3d at 569–70 (9th Cir. 2002) (concluding
that defendant’s substantial rights were not affected by
Apprendi error in light of the unchallenged amount of
narcotics attributed to him and therefore refusing to reverse
under plain error review).



  2
     Similarly, United States v. Cotton held that failure to charge drug
quantity in an indictment was error, but that where the evidence of drug
quantity was “overwhelming and essentially uncontroverted,” the error did
not “seriously affect[] the fairness, integrity or public reputation of judicial
proceedings.” 535 U.S. 625, 632–33 (2002) (internal quotation marks
omitted). Perceiving that “[t]he real threat . . . to the fairness, integrity,
and public reputation of judicial proceedings would be if respondents,
despite the overwhelming and uncontroverted evidence that they were
involved in a vast drug conspiracy, were to receive a sentence prescribed
for those committing less substantial drug offenses because of an error that
was never objected to at trial[,]” the Court determined reversal for plain
error improper. Id. at 634 (internal quotation marks omitted).
30          UNITED STATES V. GUERRERO-JASSO

    Minore described the less stringent approach as simply
asking whether the defendant received a sentence greater than
authorized, absent the error. See 292 F.3d at 1121–22. And
although we held the less stringent standard not applicable to
plain-error cases, we recognized that we had previously
applied it in harmless-error cases, and were careful “not [to]
suggest that the less stringent approach is no longer available
on harmless error review.” Id. at 1122 n.12. We then
continued to review properly preserved Apprendi claims for
harmless error by analyzing only the error’s effect on the
sentence received, not combing the record for overwhelming,
uncontroverted evidence of the sentencing-enhancing fact.
See, e.g., Thomas, 355 F.3d at 1201.

    Zepeda-Martinez, however, apparently deeming this long
line of cases incompatible with Washington v. Recuenco,
548 U.S. 212 (2006), held that Neder’s brand of harmless-
error review applies to “properly preserved” Apprendi
violations, too. 470 F.3d at 913. Accepting that “our prior
case law may suggest otherwise,” Zepeda-Martinez cites
Recuenco as holding that “Apprendi errors are reviewed
under the harmless error standard as applied in Neder[.]” Id.

    In my view, Recuenco did not so hold, and Zepeda-
Martinez erred in assuming that it did. Recuenco affirmed a
rule that already existed in our circuit, i.e., that Apprendi
violations are reviewable for harmless error. But it did not
mandate any particular method for conducting that review,
and so did not require us to overrule our circuit precedents
regarding the nature of that review where there is preserved
Apprendi error.

   In Recuenco, the jury returned a guilty verdict for assault
and a special verdict finding that the defendant was armed
              UNITED STATES V. GUERRERO-JASSO                           31

with a deadly weapon. The jury was not asked to find, and
did not find, that the defendant was armed with a firearm.
548 U.S. at 215. Nonetheless, at sentencing, the defendant
received a three-year enhancement for being armed with a
firearm. Id.

    The Court held Neder’s harmless-error ruling applicable
under these circumstances, reasoning that, “[b]ecause Neder’s
jury did not find him guilty of each of the elements of the
offenses with which he was charged, its verdict is no more
fairly described as a complete finding of guilt of the crimes
for which the defendant was sentenced than is the verdict
here.” Id. at 221. As the case was in this respect
“indistinguishable from Neder,” id. at 220, the Court held the
Apprendi error in Recuenco reviewable for harmless error.
The Court did not, however, explain how harmless-error
review of Apprendi errors should be conducted. Neder’s
mode of harmless-error analysis is not discussed in Recuenco,
and Recuenco specifically declined to rule on the question of
whether the error in the case before it was harmless.3 Id. at


 3
    The defendant-respondent in Recuenco had argued that at the time of
his conviction, Washington state law did not provide a procedure whereby
a jury could make the finding required by Apprendi. Id. at 217. He went
on to maintain that the Washington Supreme Court’s structural error
holding regarding the Apprendi violation in his case thus rested on an
adequate and independent state ground — the lack of a procedural
mechanism allowing a jury to make the necessary factual finding. Id. at
216–17. Recuenco rejected the argument that state law barred it from
reaching the merits, but explained that the state’s mechanisms for
presenting sentence enhancements to a jury were relevant to harmlessness.
If the state had no such mechanism, Recuenco reasoned, “that . . . suggests
that respondent will be able to demonstrate that the . . . violation in this
particular case was not harmless.” Id. at 218 (emphasis in original)
(citing Chapman, 386 U.S. at 24). Recuenco thus suggests that a sentence
above the statutory maximum could not be deemed harmless if the penalty
32          UNITED STATES V. GUERRERO-JASSO

217–18. Recuenco held only that “[f]ailure to submit a
sentencing factor to the jury, like failure to submit an element
to the jury, is not structural error.” 548 U.S. at 222.

    Our rejection of our prior case law following Recuenco
might not be so troubling if our mode of harmless-error
review had been limited to reviewing the trial record with
regard to what the jury would almost surely have found on
the factual question essential to determining the maximum
sentence. But we held in Nordby that review of an Apprendi
violation should “encompass[ ] the ‘whole record,’” including
evidence from sentencing proceedings. 225 F.3d at 1061 n.6
(quoting Delaware v. Van Arsdall, 475 U.S. 673, 681 (1986)).
We derived the notion of “whole record” review from the
Supreme Court’s opinion in Delaware v. Van Arsdall,
475 U.S. 673, 681 (1986), which held that a violation of the
constitutional right to confront an adversarial witness does
not require reversal if the error was harmless beyond a
reasonable doubt.

    Van Arsdall, however, made no mention of sentencing
proceedings. Instead, it concluded that “the Supreme Court
of Delaware was wrong when it declined to consider whether
[the adverse] ruling was harmless in the context of the trial as
a whole.” 475 U.S. at 674 (emphasis added). And none of
the cases Van Arsdall cites as support for “whole record”
review mention sentencing proceedings after a trial or a
guilty plea either. See United States v. Hasting, 461 U.S.
499, 509 (1983) (“[T]he Court has consistently made clear
that it is the duty of a reviewing court to consider the trial
record as a whole and to ignore errors that are harmless.”


provision that increased the maximum sentence was not, and could not
have been, submitted to a jury.
             UNITED STATES V. GUERRERO-JASSO                      33

(emphasis added)); Moore v. Illinois, 434 U.S. 220, 232
(1977); Harrington v. California, 395 U.S. 250, 253–54
(1969).

    Nonetheless, our decision to consider sentencing
proceedings in Nordby made a certain amount of sense, as we
did so for the purpose of giving the defendant an opportunity
to counter evidence that the government introduced at trial —
evidence which the defendant might have failed to dispute
because he was unaware of its relevance to the jury’s decision
until it was declared relevant on appeal. We therefore looked
to the sentencing proceedings for a limited purpose — “to
assist us in determining what evidence Nordby would have
introduced at trial [on the omitted fact] had that issue been
relevant.” Nordby, 225 F.3d at 1061 n.6 (emphasis added).
But we refused to consider any post-conviction admissions or
stipulations made by the defendant, because we deemed “new
admissions by Nordby at sentencing, made after the jury had
already rendered its verdict . . . irrelevant to [the] inquiry.”
Id.

    Unfortunately, we later threw Nordby’s limitations to the
wind. All that is left of Nordby’s careful excision of the
relevant post-conviction material from the irrelevant is the
rule that we do not consider the defendant’s post-conviction
admissions or stipulations in Apprendi harmless-error
review.4 See Butler v. Curry, 528 F.3d 624, 648 n.16 (9th
Cir. 2008) (noting “our long-standing rule that admissions at
sentencing are not relevant to an Apprendi harmless error
analysis”); Lococo, 514 F.3d at 864 (refusing to consider
defendant’s statements at sentencing, even though they could

 4
   Even this rule has on occasion been breached. See Zepeda-Martinez,
470 F.3d at 913.
34          UNITED STATES V. GUERRERO-JASSO

be interpreted as an admission, in assessing the harmlessness
of an Apprendi error in accepting a guilty plea); United States
v. Salazar-Lopez, 506 F.3d 748, 755 (9th Cir. 2007) (“[W]e
do not consider new admissions made at sentencing in our
harmless error inquiry”); United States v. Jordan, 291 F.3d
1091, 1097 (9th Cir. 2002) (“A stipulation at sentencing does
not address the jury’s finding and cannot be considered under
Apprendi.”).

     Thus, several opinions of this court since Nordby have
considered evidence introduced at sentencing by the
government as part of harmless-error, rather than — as in
Nordby — plain-error review, see, e.g., Hunt, 656 F.3d at
913–16; Zepeda-Martinez, 470 F.3d at 913, and other circuits
have done likewise, see, e.g., United States v. Harakaly,
734 F.3d 88, 96–97 & n.9 (1st Cir. 2013) (declining to decide
whether post-conviction concessions “would independently
suffice to establish harmlessness,” but relying on them for
corroboration of the defendant’s “earlier concessions at his
Rule 11 hearing”); United States v. Williams, 493 F.3d 763,
767–68 (7th Cir. 2007). Moreover — again, unlike in Nordby
— we have applied this process of post-conviction
evidentiary submission and fact-finding analysis to cases in
which there was never a trial at all, even though Neder,
Recuenco, and Nordby all involved jury verdicts. See Hunt,
656 F.3d at 913–16 (guilty plea); Zepeda-Martinez, 470 F.3d
at 913 (same). In the process, we expanded the scope of post-
conviction evidence considered as to Apprendi harmlessness
from evidence the defendant would have admitted at trial to
evidence the parties would have admitted at trial, Zepeda-
Martinez, 470 F.3d at 913 n.3. The result was to pave the
way for a post-conviction bench trial on a fact never
conceded before conviction, even where no pre-conviction
trial was ever held.
            UNITED STATES V. GUERRERO-JASSO                 35

    That is precisely what the government proposed here —
a bench trial as a substitute for the trial by jury required by
Apprendi, in which evidence never submitted to any jury is
presented for the first and only time to a judge. To sanction
such a procedure is to allow the protections accorded by
Apprendi entirely to atrophy.

     Were we to countenance governmental introduction of
evidence for the sole, explicit purpose of defeating harmless-
error review, we would be approving a court doing “just what
[the Supreme Court] ha[s] said it cannot: relying on its own
finding about a non-elemental fact to increase a defendant’s
maximum sentence.” Descamps v. United States, 133 S. Ct.
2276, 2288–89 (2013); see also Shepard v. United States,
544 U.S. 13, 25 (2005) (plurality opinion); id. at 28 (Thomas,
J., concurring in part and concurring in judgment). Descamps
applied this prohibition broadly, resoundingly rejecting our
circuit’s prior approach, which had authorized “the court to
try to discern what a trial showed, or a plea proceeding
revealed, about the defendant’s underlying conduct,” and
emphasizing that “[t]he Sixth Amendment contemplates that
a jury — not a sentencing court — will find such facts,
unanimously and beyond a reasonable doubt.” 133 S. Ct. at
2288.

    Zepeda-Martinez purportedly used post-conviction
evidence as a mere “guide” to determining what would have
ensued in a jury trial and then predicting whether a reasonable
jury necessarily would have found the facts essential to the
crime charged beyond a reasonable doubt. But this mode of
analysis is judicial fact-finding of precisely the sort
Descamps proscribes: It requires going behind the fact of
conviction to establish what evidence the parties would have
introduced at a trial, and then relies on evaluation of that
36          UNITED STATES V. GUERRERO-JASSO

evidence to impose a sentence greater than the maximum
sentence that Congress intended. Moreover, as in United
States v. Aguila-Montes de Oca, 655 F.3d 915, 918 (9th Cir.
2011) (en banc), abrogated by Descamps, 133 S. Ct. at
2282–83, in cases like Zepeda-Martinez and Hunt, and this
case, no trial occurred, so guesses about what would have
occurred at trial are entirely hypothetical.

                              III.

    The government’s proposal that we affirm the instant
sentence on harmless-error review would require us to hold
that because the government produced an execution-of-
warrant form at sentencing, Guerrero-Jasso’s constitutional
right, absent waiver, to have the essential fact of his removal
date put to a jury and proved beyond a reasonable doubt can
go by the wayside. Quite aside from the reasons we give in
the panel opinion for rejecting this proposition, it is one that,
in my view, should not be entertained at all. Neither Neder
nor Recuenco support such a result. And, by affording
penalty provisions that increase a maximum statutory
sentence the protections of the Sixth Amendment and
reasonable-doubt standard, the Supreme Court has forbid it.
See Apprendi, 530 U.S. at 477. Instead, harmless-error
review in Apprendi cases must respect the principle that a
court may not itself make a finding as to a disputed fact — as
opposed to an assessment of harmless error on a pre-
conviction trial record — in situations where fact-finding
would increase the statutory maximum. If the defendant did
not admit an essential fact during his plea colloquy and
evidence concerning the fact was not put to a jury, it violates
Apprendi for a court to allow the government, post-
conviction, to introduce new evidence, find that evidence of
the fact would have been introduced in a hypothetical jury
            UNITED STATES V. GUERRERO-JASSO                 37

trial, and then determine that the essential fact would have
been found by the hypothetical jury had the newly produced
evidence been before it.

    With our expansive approach to harmless error in
Apprendi cases, especially in guilty plea cases, Apprendi’s
protections could become protections in name only. Indeed,
although I have no reason to think that the Apprendi error in
this case was engineered by the government, our current
Apprendi harmless-error methodology could encourage
prosecutors to do exactly that — consciously allow Apprendi
error, and then introduce the omitted evidence for the first
time at sentencing, thereby bypassing the jury trial protection
underlying Apprendi. We should stop this process in its
tracks by reconsidering en banc our Apprendi harmless-error
cases, particularly Zepeda-Martinez.
