                     FOR PUBLICATION

    UNITED STATES COURT OF APPEALS
         FOR THE NINTH CIRCUIT


 UNITED STATES OF AMERICA ,                         No. 10-10092
                 Plaintiff-Appellee,
                                                      D.C. No.
                      v.                           2:09-cr-01119-
                                                       ROS-1
 MARCELINO AGUILAR-REYES, AKA
 Sebastian Gonsalez-Gonsalez,
               Defendant-Appellant.                   OPINION


       Appeal from the United States District Court
                for the District of Arizona
      Roslyn O. Silver, Chief District Judge, Presiding

                    Argued and Submitted
          June 10, 2013—San Francisco, California

                        Filed July 18, 2013

Before: Diarmuid F. O’Scannlain and Andrew D. Hurwitz,
 Circuit Judges, and Lawrence L. Piersol, District Judge.*

                 Opinion by Judge O’Scannlain




 *
   The Honorable Lawrence L. Piersol, Senior District Judge for the U.S.
District Court for the District of South Dakota, sitting by designation.
2             UNITED STATES V . AGUILAR-REYES

                           SUMMARY**


                           Criminal Law

    The panel affirmed a deported defendant’s sentence
without prejudice to a later request by the defendant, if and
when he should return to the United States or waive his right
to be physically present at resentencing, that his previous
sentence be vacated and that he be resentenced in this case in
which the government agrees that the defendant was
improperly sentenced.

    The panel rejected the defendant’s argument that this
appellate remedy, which was set forth in United States v.
Plancarte-Alvarez, 366 F.3d 1058 (9th Cir. 2004), applies
only when it is the government that is entitled to seek
resentencing.

    The government contested on appeal neither of the
defendant’s two bases for his theory that A.R.S. § 13-2319
does not categorically fit the federal definition of an alien
smuggling offense and thus ought not to have triggered a 16-
level enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(vii).




  **
     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 . AGUILAR-REYES                 3

                        COUNSEL

Juan L. Rocha, Phoenix, Arizona, argued the cause and filed
the briefs for the defendant–appellant. With him on the briefs
were Jon M. Sands, Federal Public Defender, and Brian I.
Rademacher, Assistant Federal Public Defender, Phoenix,
Arizona.

Dominic Lanza, Assistant U.S. Attorney, Phoenix, Arizona,
argued the cause and filed the briefs for the United States.
With him on the brief were John S. Leonardo, United States
Attorney, and Mark S. Kokanovich, Deputy Appellate Chief,
Phoenix, Arizona.


                         OPINION

O’SCANNLAIN, Circuit Judge:

    We must specify the proper appellate remedy for a
defendant who is entitled to a resentencing but, having been
deported, is unable to be present for a resentencing hearing.

                              I

   In 2008, Marcelino Aguilar-Reyes, a Mexican citizen,
was convicted in Arizona state court of “attempt to commit
smuggling” in violation of A.R.S. § 13-2319. He was
sentenced to three years’ probation and later deported to
Mexico.

    A year later, Aguilar-Reyes was caught in Arizona
driving a vehicle containing five illegal aliens. He pleaded
guilty in federal court to one count of reentry of a removed
4           UNITED STATES V . AGUILAR-REYES

alien. The presentence report (PSR) concluded that his
previous conviction under A.R.S. § 13-2319 counted
categorically as an “alien smuggling offense,” triggering a
sixteen-level enhancement under the federal sentencing
guidelines. U.S.S.G § 2L1.2(b)(1)(A)(vii). By the report’s
calculations, Aguilar-Reyes’s total offense level was twenty-
one, with a base offense level of eight, a sixteen-level
enhancement based on the prior conviction, and a three-level
reduction for acceptance of responsibility. Factoring in the
two-level downward departure that the district court later
granted, the guideline range was thirty-three to forty-one
months’ imprisonment.

    Aguilar-Reyes objected to the PSR, contending that, since
the state-law offense of conviction did not qualify as an “alien
smuggling offense,” he was subject only to a four-level
enhancement based on his prior felony conviction. See
U.S.S.G. § 2L1.2(b)(1)(D). The parties filed several briefs on
the question. Aguilar-Reyes argued, among other things, that
the Arizona statute’s mens rea standard is less demanding
than that of the federal smuggling statute. Expressing some
doubt, the district court ultimately disagreed with Aguilar-
Reyes and sentenced him to thirty-three months’
imprisonment followed by three years of supervised release.

    Aguilar-Reyes then filed both a motion to correct the
sentence and a notice of appeal. In the motion, he directed
the district court’s attention to another case ostensibly
supporting his argument that the Arizona crime of conviction
is not an “alien smuggling offense.” Over the government’s
objection, the court granted the motion, and, after an
exchange of sentencing memoranda and a new sentencing
hearing, entered an “amended” judgment reducing the
sentence to time served and authorizing his release from
               UNITED STATES V . AGUILAR-REYES                           5

custody. The government subsequently removed Aguilar-
Reyes to Mexico, where he apparently still resides.

    The government appealed from the amended judgment,
prompting us to stay Aguilar-Reyes’s appeal from the original
judgment. In the appeal from the amended judgment, a
separate panel of this court held that the district court lacked
jurisdiction to engage in resentencing. United States v.
Aguilar-Reyes, 653 F.3d 1053 (9th Cir. 2011). The panel
reinstated the original judgment and vacated the amended
one. Id. at 1056.

    In March of 2012, Aguilar-Reyes filed his opening brief
in this appeal.1 There, he argued for the first time that the
Arizona statute is overbroad not only because of its different
mens rea requirement but also because it lacks an element
included in the federal statute: that the offense be committed
“in furtherance” of the smuggled aliens’ violation of law.
That second argument took the government by surprise.
After requesting a few time extensions to consider whether
Aguilar-Reyes was correct, “the United States reached the
conclusion that the Arizona smuggling statute is, in fact,
categorically overbroad due to the missing ‘in furtherance’
element.”

   The government thereafter filed a “Motion to Grant
Defendant Sentencing Relief,” in which it expressly
abandoned any argument on forfeiture or waiver grounds and


 1
   Although Aguilar-Reyes is no longer in custody and has been removed
to Mexico, this case is not moot given the possibility that “the government
could seek extradition” or Aguilar-Reyes “might voluntarily reenter the
country.” United States v. Plancarte-Alvarez, 366 F.3d 1058, 1063–64
(9th Cir. 2004).
6           UNITED STATES V . AGUILAR-REYES

conceded that Aguilar-Reyes was entitled to sentencing relief.
The motion asked us “to follow its typical practice in cases
involving sentencing appeals by defendants who already have
been removed to Mexico—to affirm the challenged sentence
‘without prejudice’ to the defendant’s right to vacate the
sentence and be re-sentenced should he ever return to the
country.” Aguilar-Reyes partly opposed the motion. He
argued that we should instead vacate the sentence and remand
to the district court to conduct a resentencing hearing.

    Months later, the Appellate Commissioner issued an order
denying the government’s motion “without prejudice to
renewing the arguments in the answering brief.”

                              II

    In his opening brief, Aguilar-Reyes set forth two bases for
his theory that the state-law crime of conviction does not
categorically fit the federal definition of an alien smuggling
offense and thus ought not to have triggered a sixteen-level
sentencing guidelines enhancement.           The government
contests neither argument. On the merits, then, the parties are
in agreement: Aguilar-Reyes was improperly sentenced.

                              A

    Aguilar-Reyes’s first contention is that a federal “alien
smuggling offense” contains an element that the state crime
of conviction lacks: that the smuggling be “in furtherance of
such violation of law,” meaning that the defendant moved the
alien “in order to help him or her to remain in the United
States illegally.” Ninth Circuit Model Criminal Jury
Instruction § 9.2 (2010). In its motions, brief, and in open
court, the government has again and again conceded the
             UNITED STATES V . AGUILAR-REYES                    7

correctness of such position. For purposes of this case,
therefore, we regard it as settled (but do not decide) that
because the Arizona statute lacks an “in furtherance” element,
it is not a categorical “alien smuggling offense.”

                                B

    Aguilar-Reyes’s second categorical-overbroadness
argument is that the Arizona statute’s mens rea
requirement—knowing or having reason to know that the
transported person is an alien—is less demanding than that of
the federal offense of alien smuggling, which is said to
require some form of recklessness. Though the government
disagreed below (indeed, it even convinced the district court
that it had the better argument), it has since affirmatively
forfeited its position on this issue not only for purposes of this
appeal but for purposes of any subsequent proceeding in this
case. Indeed, at oral argument, the government informed us
that it would be “happy” if we held that the United States is
foreclosed from arguing at any future stage of this case that
the mens rea element of the Arizona statute and the mens rea
element of a federal “alien smuggling offense” are categorical
matches.

    We so hold.

                               III

    Since there is no live dispute on the merits, we proceed to
heart of the case: the matter of a remedy. The parties dispute
the reach of our holding in United States v. Plancarte-
Alvarez, 366 F.3d 1058 (9th Cir. 2004). There, we
determined that, although the district court had committed a
8           UNITED STATES V . AGUILAR-REYES

sentencing error in the defendant’s favor, an added wrinkle
preventing us from vacating and remanding:

        Ordinarily, we would vacate the sentence
        imposed by the district court and remand for
        resentencing. However, the district court
        cannot resentence Plancarte–Alvarez at this
        time because the government has deported
        him and, unless he returns to the United
        States, he will not be present for sentencing as
        required by Rule 43(a) of the Federal Rules of
        Criminal Procedure.

366 F.3d at 1065. We arrived at this solution:

        In view of this circumstance, we conclude that
        the more prudent course of action is that taken
        by the Second Circuit . . . . Consistent with
        that approach, we affirm the sentence imposed
        by the district court, but do so without
        prejudice to an application by the government
        to the district court to vacate Plancarte–
        Alvarez’s sentence and resentence him in
        accordance with this opinion.

Id. (internal citations omitted).

                               A

   Aguilar-Reyes reads Plancarte-Alvarez to apply only
when it is the government that is entitled to seek resentencing.
While it is true that Plancarte-Alvarez itself involved just
such a scenario, and while it is also true that this court has
never in a published opinion applied the Plancarte-Alvarez
               UNITED STATES V . AGUILAR-REYES                           9

remedy when it was the defendant who was entitled to
resentencing, this court has applied the Plancarte-Alvarez
remedy at least four times in unpublished cases involving
defendants entitled to resentencing. See United States v. Jae
Hee Kim, No. 05-10633, 2008 WL 5396821 (9th Cir. 2008);
United States v. Ortiz-Montano, No. 07-10552, 2011 WL
5116517 (9th Cir. 2011); United States v. Rosales-Martinez,
No. 07-10524, 2011 WL 6396230 (9th Cir. 2011); United
States v. Nevarez-Cajigas, No. 11-10375, 2013 WL 323875
(9th Cir. 2013).

     The logic of Plancarte-Alvarez is driven not by the
identity of the party challenging the sentence but by Rule 43
of the Federal Rules of Criminal Procedure, which
unequivocally states that “the defendant must be present at
. . . sentencing.” Fed. R. Crim. P. 43(a)(3). The rule sets
forth a few exceptions to the presence requirement,2 but those
exceptions are exclusive, see Crosby v. United States,
506 U.S. 255, 260 (1993) (holding that the “list of situations”
in which sentencing may proceed “without the defendant is
. . . exclusive”). The rule makes clear that, under no
circumstance (not expressly excepted), may Aguilar-Reyes be
resentenced in abstentia. To the extent counsel for Aguilar-
Reyes is arguing for exactly that, he cannot prevail.

                                    B

    But then, counsel says he is not arguing for resentencing
in abstentia exactly. Rather, he is arguing for a remand to the


  2
    T he rule also allows for waiver of the right to be present, see Fed R.
Crim. P. 43(c), but the right has not been waived here. Aguilar-Reyes is
not “voluntarily absent.” Fed. R. Crim. P. 43(c)(1)(B). Nor was he
disruptive at trial. Fed. R. Crim. P. 43(c)(1)(C).
10           UNITED STATES V . AGUILAR-REYES

district court so that it can figure out whether “resentencing
. . . can occur consistent with [Aguilar-Reyes’s] statutory and
constitutional rights.” He suggests that the district court
could conclude that resentencing may proceed without
Aguilar-Reyes since the proceeding would resolve “only . . .
a question of law”: whether the modified categorical
approach allows for imposition of a sixteen-level
enhancement. See Fed. R. Crim. P. 43(b)(3). No fact
questions would arise, Aguilar-Reyes contends, because all
the relevant issues bearing on the 18 U.S.C. § 3553
sentencing factors have already been “presented and
litigated,” both in the original sentencing proceedings and the
resentencing proceedings (in which the district court was
acting outside its jurisdiction). Thus, “the time-served
sentence he received 04/10/2010, in essence, can simply be
reimposed or reinstated.”

    Such argument also fails. First, although it is true that,
during the period in which the district court was
reconsidering the already-imposed sentence, the sentencing
factors were in a sense “litigated” through an exchange of
sentencing memoranda, those issues were debated in and
resolved by a court without power to resolve them. See
Aguilar-Reyes, 653 F.3d at 1056 (“The district court was . . .
without jurisdiction to resentence Aguilar-Reyes.
Accordingly, Aguilar-Reyes’s original sentence must be
reinstated.”).    In any event, in a true resentencing,
everything—both issues of law and fact—are back on the
table, so the proceeding is necessarily one not limited strictly
to matters of law. It is for this reason that the leading treatise
on federal procedure declares, “If a sentence is set aside and
               UNITED STATES V . AGUILAR-REYES                          11

the case remanded for resentencing, the presence of the
defendant is necessary.” 3A Charles Alan Wright, et al.,
Federal Practice and Procedure § 723 (1982). The courts
appear to be unanimous on this general point. See, e.g.,
United States v. Bryant, 643 F.3d 28, 32 (1st Cir. 2011) (“A
resentencing, assuming that the full range of ordinary
sentencing issues is open, is treated essentially the same as an
initial sentencing for purposes of the presence requirement.”);
United States v. Garcia-Robles, 640 F.3d 159, 164 (6th Cir.
2011) (“Every circuit court to address the issue has held that
when resentencing is directed pursuant to a general remand
order, a defendant is entitled to be present and/or allocute.
Such holdings rely upon the Federal Rules of Criminal
Procedure, although some are constitutionally based.”
(collecting cases)); see also United States v. Alvarez-Pineda,
258 F.3d 1230, 1240–41 (10th Cir. 2001) (“When (or if)
Alvarez [a deportee] is re-sentenced, the sentencing court ‘is
free to reconsider the sentencing package de novo,’ except as
it is bound by the law of the case.” (internal citation
omitted)).3

                                    C

    In accordance with Plancarte-Alvarez, we therefore
affirm Aguilar-Reyes’s sentence without prejudice to a later
request by him, if and when he should return to the United


 3
   Aguilar-Reyes cites easily distinguishable precedent for the proposition
that “a defendant who already was present and had the opportunity to
allocute at an earlier sentencing hearing need not necessarily be present at
later resentencing hearing.” His main authority, United States v. Silva,
involved a limited remand in light of United States v. Booker, 543 U.S.
220 (2005), not a total remand for a full resentencing on an open record.
472 F.3d 683, 687 (9th Cir. 2007).
12          UNITED STATES V . AGUILAR-REYES

States or waive his right to be physically present at
resentencing, that his previous sentence be vacated and that
he be resentenced in light of this opinion.

     AFFIRMED without prejudice and with instructions.
