                                                                           FILED
                            NOT FOR PUBLICATION
                                                                            SEP 28 2016
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No.    15-50312

              Plaintiff-Appellee,                D.C. No.
                                                 3:15-cr-00622-LAB-1
 v.

MARCELO JOEL SANTOS-CORDERO,                     MEMORANDUM*

              Defendant-Appellant.


                    Appeal from the United States District Court
                      for the Southern District of California
                    Larry Alan Burns, District Judge, Presiding

                      Argued and Submitted August 31, 2016
                              Pasadena, California

Before: WARDLAW and BYBEE, Circuit Judges and ZIPPS,** District Judge.

      Appellant Marcelo Santos-Cordero was convicted by a jury for illegal

reentry, in violation of 8 U.S.C. § 1326, and making a false claim to United States

citizenship, in violation of 18 U.S.C. § 911. On appeal, he argues the district court


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Jennifer G. Zipps, United States District Judge for the
District of Arizona, sitting by designation.
misapplied the procedure outlined in Batson v. Kentucky, 476 U.S. 79 (1986),

when evaluating the Government’s peremptory strike of a Hispanic juror.

      A Batson challenge is evaluated using a three-step procedure. In the first

step, “the defendant must make out a prima facie case ‘by showing that the totality

of the relevant facts gives rise to an inference of discriminatory purpose.’”

Johnson v. California, 545 U.S. 162, 168 (2005) (quoting Batson, 476 U.S. at

93–94). Second, if that prima facie case is made out, the “‘burden shifts to the

State to explain adequately the racial exclusion’ by offering permissible race-

neutral justifications for the strikes.” Id. (quoting Batson, 476 U.S. at 94). Third,

the trial court must decide whether, given all of the relevant facts, the race-neutral

justification is credible, or defendant has proven purposeful discrimination. Id.

      The district court violated the procedure outlined in Batson when at step one,

before offering defense counsel an opportunity to explain its objection, it offered

its own speculation as to reasons the prosecutor might have challenged the juror.

Currie v. McDowell, 825 F.3d 603, 609–10 (9th Cir. 2016); Paulino v. Castro, 371

F.3d 1083, 1090 (9th Cir. 2004). The district court responded to Santos-Cordero’s

Batson challenge by stating that while the juror appeared to be Hispanic, she had

clearly displayed great hesitance in her answers about immigration and there was

no evidence to suggest the challenge was exercised on an invidious basis. “[I]t


                                           2
does not matter that the prosecutor might have had good reasons to strike the

prospective jurors. What matters is the real reason they were stricken.” Paulino,

825 F.3d at 1090. “[T]he existence of ‘grounds upon which a prosecutor could

reasonably have premised a challenge,’ does not suffice to defeat an inference of

racial bias at the first step of the Batson framework.” Johnson v. Finn, 665 F.3d

1063, 1069 (9th Cir. 2011). Therefore, the district court erred by relying on its

own speculation about the prosecutor’s potential reasons for striking the juror

when it concluded that a prima facia showing of discrimination had not been made

at step one.

      Accordingly, we remand this case to the district court to conduct a proper

Batson analysis.

REVERSED.




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