                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-7-2005

USA v. Santos-Estrella
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-2346




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"USA v. Santos-Estrella" (2005). 2005 Decisions. Paper 891.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/891


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                                                          NOT PRECEDENTIAL

                  IN THE UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT

                                   Case No.: 04-2346

                           UNITED STATES OF AMERICA

                                           v.

                          ROBERTO SANTOS-ESTRELLA,

                                       Appellant




                   On Appeal from the United States District Court
                         for the Eastern District of Pennsylvania
                            District Court No.: 03-CR-00759
                  District Judge: The Honorable Mary A. McLaughlin


                                 Argued June 29, 2005

               Before: NYGAARD, SMITH, and FISHER, Circuit Judges

                                   (Filed:July 7, 2005)

David E. Troyer [Argued]
Office of the United States Attorney
615 Chestnut Street, Suite 1250
Philadelphia, Pennsylvania 19106
       Counsel for Appellee

Robert Epstein
Brett G. Sweitzer [Argued]
Defender Association of Philadelphia
Federal Court Division
601 Walnut Street

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Suite 540 West - The Curtis Center
Philadelphia, Pennsylvania 19106
       Counsel for Appellant




                                OPINION OF THE COURT


SMITH, Circuit Judge.

       Roberto Santos-Estrella pleaded guilty to being an alien who unlawfully reentered

the United States after deportation in violation of 8 U.S.C. § 1326(a) and (b)(2). He was

sentenced to forty-one months of imprisonment, followed by three years of supervised

release. This appeal does not challenge his conviction. Rather, Santos-Estrella contends,

for the first time, that the District Court erred in calculating his offense level under United

States Sentencing Guideline (“U.S.S.G.”) § 2L1.2(b)(1)(A)(i) by applying the 16 level

enhancement for prior “drug trafficking” offenses. Application of this enhancement,

according to Santos-Estrella, was precluded under the formal categorical approach

embraced in United States v. Taylor, 495 U.S. 575 (1990), because the New York statute

under which he had been previously convicted required proof of possession only. Santos-

Estrella also asserts that the District Court erred in refusing to depart downward because

it believed it lacked the authority to do so. Relying on Blakely v. Washington, 124 S.Ct.

2531 (2004), Santos-Estrella argues that the District Court’s findings at sentencing

violated his Fifth and Sixth Amendment rights.

       On March 9, 2005, the United States Supreme Court issued its decision in United

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States v. Booker, 125 S.Ct. 738 (2005), holding that the federal sentencing guidelines

were not mandatory, but advisory only. Id. at 757. In the wake of the Supreme Court’s

decision, this Court requested that the parties address Booker’s applicability. Although

Santos-Estrella asserted that Booker applied, he maintained that the sentencing issues he

raised should be resolved.

       Thereafter, in United States v. Davis, 407 F.3d 162 (3d Cir. 2005) (en banc), this

Court explained that in direct appeals of sentences imposed before Booker, where the

District Court erroneously treated the Guidelines as mandatory rather than advisory and

where we are unable to “ascertain whether the District Court would have imposed a

greater or lesser sentence under an advisory framework,” prejudice in a plain error

analysis “can be presumed.” Id. at 164-65. We declared that a “[f]ailure to remand for

resentencing . . . could adversely affect the fairness and integrity of the proceedings.

Accordingly, defendants sentenced under the previously mandatory regime whose

sentences are being challenged on direct appeal may be able to demonstrate plain error

and prejudice.” Id. at 165. Thus, we concluded that in such cases a remand for

resentencing is warranted so the District Court may consider the appropriate sentence in

the first instance. Id. at 166.

       In light of our holding in Davis, we asked counsel for Santos-Estrella during oral

argument whether, if we remanded for resentencing under Booker, we were required to

reach the issues he raised on appeal. We also noted that Santos-Estrella had not raised his



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challenge to the sentencing enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(i) when he

was before the District Court and that there existed the possibility that the District Court

might agree with his position on remand. Counsel conceded that our consideration of the

appropriateness of this sentencing enhancement was not “a strict necessity.” We agree.

Consistent with Davis, 407 F.3d at 166, we conclude that the sentencing issues raised by

Santos-Estrella, including the applicability of both the enhancement in §

2L1.2(b)(1)(A)(i) and Taylor’s categorical approach, are best determined by the District

Court in the first instance. For that reason, we will affirm Santos-Estrella’s conviction,

vacate his sentence, and remand for resentencing in accordance with Booker.




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