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Illegal Reentry Sentence Reversed

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By FindLaw Staff on May 21, 2010 6:01 PM

In US v. Garcia, No. 09-10534, the court of appeals affirmed defendant's conviction for illegal reentry into the U.S., on the ground that the district court did not abuse its discretion in failing to dismiss the indictment on statute of limitations grounds.  However, the court reversed defendant's sentence, on the ground that the district court committed error by enhancing defendant's sentence based on his conviction for aggravated assault under Arizona law.

As the court wrote:  "Luis Palomino Garcia appeals his conviction and 70-month sentence for illegal reentry into the United States in violation of 8 U.S.C. § 1326(a). He argues that his prosecution was barred altogether by the statute of limitations. Failing that, he argues that he was sentenced improperly in several ways. He says that his sentence was wrongly enhanced because his prior Arizona conviction for aggravated assault is not a "crime of violence" under the Sentencing Guidelines; that his sentence is unreasonable; and that the government's failure to allege in the indictment or prove to a jury a prior aggravated felony conviction violates his rights under the Fifth and Sixth Amendments. After thorough review and oral argument, we conclude that the district court did not abuse its discretion in failing to dismiss the indictment on statute of limitations grounds. We do, however, find the district court committed error by enhancing Mr. Palomino Garcia's sentence based on his conviction for aggravated assault under Arizona law. We therefore reverse and remand for resentencing on that issue."

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