- Court: 9th Circuit Court of Appeals Archives
- Area(s) of Law: Criminal Law
- Date Filed: 04-09-2014
- Case #: 13-10110
- Judge(s)/Court Below: Per Curiam Opinion; Circuit Judges Thomas, Fisher, and Berzon
- Full Text Opinion
Francisco Barrios-Siguenza ("Barrios") was convicted of assault on a federal officer and illegally entering the United States. He appealed his convictions and 18 months sentence. The Ninth Circuit, in a memorandum disposition filed concurrently with this opinion, vacated Barrios' conviction for assault on a federal officer and remanded for retrial. Pending his appeal, Barrios was deported and the government "request[ed] that [the Court] therefore affirm [Barrios'] conviction, without prejudice to a later request by [Barrios] to vacate the conviction consistent with [the Court's] disposition, should [Barrios] return to the United States or waive his right to be physically present at retrial" citing "the potential for undesirable and even mischievous results that could arise from the normal remedy of vacating the sentence and remanding for resentencing where the defendant has been deported[,]" (Internal citations omitted) and the Court's "reluctan[ce] to leave the case for perhaps an extended period of time in the jurisdictional limbo of the District Court’s suspense calendar,” The panel held that because there was no precedent to support the proposition that the Court could not and should not vacate an invalid conviction of a defendant that has been deported, and there were adequate assurances that Barrios would be able to return for trial if the government chose to retry him, the "case is unlikely to languish for an indefinite period before the district court, should the government choose to retry Barrios." The panel also held that "because Barrios’ conviction for assault on a federal officer will have been reversed, unless and until Barrios should be retried, he must be presumed innocent of that charge. He should not be required to suffer the indignity — and the collateral consequences — of this felony conviction until such time as he is able to return to the United States." VACATED in part, AFFIRMED in part, AND REMANDED.