Removal Did Not Moot Challenge to Sentence

U.S. v. Jurado-Lara, 2008 WL 2893974 (7/29/08) (unpub'd) - The defendant's challenge to a 16-month sentence was not moot, even though the defendant had finished his sentence and had been removed to Mexico. There were still sufficient collateral consequences attached to his sentence because, if his sentencing argument was correct, the upper end of his guideline range would be less than twelve months and his conviction for using false information and documents in violation of 18 U.S.C. § 1546 would not constitute an "aggravated felony" if he received a sentence less than 12 months. If he was not convicted of an aggravated felony he would not be permanently inadmissible. The defendant had a very sad story. He was convicted for using false photo-ID cards to get jobs in early 2004. After he did that, but long before he was arrested, he met and then married a U.S. citizen. Through his wife's petition for alien relative he received a social security card and, from then on he worked under his own name. The same month his wife received a notice of approval of relative-immigration visa petition in February 2007, he was arrested for his 2004 offense. On appeal, he argued the government had failed to justify an enhancement under § 2B1.1(b)(10)(C)(I) for using the identification of an actual person, because the government had not shown he used the ID without the actual person's permission. The 10th noted that the record did not contain such evidence. But the 10th could not find plain error because the issue was a factual one that the defendant, by failing to raise the issue below, had not afforded the government an opportunity to flesh out the record.