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Failure to address ‘stale’ drug convictions was error

Where the district court discussed the defendant’s “extensive criminal history,” but never addressed his argument that two California drug convictions that were 34 and 28 years old were stale and should be excluded, his sentence was vacated and the case was remanded for resentencing.


Gustavo Perez-Paz is a citizen of Honduras who first entered the United States in 1984. He has twice been removed from and subsequently reentered the United States. He appeals from his guilty plea to one count of illegal reentry after deportation for an aggravated felony in violation of 8 U.S.C. § 1326(a), (b)(2).


Section 1326 imposes criminal penalties on “any alien who . . . has been denied admission, excluded, deported, or removed or has departed the United States while an order of exclusion, deportation, or removal is outstanding” and later enters or is found in the United States without permission of the United States Attorney General.

Taken together, the Fifth Amendment and the Sixth Amendment “indisputably entitle a criminal defendant to ‘a jury determination that [he] is guilty of every element of the crime with which he is charged, beyond a reasonable doubt.’” Perez-Paz argues that when a statute includes an administrative removal order as an element of the crime, that statute necessarily incorporates the facts supporting the removal order. As such, Perez-Paz asserts that § 1326 unconstitutionally allows an agency, rather than a jury, to establish an element of the crime. The court disagrees with the premise of Perez-Paz’s argument. Section 1326 does not incorporate the facts supporting the underlying removal order.

Perez-Paz also argues that § 1326 violates the Fifth Amendment right to due process because it allows reliance on a discretionary decision by an executive officer. But the Supreme Court has sanctioned such reliance in the context of § 1326. Accordingly, Perez-Paz’s constitutional claims fail.


Perez-Paz contends that that his 28 and 34-year-old California drug convictions should not result in an upward variance. Perez-Paz argues that the two drug convictions were properly excluded from his criminal history category due to their age, and the court should not now consider them because he has not since repeated any drug-related conduct.

The district court spent no small amount of time discussing Perez-Paz’s “extensive criminal history.” The court emphasized Perez-Paz’s prior removal orders and illegal reentry conviction. The court also noted Perez-Paz’s additional prior convictions and mentioned that Perez-Paz did not receive criminal history points for six of those convictions—including the two drug convictions. Despite this discussion, at no point did the court acknowledge Perez-Paz’s argument that the two drug convictions were stale and thus properly excluded.

It may be true that the district court did not rely on Perez-Paz’s drug convictions in upwardly varying. Indeed, the district court ultimately calculated a guidelines range of 37-46 months despite the government’s suggestion that counting the two drug convictions would lead to a guidelines range of 46-57 months. But “an appellate court may not guess at the district court’s rationale, searching the record for statements by the Government or defense counsel or for any other clues that might explain a sentence.” Perez-Paz raised a nonfrivolous argument in favor of a lower sentence and the district court failed to address it. This is procedurally unreasonable.

Second, Perez-Paz asserts that the district court failed to consider his sentencing- disparity argument. The government responds that, when defense counsel discussed sentencing-disparity statistics at the hearing, the district court interrupted with questions that made clear its rejection of Perez-Paz’s sentencing-disparity argument. The court disagrees.

Vacated and remanded.

United States v. Perez-Paz, Case No. 20-4182, June 30, 2021. 4th Cir. (Floyd), from EDVA at Richmond (Hudson). Joseph Stephen Camden for Appellant. Aidan Taft Grano for Appellee. VLW 021-2-247. 15 pp.

VLW 021-2-247