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Name: U.S. v. Barrios-Siguenza
Case #: 13-10110
Court: US Court of Appeals
District 9 Cir
Opinion Date: 04/09/2014

Defendant who is deported during pendency of appeal is entitled to have invalid conviction reversed. Defendant appealed his convictions for assault on a federal officer and illegal entry into the United States. During the pendency of the appeal he was deported. In a memorandum disposition, the Ninth Circuit vacated the assault conviction and remanded for a new trial. The government had requested that defendant’s conviction be affirmed, without prejudice to a later request to vacate the conviction should he return to the U.S. or waive his presence at retrial. In this opinion, the court rejected this request. Although this approach has been applied with respect to resentencing, there is no precedent for the proposition the court may not vacate an invalid conviction of a defendant who has been deported. Defense counsel assured the court defendant would return for retrial and the government has authority to allow him to return. Further, because his conviction for assault on a federal officer will have been reversed pending any retrial, he will be presumed innocent of that charge. (Johnson v. Mississippi (1988) 486 U.S. 578.) He should not be required to suffer the indignity and potential collateral consequences of the conviction pending his return to the U.S.