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U.S. vs. Salazar-Mojica, No. 09-50632 (2-24-11) (Clifton with Pregerson and Holland, Sr. D. J., D. Alaska). Can one change the past? Specifically, in a 1326 prosecution, can one change a past state conviction that is classified as an aggravated felony to a misdemeanor, and avoid a +16 level increase? The 9th shakes its head, "no." Defendant was charged with a 1326 reentry. After his arrest, but before his conviction and sentencing, he went into state court and got the prior felony conviction reduced to a misdemeanor. This change in time does not affect the calculation of time. The focus is the criminal history at the time of the deportation. The 9th concludes that the relevant time for determining whether a prior conviction was a felony for purposes of enhancement is at the time of the defendant's deportation. A relabeling of a conviction does not impact the Guidelines' provision that an enhancement is added if the defendant was previously deported after a conviction for a felony that is a crime of violence. That was the situation here. This follows the 1st, 2nd, 7th, 10th and 11th Circuits.

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