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U.S. v. Romero-Ochoa, No. 08-30251 (2-5-09). Shouldn't a defendant know for certain what he's facing in terms of penalties? Isn't this especially important for 1326s (illegal reentry after deportation) when it comes to having an aggravated felony or not? Of course, but here the defendant could not get an answer from the court pretrial. This put a bit of a damper on plea negotiations, or trial, and so the defendant sought both an interlocutory appeal and mandamus. The 9th (M. Smith joined by Beezer and Tallman) found no jurisdiction. First, there was not a final order. Defendant had asked for a pretrial order either determining whether his prior was an aggravated felony, or striking the allegation in the indictment. The court had reserved it for after trial, and so no finality as to a ruling was achieved. Second, this issue was not separate form the merits, but entangled, and there is a preference for speedy trial resolution of the merits. And third, the issue is reviewable upon appeal. As for mandamus, the ruling is not clearly erroneous, and is reviewable upon appeal, too. All in all, the facts here are not unusual nor the error clear so as to warrant extraordinary relief.

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