FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

No. 04-10267 Plaintiff-Appellee,

D.C. No.

v.  CR-03-00226-HDM

OSBALDO ESPARZA-GONZALEZ,

OPINION Defendant-Appellant. 

Appeal from the United States District Court

for the District of Nevada

Howard D. McKibben, District Judge, Presiding

Argued and Submitted

February 14, 2005—San Francisco, California

Filed September 6, 2005

Before: Dorothy W. Nelson, William A. Fletcher, and

Raymond C. Fisher, Circuit Judges.

Opinion by Judge D.W. Nelson

12321
COUNSEL

Cynthia S. Hahn (argued and briefed) and Michael K. Powell

(briefed), Assistant Federal Public Defenders, Reno, Nevada,

for the defendant-appellant. 

Ronald C. Rachow, Assistant United States Attorney, Reno,

Nevada, for the plaintiff-appellee. 

OPINION

D.W. NELSON, Circuit Judge: 

Osbaldo Esparza-Gonzalez, who is Latino, appeals from his

conviction, under 8 U.S.C. § 1326(a), for being an alien

unlawfully present in the United States after an earlier

removal. Esparza-Gonzalez alleges that two Equal Protection

violations under Batson v. Kentucky, 476 U.S. 79 (1986),

occurred during jury selection and require that his conviction

be overturned. In the alternative, Esparza-Gonzalez argues

that the district court erred in applying a sixteen-level sentence enhancement pursuant to United States Sentencing

Guidelines (USSG) § 2L1.2(b)(1)(A)(I) to his unlawful reentry conviction based on a prior drug trafficking conviction,

which was not presented as evidence to the jury. We hold that

for purposes of determining whether a prima facie case of a

UNITED STATES v. ESPARZA-GONZALEZ 12325
Batson violation has been established, waivers of peremptory

strikes in a struck jury system should be treated the same as

exercises of peremptory strikes in an alternate system.

Accordingly, we reverse in part and remand in part.

FACTUAL AND PROCEDURAL BACKGROUND

On December 17, 2003, Esparza-Gonzalez was indicted

and charged with a violation of 8 U.S.C. § 1326(a) for being

an alien found in the United States without permission after

a prior removal. Esparza-Gonzalez pled not guilty and was

tried by a jury on February 17, 2004. 

The district court used what is known as the “struck jury”

system to select jurors for Esparza-Gonzalez’s trial.1 Under

this system, 32 venirepersons are initially selected, of whom

28 are potential jurors and four are potential alternates. Beginning with the defense, each side exercises its challenges for

cause and then its peremptory strikes on an alternating basis.

Because Esparza-Gonzalez was charged with a felony, the

defense had ten peremptory strikes and the prosecution had

six. See Fed. R. Crim. P. 24(b)(2). Each side received one

additional peremptory strike for the alternate jurors. See id. at

(c)(4)(A). 

After the voir dire, neither side exercised a single strike for

cause. If each side had used all its peremptory strikes, only a

jury of 12 individuals and two alternates would have remained.2

The defense exercised all of its ten peremptory strikes, but the

prosecution only used one peremptory strike, waiving the

remainder. Under the struck jury system, when either side

waives a peremptory strike, this results in an excess number

1The district court referred to the jury selection procedure used as the

“modified Arizona system.” 

2

If either side had requested and been granted a strike for cause, the

ideal number of jurors and alternate jurors would have been reached

before each side had exercised all of its peremptory strikes. 

12326 UNITED STATES v. ESPARZA-GONZALEZ
of potential jurors, and therefore, the juror with the highest

juror number is removed from the jury panel. For this reason,

a waiver of a peremptory strike under this system is properly

viewed as the effective removal of an identifiable juror. In

contrast, when a peremptory strike is waived under other jury

selection systems, no juror is removed from the venire and the

composition of the panel is left unchanged. Under these systems, it is only when a party exercises a peremptory strike or

a strike for cause that the composition of the venire changes

and a previously unidentified prospective juror is randomly

selected to join the venire.3

Of the 28 potential jurors, only three were persons of color,

one of whom had a Latino surname. Among the four potential

alternates, there was one individual with a Latino surname

and no other individual of color. With the one peremptory

strike it exercised against the potential jurors, the prosecution

removed a white juror. By waiving its second peremptory

strike, the prosecution removed the only potential juror with

a Latino surname, Ms. Martinez, who was juror number 28.4

Defense counsel immediately challenged her removal under

Batson, alleging that the prosecutor waived this strike with the

discriminatory intent to remove the sole prospective Latino

juror. The district court asked the prosecutor to respond to the

challenge, and the prosecutor stated that he was waiving all

his remaining strikes. 

3For example, under the “jury box” system 12 prospective jurors are

seated and subjected to voir dire. When a party exercises any challenge —

peremptory or for cause — a new juror is brought in to replace the

excused juror. The jury box system, then, allows less manipulation of the

entire composition of the jury than the struck jury system permits. See

Bettina B. Plevan, Jury Trial Issues, in Current Developments in Federal

Civil Practice, 706 PLI/Lit 443, 451-52 (2004). 

4The record does not reveal whether Ms. Martinez is Latina or Native

American, which was the subject of speculation by the court. Voir dire

revealed that Ms. Martinez works for a Native American tribe and has a

Latino surname, which may be her maiden name or could be a name

acquired through marriage. 

UNITED STATES v. ESPARZA-GONZALEZ 12327
The district court initially found a Batson violation with

respect to the removal of juror Martinez and ordered the clerk

to dismiss the next juror in line, number 27, instead of juror

Martinez. When the prosecutor objected, the district court

noted that it could “take judicial notice of the fact that [the

prosecutor], in many cases, most cases,” exercised all or most

of his peremptory strikes and therefore that his failure to do

so in this case permitted an inference of intentional discrimination. 

After more discussion, the district court retreated from its

initial finding of intentional discrimination and asked defense

counsel whether she had any evidence on “how often the government waived [peremptory] challenges in the past or exercised challenges.” Defense counsel replied that during her last

illegal re-entry case, another prosecutor from the same office

waived a peremptory strike, resulting in the removal of a

minority venireperson. The district court then ordered a short

recess to research case law on whether waiver of a peremptory strike could constitute a Batson violation. When court

resumed, the district court ultimately ruled that the defense

had failed to establish a prima facie case of intentional discrimination. The district court relied on State v. Paleo, 22

P.3d 35 (Ariz. 2001), to conclude that the failure to use a

peremptory strike, without other evidence of discriminatory

intent, cannot constitute a prima facie showing. 

After the 12 jurors were selected, each side was allowed to

exercise a peremptory strike against the four alternate jurors.

If each side had used its strike only two alternates would have

remained. The same selection rules applied to the selection of

the alternates, and when the prosecutor waived his peremptory strike, the only alternate with a Latino surname, Mr.

Lopez, was removed. The defense also challenged this

removal under Batson, and in response the district court asked

the prosecutor to explain the only peremptory strike he exercised. (This was the peremptory strike previously exercised

against a potential juror.) The prosecutor said he struck that

12328 UNITED STATES v. ESPARZA-GONZALEZ
potential juror because he was divorced, worked in maintenance, and “didn’t strike [him] as the type of person that

would be particularly attentive.” Defense counsel pointed out

that several of the remaining jurors were divorced and one

worked in maintenance, yet the prosecutor had not used his

remaining five peremptory strikes to remove these potential

jurors. Nevertheless, the district court found that the defense

failed to establish a prima facie showing of intentional discrimination. The court did, however, require the record to be

certified so that other judges might determine whether a pattern existed at the U.S. Attorney’s office of waiving peremptory strikes in order to unseat jurors of color. The jurors and

alternates empaneled to hear Esparza-Gonzalez’s case

included one person of color, who did not have a Latino surname.

The jury found Esparza-Gonzalez guilty of being an alien

present in the United States without permission after a prior

removal under 8 U.S.C. § 1326(a). On April 27, 2004, the district court applied USSG § 2L1.2(b)(1)(A)(I) to increase

Esparza-Gonzalez’s sentence due to his prior drug trafficking

conviction, for which he was sentenced to over thirteen

months in prison. Based on this enhancement, the district

court sentenced Esparza-Gonzalez to 57 months imprisonment, the low-end of the applicable sentencing range and well

under the 10-year statutory maximum set out in 8 U.S.C.

§ 1326(b)(4). Although no proof of his prior conviction was

presented to the jury, Esparza-Gonzalez did not object to the

accuracy or use of this conviction at the time of sentencing.

Without this enhancement, the sentencing range would have

been only four to ten months. See USSG ch. 5, pt. A, sentencing table (2004). Esparza-Gonzalez timely appealed his conviction and sentence to this court.

STANDARD OF REVIEW

We review de novo the question of whether a district court

must apply Batson to a defendant’s claim of intentional racial

UNITED STATES v. ESPARZA-GONZALEZ 12329
discrimination. See United States v. Alanis, 335 F.3d 965, 967

& n.1 (9th Cir. 2003). But we review a district court’s finding

of whether the defendant established a prima facie case for

racial discrimination only for clear error. United States v.

Steele, 298 F.3d 906, 910 (9th Cir. 2002). Similarly, we

review for clear error the district court’s decision on intent to

discriminate. Id. To reverse under the clear error standard, we

must have “a definite and firm conviction that a mistake has

been committed.” United States v. Elliott, 322 F.3d 710, 714

(9th Cir. 2003) (internal quotation and citation omitted). 

DISCUSSION

I. The Batson Challenges

A. Waiver of Peremptory Strikes Can Form the Basis

of a Batson Challenge 

[1] In Batson, the Supreme Court held that a “[s]tate’s privilege to strike individual jurors through peremptory challenges, is subject to the commands of the Equal Protection

Clause.”5 476 U.S. at 89. Batson and its progeny established

a three-part test for determining whether the exercise of a

peremptory strike violates equal protection. First, the challenging party bears the burden of establishing a prima facie

showing of intentional discrimination. Id. at 93-94. If the

challenging party satisfies this burden, the burden of production shifts to the party exercising the strike to articulate a

race-neutral reason for the strike. Id. at 97-98. The raceneutral reason provided does not have to “rise to the level justifying exercise of a challenge for cause,” id. at 97, nor does

the explanation have to be “persuasive, or even plausible.”

Purkett v. Elem, 514 U.S. 765, 768 (1995). But the reason

5This analysis applies in federal criminal cases as well. See Buckley v.

Valeo, 424 U.S. 1, 93 (1976) (“Equal protection analysis in the Fifth

Amendment area is the same as that under the Fourteenth Amendment.”);

United States v. De Gross, 913 F.2d 1417, 1422 n.7 (1990). 

12330 UNITED STATES v. ESPARZA-GONZALEZ
must be tied to the particular case. Batson, 476 U.S. at 98.

Third, once the striking party provides a race-neutral explanation, the burden returns to the challenging party to show that

the reason given was pretextual and that the striking party

engaged in purposeful discrimination. Id. Because a finding of

intentional discrimination is a finding of fact, a reviewing

court must give appropriate deference to the trial court’s decision at this last stage. Id. at 98 n.21. 

[2] Whether under the struck jury system waivers of

peremptory strikes can form the basis of a Batson challenge

is a question of first impression. In denying that they can, the

district court relied on a case decided by the Arizona Supreme

Court. Paleo, 22 P.3d at 37. The court in Paleo held that

under the struck jury system waivers of peremptory strikes in

combination with other factors can establish a prima facie

case of discrimination under Batson, but that such waivers

standing alone cannot.6Id. Because under this particular

method of jury selection waivers of peremptory strikes result

in the removal of known jurors, we conclude that such waivers are best viewed as effective strikes against identifiable

jurors, and therefore for the purposes of establishing a prima

facie case such waivers should be treated the same as the

exercise of peremptory strikes. 

[3] In Paleo, the Arizona Supreme Court incorrectly concluded that peremptory strikes and the waiver of these strikes

differ because the former require action, while the latter simply inaction. 22 P.3d at 37. Under the struck jury system, both

the exercise of a peremptory strike and the waiver of a strike

remove a single, clearly identified juror. If a peremptory

strike is used, the striking party directly removes an identifi6Two Texas Appellate Courts previously considered, and rejected, the

use of a peremptory strike waiver as a basis for a Batson challenge. See

Mayes v. State, 870 S.W.2d 695, 699 (Tex. App. 1994); Russell v. State,

804 S.W.2d 287, 290-91 (Tex. App. 1991). In both cases the trial court

appears to have used a version of the struck jury system for juror selection.

UNITED STATES v. ESPARZA-GONZALEZ 12331
able juror, and no new juror is seated. Similarly, if a party

waives a peremptory strike in the struck jury system, an identifiable juror (the one with the highest juror number) is

removed and no new juror is seated. However, under other

selection procedures, such as the jury box system, use of a

peremptory strike results in the removal of a known juror who

is replaced with an unknown, randomly selected juror. Under

these systems, the waiver of a peremptory strike does not

remove a juror or introduce a new juror.7 It is only under

selection systems like the jury box system that waiver of a

peremptory strike amounts to inaction or preservation of the

status quo. By contrast, under the struck jury system, a waiver

of a peremptory strike is not merely passive, but is more properly viewed as an effective strike of an identifiable juror. 

For this reason, the struck jury system has long been criticized for allowing the racial engineering of juries. See, e.g.,

United States v. Blouin, 666 F.2d 796, 798 (2d Cir. 1981)

(noting that the struck jury system might “increase the opportunity to shape a jury along racial or other class lines”); James

Oldham, The History of the Special (Struck) Jury in the

United States and its Relation to Voir Dire Practices, the Reasonable Cross-Section Requirement, and Peremptory Challenges, 6 Wm. & Mary Bill Rts. J. 623, 668 (1998) (“It may

be easier, however, to camouflage discrimination with the

struck jury model because the demographics of the entire

panel will be known from the start, making it easier to pick

and choose.”); Jon M. Van Dyke, Jury Selection Procedures:

Our Uncertain Commitment to Representative Panels 150

(1977) (observing that the “struck jury system [has been]

employed to use [the peremptory challenge] power to elimi7

See Plevan, 706 PLI/Lit at 451-52 (“For good or for ill, the ‘jury box’

method focuses on the selection of individual jurors and does not allow the

shaping of an entire jury. Counsel have no way of knowing . . . who will

replace the challenged juror. This means that counsel must decide who to

strike based on the individual’s qualities, rather than whether that person

is better or worse than the replacement.”). 

12332 UNITED STATES v. ESPARZA-GONZALEZ
nate entire races or classes of people from jury venires”). As

the Second Circuit has noted, “[i]t is far from clear, however,

that the right to challenge peremptorily should necessarily

imply a right to shape a jury’s profile” to the extent allowed

by the struck jury system. Blouin, 666 F.2d at 798. Despite

the power the struck jury system gives to parties to shape the

composition of the jury, it has been held to pass constitutional

muster, at least in the abstract. See J.E.B. v. Alabama ex rel

T.B., 511 U.S. 127, 144 n.17 (1994) (noting that Alabama is

free to use the struck jury system so long as its actual use

complies with the Constitution); see also Amsler v. United

States, 381 F.2d 37, 44 (9th Cir. 1967) (upholding the “Arizona system” of jury selection, which is similar to the struck

jury system). 

The Supreme Court recently held that jury selection procedures may give rise to an inference of discriminatory intent

even though the prosecutor is not actively striking potential

jurors. In Miller-El v. Dretke, 125 S. Ct. 2317, 2332-33

(2005), the Court condemned the use of a practice called the

“Texas jury shuffle.” Under the Texas Criminal Code, either

side may request shuffling of the venire panel such that a certain group of potential jurors (those shuffled to the back of the

venire) will likely never be called for voir dire questioning

because a jury will be formed before they reach the front of

the list. Id. at 2332-33 & n.12 (citing Tex. Code Crim. Proc.

Ann., Art. 35.11 (Vernon Supp. 2004-2005)). When used to

exclude potential black jurors, this practice supported an

inference of discrimination. 

[4] Similarly, the struck jury system allows parties who

intentionally want to remove jurors for discriminatory reasons

to camouflage these removals by unseating jurors through the

waiver of peremptory strikes rather than resorting to direct

removals by using peremptory strikes. It is clear that under

the struck jury system, the waiver of peremptory strikes, just

like the exercise of these strikes, allows those of “a mind to

discriminate” to do so. See Batson, 476 U.S. at 96 (observing

UNITED STATES v. ESPARZA-GONZALEZ 12333
that “the defendant is entitled to rely on the fact, as to which

there can be no dispute, that peremptory challenges constitute

a jury selection practice that permits those to discriminate

who are of a mind to discriminate”) (internal quotation and

citation omitted). Failing to provide protection against

removal of identifiable jurors, when such removal is achieved

by waiver rather than exercise of a peremptory strike, would

frustrate the essential purpose of Batson — to eliminate the

race-based selection of jurors — and would violate the equal

protection rights of both the defendant and prospective jurors.

[5] The government correctly notes that it is not required to

exercise all of its peremptory challenges and that it was well

within its rights to waive five of its six peremptory strikes in

this case. In the abstract, this is of course true. The use of

peremptory strikes has long been recognized as a capricious

and arbitrary right used at the will of the striking party. See

Pointer v. United States, 151 U.S. 396, 408 (1894) (observing

that “[t]he right to challenge a given number of jurors without

showing cause is one of the most important of the rights

secured to the accused . . . . [H]e may exercise that right without reason or for no reason, arbitrarily and capriciously”)

(internal quotation omitted). But even this capricious right is

limited by equal protection requirements, and when a waiver

of a peremptory strike creates an inference of intentional discrimination, the party waiving that strike must provide a raceneutral explanation for its decision to effectively remove a

specific juror. The government argues that such a rule would

grant the defendant the right to a jury composed in whole or

part of persons of his race — a right to which no defendant

is entitled. Batson, 476 U.S. at 85. We disagree. Our holding

simply requires the prosecution to provide race-neutral reasons for a waiver of a peremptory strike under the struck jury

system when a defendant establishes a prima facie showing of

intentional discrimination based on the challenged waiver. 

B. The Challenge to Juror Lopez

[6] Having determined that, under the struck jury system,

waivers of peremptory strikes should be treated as effective

12334 UNITED STATES v. ESPARZA-GONZALEZ
peremptory strikes, we begin our analysis of EsparzaGonzalez’s specific Batson challenges with the last juror challenged, juror Lopez. We conclude that Esparza-Gonzalez

established a prima facie case of intentional discrimination

with respect to juror Lopez’s removal from the pool of alternate jurors. To establish a prima facie case, Esparza-Gonzalez

must show that (1) he is a member of a cognizable group; (2)

the prosecutor has removed members of such a group; and (3)

the totality of the circumstances gives rise to an inference that

the prosecutor excluded jurors based on race. Fernandez v.

Roe, 286 F.3d 1073, 1077 (9th Cir. 2002); United States v.

Chinchilla, 874 F.2d 695, 698 (9th Cir. 1989). In making this

showing, the defendant is entitled to rely on the fact that

peremptory challenges provide a useful vehicle for those

intent on discriminating. Batson, 476 U.S. at 96. Likewise, we

hold that under the struck jury system, defendants challenging

waivers of peremptory strikes may rely on the fact that these

waivers also provide a handy means of discriminating. The

Supreme Court has held that a defendant can make out a

prima facie case “by offering a wide variety of evidence, so

long as the sum of the proffered facts gives rise to an inference of discriminatory purpose.” Johnson v. California, 125

S. Ct. 2410, 2416 (2005) (internal citation and quotation omitted). 

[7] Although our precedent does not require a pattern of

removing people of color to establish a prima facie case of a

Batson violation, see United States v. Vasquez-Lopez, 22 F.3d

900, 902 (9th Cir. 1994), such a pattern “provides support for

an inference of discrimination.” Fernandez, 286 F.3d at 1078

(internal quotation removed). At the time that EsparzaGonzalez objected to juror Lopez’s removal, the prosecution

had effectively struck the only potential Latino juror as well

as the only potential Latino alternate. This pattern suggested

a general pattern of racial discrimination. However,

“[b]ecause the numbers are so small (and, hence, potentially

unreliable), two such challenges, standing alone, may not be

sufficient to support an inference of discrimination.” Id. But

UNITED STATES v. ESPARZA-GONZALEZ 12335
see Chinchilla, 874 F.2d at 698 (finding a prima facie case

when the prosecutor struck the only prospective Latino juror

and the only prospective Latino alternate using his first

peremptory strike and his sole peremptory strike for alternate

jurors). 

[8] Esparza-Gonzalez, however, has presented much more

than this pattern of removal to support a prima facie showing.

First, the prosecutor’s actions during the jury selection process provide further support, when viewing the totality of the

circumstances, for an inference of intentional discrimination.

The prosecutor’s effective strikes of potential alternate juror

Lopez and potential juror Martinez after waiving his opportunity to pose any direct questions to the venire panel contributes to an overall inference of discriminatory intent. See

Fernandez, 286 F.3d at 1079 (relying partly on the fact that

the “prosecutor failed to engage in meaningful questioning of

any of the minority jurors” to establish the prima facie showing). The district court conducted the voir dire, which produced very little distinguishing information on jurors Lopez

and Martinez. Juror Lopez and Martinez each responded

directly to one question posed by the district court. Ms. Martinez was one of six veniremembers to respond affirmatively to

the district court’s inquiry into whether any one had previously served on a criminal jury. She reported serving on an

income tax evasion case, which resulted in a verdict. Cf.

Miller-El v. Dretke, 125 S. Ct. at 2325 (engaging in comparative juror analysis and holding that “if a prosecutor’s proffered reason for striking a black panelist applies just as well

to an otherwise-similar nonblack who is permitted to serve,

that is evidence tending to prove purposeful discrimination to

be considered at Batson’s third step”). Though here the prosecutor did not suggest that Ms. Martinez’s effective exclusion

was based on her prior service in a criminal jury, it is nonetheless relevant for the court to consider the differing treatment of similarly situated potential jurors. 

Mr. Lopez was the only veniremember to respond affirmatively to the district court’s question of whether anyone trav12336 UNITED STATES v. ESPARZA-GONZALEZ
eled to Mexico approximately once every two years. Mr.

Lopez stated that he took leisure trips to places like Cancun.

In addition, the judge asked each juror to state for the court

“where [they] live and what [they] do for a living, if [they]

work outside the home, if [they’re] married . . . [and] what

[their] spouse does for a living.” The record does not indicate

that juror questionnaires were used for voir dire, and the prosecutor declined the opportunity to ask additional direct voir

dire questions after the district court finished its questioning.

At the time he waived the peremptory strike causing the

removal of juror Lopez, the prosecutor had very little hard

information to base this decision on. Although the prosecutor

has no obligation to question all potential jurors, his failure to

do so prior to effectively removing a juror of a cognizable

group through a waiver may contribute to a suspicion that this

juror was removed on the basis of race. This suspicion, along

with other factors, may lead to an inference of intentional discrimination. 

[9] Second, the judicial notice taken, at least initially, by

the district court of the prosecutor’s usual practice of exercising all or most of his peremptory strikes further supports an

inference of intentional discrimination, in light of the totality

of the circumstances. Third, the defense counsel’s statement

that another prosecutor from the same office had recently

waived peremptory strikes to remove minority jurors in

another illegal re-entry case also buttresses the defendant’s

case that the totality of the circumstances created an inference

of discriminatory intent. 

[10] Finally, while illegal re-entry is not necessarily a

racially charged crime, in this case, Esparza-Gonzalez is a

Mexican national and thus race is clearly involved in the proceeding. This fact is one that should also be considered when

evaluating whether the totality of the circumstances gives rise

to an inference of discriminatory intent. Presumably recognizing the racial element inherent in the trial, the district court

asked all jurors during voir dire whether “the fact that the

UNITED STATES v. ESPARZA-GONZALEZ 12337
defendant is Hispanic, would . . . in any way influence any of

you in making a decision in this case.” See Simmons v. Beyer,

44 F.3d 1160, 1168 (3d Cir. 1995) (noting a similar question

posed by the trial court when evaluating the defendant’s

prima facie case). Therefore, based on the pattern of exclusion of the only two Latino veniremembers as well as on the

relevant circumstances surrounding the challenge to juror

Lopez’s removal, we conclude that the district court erred in

finding that the defendant failed to make a sufficient showing

to establish a prima facie case. 

[11] Because the district court never required the prosecution to articulate a race-neutral reason for juror Lopez’s

removal, we remand for an evidentiary hearing to allow the

prosecution to present evidence of the actual reason for this

removal. See Paulino v. Castro, 371 F.3d 1083, 1092 (9th Cir.

2004) (citing Batson, 476 U.S. at 100). After this evidence is

presented, the district court should, in the first instance, evaluate the validity of any offered race-neutral explanations for

juror Lopez’s removal. Id.

C. The Challenge to Juror Martinez

Initially, the district court determined that the defense

established a prima facie case under Batson with respect to

the removal of juror Martinez and asked the prosecutor for a

response to the challenge. The prosecutor responded that he

was “waiving the rest” of his peremptory strikes. The district

court was not satisfied with this race-neutral explanation for

the removal of juror Martinez and instructed the clerk to strike

the next juror in line instead of juror Martinez. The prosecutor

objected to the district court’s conclusion that he intentionally

discriminated against juror Martinez and eventually convinced the district court to reassess this Batson challenge. 

The Supreme Court has held that when a party articulates

a race-neutral reason for a challenged strike and the trial court

proceeds to the last step of the Batson inquiry to determine

12338 UNITED STATES v. ESPARZA-GONZALEZ
whether the party intentionally discriminated in making the

strike, the initial question of whether a prima facie showing

was established is moot before the reviewing court. Hernandez v. New York, 500 U.S. 352, 359 (1991) (plurality opinion). In reaching this holding, the Supreme Court relied on an

earlier decision in the Title VII employment discrimination

context. United States Postal Service Bd. of Governors v.

Aikens, 460 U.S. 711, 715 (1983). In Aikens, the Supreme

Court concluded that when “the defendant has done everything that would be required of him if the plaintiff had properly made out a prima facie case, whether the plaintiff really

did so is no longer relevant.” Id.

[12] In Aikens, as in the case at hand, the district court initially concluded that a prima facie case of intentional discrimination had been established, but later returned to this

question instead of focusing on the ultimate inquiry of racial

discrimination vel non. Id. at 714-15 & n.4. The Supreme

Court held that once the district court had found a prima facie

case and required the challenged party to proffer a raceneutral explanation, “the factual inquiry proceeds to a new

level of specificity” and the district court must decide the ultimate issue — the existence or not of discriminatory intent. Id.

at 715 (internal quotations and citation omitted). EsparzaGonzalez argues that this holding applies with equal force to

the Batson context and to his challenge to juror Martinez’s

removal. We agree. Once the district court found that the

removal of juror Martinez violated Batson, it could not

reevaluate this finding of intentional discrimination — even

during the same hearing — based simply on a reassessment

of the strength of the initial prima facie case. See Durant v.

Strack, 151 F. Supp. 2d 226, 242 (E.D.N.Y. 2001) (holding

that once the trial court made a preliminary finding of discriminatory intent, the court could not revert to step one of the

Batson analysis to reevaluate whether a prima facie case had

been established). To allow juror Martinez’s removal, the district court would have had to reverse its earlier conclusion that

the prosecutor intentionally discriminated against her. AcceptUNITED STATES v. ESPARZA-GONZALEZ 12339
ing anything less would run afoul of the Supreme Court’s

decisions in Hernandez and Aikens. 

[13] We disagree with Esparza-Gonzalez’s contention that

this error on the part of the district court is structural and

requires reversal of his conviction. As the Supreme Court did

in Aikens, we remand to the district court for a determination

of the ultimate Batson issue — was the removal of potential

juror Martinez the result of intentional discrimination — with

Esparza-Gonzalez bearing the burden of persuasion. We realize, of course, that the district court at one point did conclude

that there had been intentional discrimination. However,

because the court later withdrew that determination, we think

the best course of action is to remand to the district court. 

II. Sentencing Challenge

Esparza-Gonzalez argues that his Sixth Amendment rights

were violated when the district court increased his sentence

by sixteen levels based on his prior conviction for drug trafficking, a fact not found by the jury convicting him for illegal

re-entry. The Supreme Court has made clear, however, that

enhancements based on prior convictions need not be proven

beyond reasonable doubt by a jury or admitted by the defendant to satisfy the Sixth Amendment. United States v. Booker,

125 S. Ct. 738, 748-49 (2005). 

[14] Esparza-Gonzalez seeks a remand based on the fact

that he was sentenced under the mandatory sentencing

regime. See United States v. Moreno-Hernandez, No.

03-30387, slip op. 10795, 10813 (9th Cir. Aug. 17, 2005)

(“We conclude that defendants are entitled to limited remands

in all pending direct criminal appeals involving unpreserved

Booker error, whether constitutional or nonconstitutional.”).

We therefore REMAND Esparza-Gonzalez’s sentence in

accordance with the limited remand procedures in United

States v. Ameline, 409 F.3d 1073, 1084 (9th Cir. 2005) (en

banc).

12340 UNITED STATES v. ESPARZA-GONZALEZ
CONCLUSION

Based on the foregoing discussion, we REVERSE the district court’s finding that the defendant failed to establish a

prima facie case of discrimination with respect to juror Lopez

and REMAND to the district court to determine if a raceneutral explanation for the exclusion can be provided and if

this explanation is merely pretext for discrimination. We also

REMAND the challenge regarding juror Martinez for further

proceedings to allow the district court to revisit its earlier

determination as to whether intentional discrimination

occurred contrary to Batson such that a new trial is merited.

Lastly, we REMAND Esparza-Gonzalez’s sentence to the district court. 

Reversed in part and remanded in part.

UNITED STATES v. ESPARZA-GONZALEZ 12341