
    UNITED STATES of America, Plaintiff-Appellee, v. Marcelo Joel SANTOS-CORDERO, Defendant-Appellant.
    No. 15-50312
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted August 31, 2016 Pasadena, California
    Filed September 28, 2016
    Arash J. Fuladian, Assistant U.S. Attorney, Tara K. McGrath, Assistant U.S. Attorney, Helen H. Hong, Assistant U.S. Attorney, Nicole Ries Fox, Assistant U.S. Attorney, Office of the US Attorney, San Diego, CA, for Plaintiff-Appellee
    Kristi A. Hughes, Federal Defenders of San Diego, Inc., San Diego, CA, for Defendant-Appellant
    Before: WARDLAW and BYBEE, Circuit Judges and ZIPPS, District Judge.
    
      
      
         The Honorable Jennifer G. Zipps, United States District Judge for the District of Arizona, sitting by designation.
    
   MEMORANDUM

Appellant Marcelo Santos-Cordero was convicted by a jury for illegal reentry, in violation of 8 U.S.C. § 1326, and making a false claim to United States citizenship, in violation of 18 U.S.C. § 911. On appeal, he argues the district court misapplied the procedure outlined in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), when evaluating the Government’s peremptory strike of a Hispanic juror.

A Batson challenge is evaluated using a three-step procedure. In the first step, “the defendant must make out a prima facie case ‘by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose.’” Johnson v. California, 545 U.S. 162, 168, 125 S.Ct. 2410, 162 L.Ed.2d 129 (2005) (quoting Batson, 476 U.S. at 93-94, 106 S.Ct. 1712). Second, if that prima facie case is made out, the “ ‘burden shifts to the State to explain adequately the racial exclusion’ by offering permissible race-neutral justifications for the strikes.” Id. (quoting Batson, 476 U.S. at 94, 106 S.Ct. 1712). Third, the trial court must decide whether, given all of the relevant facts, the race-neutral justification is credible, or defendant has proven purposeful discrimination. Id.

The district court violated the procedure outlined in Batson when at step one, before offering defense counsel an opportunity to explain its objection, it offered its own speculation as to reasons the prosecutor might have challenged the juror. Currie v. McDowell, 825 F.3d 603, 609-10 (9th Cir. 2016); Paulino v. Castro, 371 F.3d 1083, 1090 (9th Cir. 2004). The district court responded to Santos-Cordero’s Bat-son challenge by stating that while the juror appeared to be Hispanic, she had clearly displayed great hesitance in her answers about immigration and there was no evidence to suggest the challenge was exercised on an invidious basis. “[I]t does not matter that the prosecutor might have had good reasons to strike the prospective jurors. What matters is the real reason they were stricken.” Paulino, 371 F.3d at 1090. “[T]he existence of ‘grounds upon which a prosecutor could reasonably have premised a challenge,’ does not suffice to defeat an inference of racial bias at the first step of the Batson framework.” Johnson v. Finn, 665 F.3d 1063, 1069 (9th Cir. 2011). Therefore, the district court erred by relying on its own speculation about the prosecutor’s potential reasons for striking the juror when it concluded that a pHma facia showing of discrimination had not been made at step one.

Accordingly, we remand this case to the district court to conduct a proper Batson analysis.

REVERSED. 
      
       This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
     