United States v. Jurado-Lara , 287 F. App'x 704 ( 2008 )

FILED
United States Court of Appeals
Tenth Circuit
July 29, 2008
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
FOR THE TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 07-3271
(D.C. No. 05-CR-10213-MLB)
EVER MIGUEL JURADO-LARA, (D. Kan.)
Defendant-Appellant.
ORDER AND JUDGMENT *
Before HOLMES, PORFILIO, and ANDERSON, Circuit Judges.
Ever Miguel Jurado-Lara, a citizen of the Republic of Mexico, appeals from
the sentence imposed for crimes relating to his use of false information and false
documents to obtain employment in the United States. Although Mr. Jurado-Lara
was removed from the United States during his period of supervised release and
*
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
after completion of his 16-month term of imprisonment, we conclude that we have
jurisdiction over his appeal. We affirm.
I.
To obtain employment in the United States, Mr. Jurado-Lara used the name
and social-security number of Michael Soto, a United States citizen. Beginning in
early 2000, he presented a series of employers with photo-ID cards with
Mr. Jurado-Lara’s picture, but Mr. Soto’s name and social-security number. In
January 2004, Mr. Jurado-Lara married Melissa Macias, a United States citizen.
Through his wife’s petition for alien relative, he received a social-security card
and an employment-authorization card valid from June 2004.
Mr. Jurado-Lara then procured work under his own name and, in 2005, he
applied for permanent-resident status in his own name. In February 2007, his
wife received a notice of approval of the relative-immigration-visa petition she
filed on his behalf. The same month, however, he was taken into custody based
on criminal charges arising from his earlier use of Mr. Soto’s identity.
A jury found Mr. Jurado-Lara guilty of two counts of possession of false
documents in violation of 18 U.S.C. § 1546(a), two counts of making false
statements in violation of 18 U.S.C. § 1001(a)(3), and five counts of misuse of a
social security number in violation of 42 U.S.C. § 408(a)(7)(B). A prepared
Presentence Investigation Report (PIR) stated that the applicable sentencing
guideline, U.S.S.G. § 2B1.1, established a base offense level of six and increased
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the minimum offense level to 12 because Mr. Jurado-Lara’s offenses “involved
. . . the unauthorized . . . use of any means of identification unlawfully to produce
or obtain . . . other means of identification.” Id. § 2B1.1(b)(1)(C)(I). The
resulting advisory guidelines range was a prison term of 10 to 16 months.
Overruling Mr. Jurado-Lara’s objections to the PIR, the district court sentenced
him to a term of 16 months, followed by two years of supervised release.
Mr. Jurado-Lara filed a timely notice of appeal challenging his sentence–
specifically the six-level enhancement of his offense level. During the pendency
of the appeal, he completed his sentence and was removed to Mexico.
II.
Before we can address the merits of Mr. Jurado-Lara’s arguments we must
determine if his deportation moots his case and deprives this court of jurisdiction.
When “intervening acts destroy a party’s legally cognizable interest” in the
lawsuit, the federal courts no longer have jurisdiction to decide a matter.
Moongate Water Co. v. Dona Ana Mut. Domestic Water Consumers Ass’n,
420 F.3d 1082, 1088 (10th Cir. 2005) (quotation omitted). In particular, when a
defendant completes the appealed sentence before an appellate court reaches a
decision, “the court must determine whether sufficient collateral consequences
flow from the underlying judgment and the completed sentence to save the appeal
from mootness.” United States v. Meyers, 200 F.3d 715, 718 (10th Cir. 2000). A
“collateral consequence” of the conviction means “some concrete and continuing
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injury other than the now-ended incarceration.” Spencer v. Kemna, 523 U.S. 1, 7
(1998).
The government argues that Mr. Jurado-Lara’s case is controlled by the
holding of United States v. Vera-Flores, 496 F.3d 1177 (10th Cir. 2007). In
Vera-Flores, we dealt with a defendant who, like Mr. Jurado-Lara, had been
deported following his term of incarceration but prior to the expiration of his term
of supervised release. Although the defendant was legally subject to a one-year
term of supervised release, his deportation “eliminated all practical consequences
associated with serving a term of supervised release.” Id. at 1181. Thus, the
removal “rendered [the defendant’s] appeal moot because he had no “actual injury
likely to be redressed by a favorable judicial decision.” Id. at 1181-82.
The only collateral consequence asserted by Vera-Flores was that if he
obtained “permission to apply for lawful reentry during the pendency of his . . .
supervised release and were he actually admitted during that time period, he
would be forced to serve out the remainder of his supervised release term.” Id. at
1182. This hypothetical scenario was too “remote” and “speculative” to save his
appeal from mootness. Id. (internal quotation marks omitted). Therefore, we
dismissed the case for lack of jurisdiction.
In contrast, Mr. Jurado-Lara asserts collateral consequences with regard to
the immigration laws. An actual sentence of 12 months or greater makes his
conviction under 18 U.S.C. § 1546 an “aggravated felony” for immigration
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purposes, 8 U.S.C. § 1101(a)(43)(P); a noncitizen convicted of an aggravated
felony is permanently inadmissible, 8 U.S.C. § 1182(a)(9)(A)(ii)(II). If this court
determined, however, that the application of the six-level enhancement was
erroneous, the upper end of the corrected advisory guideline range would be
under 12 months. As a result, Mr. Jurado-Lara would not have an
aggravated-felony conviction and would not be subject to the statutory bar.
We conclude that Mr. Jurado-Lara met his burden of demonstrating
“collateral consequences adequate to meet Article III’s injury-in-fact
requirement.” Spencer, 523 U.S. at 14. His appeal is not moot because the
asserted collateral consequences from the judgment give Mr. Jurado-Lara “a
substantial stake” in the outcome of the case. See Carafas v. LaVallee, 391 U.S.
234, 237 (1968) (internal quotation marks omitted).
Furthermore, we decline to adopt a blanket rule that a “deported
defendant’s inability to appear in court for resentencing pursuant to Federal
Rule of Criminal Procedure 43 preclude[s] the court from affording relief.”
Vera-Flores, 496 F.3d at 1182 n.4 (discussing the holding of United States v.
Rosenbaum-Alanis, 483 F.3d 381, 383 (5th Cir. 2007)), cert. denied,
128 S. Ct. 1216 (2008). Rule 43 provides that a defendant’s presence is
required at sentencing. And “a defendant has a due process right to be
present at a proceeding whenever . . . a fair and just hearing would be
thwarted by his absence.” United States v. Gagnon, 470 U.S. 522, 526 (1985)
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(internal quotation omitted). The rights afforded by Rule 43 and due process,
however, can be waived with the express or implied consent of the accused.
See id. at 526-28; Fed. R. Crim. P. 43(c). Mr. Jurado-Lara’s continued
pursuit of his appeal may be considered an implied waiver of the right to be
present at a potential resentencing hearing. See United States v. Nelson,
450 F.3d 1201, 1211 (10th Cir. 2006) (“[A]n express statement of waiver by
the defendant is not required; instead, waiver can be inferred from the
defendant’s actions and words.”) (quotation omitted).
In sum, dismissal is not the appropriate resolution of Mr. Jurado-Lara’s
appeal. We therefore proceed to analyze the merits of his argument.
III.
Mr. Jurado-Lara asserts that the district court improperly enhanced his
sentence under U.S.S.G. § 2B1.1(b)(10)(C)(I) because the government failed
to prove that he used Mr. Soto’s identifying information without Mr. Soto’s
authorization. See United States v. Williams, 374 F.3d 941, 947 (10th Cir.
2004) (stating government bears burden of establishing sentence
enhancements). Pursuant to U.S.S.G. § 2B1.1(b)(10)(C)(I), the government
was required to show that Mr. Jurado-Lara engaged in “the unauthorized
transfer or use of any means of identification unlawfully to produce or obtain
any other means of identification.” The “means of identification” must “be of
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an actual (i.e. not fictitious) individual,” § 2B1.1 cmt. n.9(A), used “without
that individual’s authorization,” id. cmt. n.9(C)(I).
The record does lack direct evidence of Mr. Soto’s permission to allow
the illegal use of his name and assigned social security number, and there is
no specific finding by the court on this aspect of the enhancement. However.
the objection offered by the defense was general in nature. Neither in
counsel’s written objection to the PIR nor in his oral argument at the
sentencing hearing was there any mention of the authorization issue.
Certainly, there was nothing in the objection itself which would call the
court’s attention to the precise point raised on appeal.
We have previously “highlight[ed] the need for a party to raise specific
objections before the district court.” United States v. Smith, No. 07-6206,
2008 WL 2699388, at *8 (10th Cir. July 11, 2008). If a defendant raises a
specific objection to an enhancement, then the district court is given the
opportunity to “hear[] evidence and ma[k]e findings regarding the factual
question at issue.” Id. Although “‘we have reviewed sentencing errors that
were not raised in the district court under a plain error standard, plain error
review is not appropriate when the alleged error involves the resolution of
factual disputes.’” Id. (quoting United States v. Easter, 981 F.2d 1549, 155-56
(10th Cir. 1992)). In accordance with our established precedent, we will not
review Mr. Jurado-Lara’s objection to the enhancement.
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The judgment of the district court is AFFIRMED.
Entered for the Court
Stephen H. Anderson
Circuit Judge
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