United States v. Sosa-Rubio ( 1999 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS JUN 28 1999
TENTH CIRCUIT PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
No. 98-1335
v. (D.C. No. 98-CR-119-D)
(D. Colo.)
JAMIE SOSA-RUBIO,
Defendant-Appellant.
ORDER AND JUDGMENT *
Before SEYMOUR, Chief Judge, BALDOCK and HENRY, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See F ED . R. A PP . P. 34(a); 10th Cir. R. 34.1(G).
Jaime Sosa-Rubio entered a guilty plea to unlawfully reentering the United
States after deportation for an aggravated felony in violation of 8 U.S.C. §§
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, or collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
1326(a) and (b)(2). He appeals the district court’s denial of his motion to dismiss
the indictment and raises an issue regarding his sentence. Counsel appointed to
represent defendant on appeal filed a brief pursuant to Anders v. California, 386
U.S. 738 (1967). We dismiss the appeal under Anders.
Mr. Sosa-Rubio, a Mexican citizen, was convicted and sentenced in state
court for possession of LSD, a felony under Colorado Law. In 1996 upon
completion of his sentence and following a group deportation hearing, Mr. Sosa-
Rubio was deported to Mexico. In 1998, he was indicted for illegally reentering
the United States. He moved to dismiss the indictment, arguing his 1996
deportation hearing did not comport with due process because he was not advised
of the right of judicial review. While the district court agreed that the 1996 group
deportation implicated procedural errors, the court denied the motion to dismiss
because Mr. Sosa-Rubio failed to establish prejudice stemming from the
proceedings.
Mr. Sosa-Rubio has asked his counsel to appeal this dismissal and to
challenge the correctness of his sentence. Anders holds that if counsel finds a
case to be wholly frivolous after conscientious examination, he should so advise
the court and request permission to withdraw. Counsel must in addition submit to
both the court and his client a brief referring to anything in the record arguably
supportive of the appeal. The client may then raise any points he chooses, and the
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appellate court thereafter undertakes a complete examination of all proceedings
and decides whether the appeal is in fact frivolous. If it so finds, it may grant
counsel’s request to withdraw and dismiss the appeal. See Anders, 386 U.S. at
744.
In his Anders brief, counsel first contends the district court erred in denying
the motion to dismiss the indictment based on a failure to show prejudice. The
argument is that the settled Tenth Circuit law requiring a showing of prejudice to
establish fundamental unfairness in a collateral challenge to an underlying
immigration proceeding incorrectly interpreted the Supreme Court’s holding in
United States v. Mendoza-Lopez, 481 U.S. 828, 839-40 (1987). The defense
contends that no showing of prejudice was required under Mendoza-Lopez and
Mr. Sosa-Rubio’s indictment should therefore have been dismissed despite lack of
prejudice because he proved he was deprived of a right to appeal. The law in this
circuit clearly states that where a defendant wishes to successfully collaterally
challenge a deportation hearing effectively foreclosing his right to a direct appeal,
the defendant must first show “fundamental unfairness,” which requires a
showing of prejudice. United States v. Wittgenstein, 163 F.3d 1164, 1170 (10th
Cir. 1998); United States v. Aranda-Hernandez, 95 F.3d 977, 980 (10th Cir.
1996); United States v. Marez-Valeta, 26 F.3d 992, 998 (10th Cir. 1994); see also
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Michelson v. INS, 897 F.2d 465, 468 (10th Cir. 1990). 1 Since “this panel is not an
en banc panel and, thus, is not in the business of overturning prior panels’
decisions,” United States v. Alvarez, 142 F.3d 1243, 1247 (10th Cir. 1998), we
may not adopt defendant’s position in direct contravention of a host of this
court’s prior decisions interpreting Mendoza-Lopez. 2 Because Mr. Sosa-Rubio
has never shown prejudice, his motion to dismiss the indictment was properly
denied. In light of clear law contrary to his position, his appeal of this issue is
frivolous.
The second argument is that Mr. Sosa-Rubio’s conviction for possession of
LSD, a state felony, is only considered a federal misdemeanor and Mr. Sosa-
Rubio did not therefore commit an aggravating felony for federal sentencing
purposes. For purposes of immigration offenses, the term “aggravated felony” is
defined in 8 U.S.C. § 1101(a)(43)(B) to include “a drug trafficking crime (as
1
Congress adopted a similar test in 8 U.S.C. § 1326, applicable to criminal
proceeding instituted after April 24, 1996. Like here, the statute requires a
showing of both fundamental unfairness and a deprivation of judicial review. 8
U.S.C. § 1326(d). We have explicitly held this standard to be constitutionally
sound. See Wittgenstein, 163 F.3d at 1170.
2
Moreover, all other circuits considering the issue appear to similarly
interpret Mendoza-Lopez as requiring a showing of prejudice. See United States
v. Loaisiga, 104 F.3d 484, 487 (1st Cir. 1997); United States v. Fares, 978 F.2d
52, 57 (2d Cir. 1992); United States v. Encarnacion-Galvez, 964 F.2d 402, 406
(5th Cir. 1992); United States v. Espinoza-Farlo, 34 F.3d 469,471 (7th Cir. 1994);
United States v. Santos-Vanegas, 878 F.2d 247, 251 (8th Cir. 1989); United States
v. Proa-Tovar, 975 F.2d 592, 595 (9th Cir. 1992) (en banc); United States v.
Holland, 876 F.2d 1533, 1536 (11th Cir. 1989).
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defined in section 924(c) of Title 18).” Section 924(c)(2) in turn defines such a
crime as “any felony punishable under the Controlled Substances Act,” and the
Controlled Substances Act directs that a felony means “any Federal or State
offense classified by applicable Federal or State law as a felony.” 21 U.S.C. §
802(13) (emphasis added). Thus, a state felony conviction may constitute an
aggravated felony for purposes of 8 U.S.C. § 1326(b)(2). See United States v.
Valenzuela-Escalante, 130 F.3d 944 (10th Cir. 1997) (linking a state drug
trafficking crime to an aggravated felony for immigration purposes).
Accordingly, Mr. Sosa-Rubio’ attempt to reclassify his LSD conviction as outside
the scope of an aggravated felony is fruitless.
After review of the entire proceedings, we conclude that the record
establishes no non-frivolous ground for appeal. The appeal is therefore
DISMISSED and counsel’s motion to withdraw is GRANTED.
ENTERED FOR THE COURT
Stephanie K. Seymour
Chief Judge
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