United States v. Cisneros-Garcia , 159 F. App'x 464 ( 2005 )


Menu:
  •                                UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    No. 04-4834
    UNITED STATES OF AMERICA,
    Plaintiff - Appellee,
    versus
    JAIME CISNEROS-GARCIA, a/k/a Marcos          Jaime
    Garcia, a/k/a Marco Antonio Cruz,
    Defendant - Appellant.
    Appeal from the United States District Court for the Western
    District of North Carolina, at Charlotte. Richard L. Voorhees,
    District Judge. (CR-03-96)
    Argued:   September 22, 2005              Decided:   December 14, 2005
    Before TRAXLER and GREGORY, Circuit Judges, and R. Bryan HARWELL,
    United States District Judge for the District of South Carolina,
    sitting by designation.
    Affirmed in part, vacated in part, and remanded by unpublished per
    curiam opinion.
    ARGUED: Aaron Edmund Michel, Charlotte, North Carolina, for
    Appellant.    Amy Elizabeth Ray, OFFICE OF THE UNITED STATES
    ATTORNEY, Asheville, North Carolina, for Appellee.      ON BRIEF:
    Gretchen C. F. Shappert, United States Attorney, Joshua B. Howard,
    Assistant United States Attorney, Charlotte, North Carolina, for
    Appellee.
    Unpublished opinions are not binding precedent in this circuit.
    See Local Rule 36(c).
    PER CURIAM:
    Defendant-Appellant, Jaime Cisneros-Garcia, appeals from his
    125 month prison sentence for being a previously deported alien
    found in the United States in violation of 
    8 U.S.C. §§ 1326
    (a)1 and
    (b)(2).2      As   explained   below,    we   affirm     Cisneros-Garcia’s
    conviction,   however,   we    vacate   his   sentence    and   remand   for
    resentencing.
    1
    Subject to subsection (b) of this section, any alien who--
    (1) has been denied admission, excluded, deported, or
    removed or has departed the United States while an order
    of exclusion, deportation, or removal is outstanding, and
    thereafter
    (2) enters, attempts to enter, or is at any time found
    in, the United States, unless (A) prior to his
    reembarkation at a place outside the United States or his
    application for admission from foreign contiguous
    territory, the Attorney General has expressly consented
    to such alien's reapplying for admission; or (B) with
    respect to an alien previously denied admission and
    removed, unless such alien shall establish that he was
    not required to obtain such advance consent under this
    chapter or any prior Act,
    shall be fined under Title 18, or imprisoned not more
    than 2 years, or both.
    
    8 U.S.C. § 1326
    (a).
    2
    “[I]n the case of any alien described in such subsection . .
    . whose removal was subsequent to a conviction for commission of an
    aggravated felony, such alien shall be fined under such Title,
    imprisoned not more than 20 years, or both.”           
    8 U.S.C. § 1326
    (b)(2).
    2
    I.
    Cisneros-Garcia claims that the district judge erred in (i)
    denying his motion for judgment of acquittal; (ii) applying a
    sixteen offense level enhancement called for under the sentencing
    guidelines; and (iii) applying three criminal history points rather
    than two criminal history points.
    Cisneros-Garcia’s trial began on October 16, 2003. The United
    States called as its first witness Special Agent Jose Romero, whose
    testimony was used to lay the foundation of the case.                On cross-
    examination    of   Romero,   defense      counsel,   for    the   first   time,
    challenged the validity of the prior deportation order and asked
    that the issue go to the jury as an affirmative defense.                     The
    government objected to the line of questioning and presented the
    district court with case law to support their position that a prior
    deportation is a matter of law for the court rather than the jury
    to decide.    The district court found that, in light of his prior
    conviction    for   an   aggravated   felony,    Cisneros-Garcia       did   not
    present evidence to support that the deportation was fundamentally
    unfair and sustained the government’s objection.
    At the close of the government’s case, the defendant made a
    motion for judgment of acquittal pursuant to Federal Rule of
    Criminal Procedure 29, asserting that the government had not proven
    his actual deportation prior to his re-entry.               The district court
    denied the motion.       Defense counsel rested without presenting any
    3
    evidence and renewed his Rule 29 motion, which again was denied.
    The jury found the defendant guilty on October 17, 2003.                  Defense
    counsel made a Rule 29 motion for reconsideration “due to the
    ineffectiveness       of   counsel   in       failing   adequately   to    assist
    [Defendant] in his defense.”              (J.A. 229-66.)      This motion was
    denied.
    The presentence report (PSR) assessed a base offense level of
    eight,    with   an   additional     sixteen      level   enhancement     because
    Cisneros-Garcia had been previously deported after conviction of an
    aggravated felony for which the sentence imposed exceeded thirteen
    months.   See § 2L1.2(b)(1)(A)(I).             The PSR reflected a subtotal of
    ten criminal history points.          The PSR called for two additional
    criminal history points because the defendant committed the new
    offense while on probation for a prior offense.               See § 4A1.1(d).
    The PSR also called for an additional one criminal history point
    because the new offense was committed less than two years from his
    release for prior offenses.            See § 4A1.1(e).          These factors
    resulted in a total of thirteen criminal history points and a
    criminal history category of VI.                The defendant opposed the §§
    4a1.1(d) and (e) three criminal history points and instead argued
    for two criminal history points.              The district court overruled the
    objection.
    The district court adopted an offense level of 24 and a
    criminal history category of VI and sentenced Cisneros-Garcia to
    4
    125   months   in   prison.     The   sentencing   court     also   stated   a
    provisional sentence, treating the guidelines as advisory, of the
    same period of months.
    II.
    Cisneros-Garcia first claims that the district court erred in
    denying his motion for judgment of acquittal on the basis that his
    earlier deportation proceeding was conducted without sufficient
    procedural due process.         He seeks to collaterally attack the
    validity of the underlying deportation order.
    Cisneros-Garcia asserts that a warrant of removal/deportation
    was   improperly    issued    and   executed   while   the   appeal   of   his
    deportation was pending.        He argues that because his appeal was
    pending, execution of the warrant was automatically stayed pending
    the appeal.     See 
    8 C.F.R. § 3.6
    .         Consequently, he argues that
    while he “departed the United States” he did not do so “while an
    order of exclusion, deportation, or removal [was] outstanding.”
    An illegal alien has almost no right to remain in the United
    States.   See Appiah v. United States, 
    202 F.3d 704
    , 709 (4th Cir.
    2000).    Suspension of deportation is an act of grace that rests
    entirely in the discretion of the Attorney General.                   See 
    id.
    However, where a determination in an administrative proceeding is
    to play a critical role in a later criminal sanction, there must be
    some meaningful review of the administrative proceeding.                   See
    5
    United States v. Mendoza-Lopez, 
    481 U.S. 828
    , 837-38 (1987).
    “Depriving an alien of the right to have the disposition in a
    deportation hearing reviewed in a judicial forum requires, at a
    minimum, that review be made available in any subsequent proceeding
    in which the result of the deportation proceeding is used to
    establish an element of a criminal offense.”    
    Id. at 838
    .     Congress
    codified the protections mandated by Mendoza-Lopez in 
    8 U.S.C. § 1326
    (d).   See United States v. Wilson, 
    316 F.3d 506
    , 510 n. 1. (4th
    Cir. 2003).   Under 
    8 U.S.C. § 1326
    (d),
    In a criminal proceeding under this section, an alien may
    not challenge the validity of the deportation order
    described in subsection (a)(1) or subsection (b) unless
    the alien demonstrates that--
    (1) the alien exhausted any administrative remedies
    that may have been available to seek relief against the
    order;
    (2) the deportation proceedings at which the order
    was issued improperly deprived the alien of the
    opportunity for judicial review; and
    (3) the entry of the order was fundamentally unfair.
    The fundamental unfairness prong has two sub-parts.        A defendant
    must show: (1) his due process rights were violated by defects in
    the   underlying   deportation   proceeding;   and   (2)   he   suffered
    prejudice as a result of the defects.   See Wilson, 
    316 F.3d at 510
    .
    A showing of prejudice requires a defendant to prove a reasonable
    likelihood that, but for the errors complained of, he would not
    have been deported.    See 
    id.
    Appellant did not challenge his prior deportation before
    trial, but instead attempted to collaterally attack his prior
    6
    deportation in front of the jury.            While § 1326(d) permits an alien
    to challenge the legality of his prior deportation order, it was
    not   intended    that   the    validity       of     a    prior     deportation   be
    contestable as part of a § 1326 jury trial.                    Mendoza-Lopez, 
    481 U.S. at 836
    .       Instead, any review of the legality of a prior
    deportation order should be undertaken pretrial: “The [Mendoza-
    Lopez] Court concluded that since lawful deportation was a material
    element of the statutory offense, due process required, in this
    limited   situation,     a    pretrial       review       of   whether     the   prior
    deportation order was lawful.”           Smith v. Ashcroft, 
    295 F.3d 425
    ,
    431 (4th Cir. 2002) (emphasis in original).
    Appellant’s    effort     to   attack     the       validity    of   his   prior
    deportation in front of the jury does not fit the niche carved out
    by Mendoza-Lopez because it did not come to the judge before trial.
    Having failed to present the issue to the district court before
    trial, the appellant waived any challenge he may have had to
    collaterally attack his prior deportation.
    Even if Cisneros-Garcia had not waived his right to challenge
    the legality of his prior deportation before trial, the district
    judge properly denied his motion for judgment of acquittal.                        As
    discussed above, the appellant must first establish that his due
    process   rights    were      violated   by     defects        in    the   underlying
    deportation proceeding.        The first step in evaluating a procedural
    due   process    claim   is    determining      whether        a    constitutionally
    7
    protected interest has been implicated.      See Tigrett v. Rector &
    Visitors of Univ. of Va., 
    290 F.3d 620
    , 628 (4th Cir. 2002).
    Appellant concedes that he was seeking a form of discretionary
    relief from the deportation order pursuant to § 212(c) of the
    Immigration   and   Nationality   Act.     However,    this   Court   has
    explicitly held that there is no due process right to § 212(c)
    relief.   See Wilson, 
    316 F.3d 506
    ; Smith, 
    295 F.3d 425
    .       There can
    be no due process violation where a defendant is not entitled to
    seek purely discretionary § 212(c) relief.
    Appellant has also failed to show that he suffered prejudice
    as a result of the claimed violation.       To establish prejudice a
    defendant must show a reasonable likelihood that but for the errors
    complained of, the defendant would not have been deported.            See
    Wilson, 
    316 F.3d 506
    .    This court has stated that “when an alien
    has a serious record of criminal activity, he must demonstrate
    ‘unusual or outstanding’ equities in order to be eligible for a
    favorable exercise of discretion.”       
    Id. at 511
    .    Cisneros-Garcia
    had at least two prior convictions for transporting or selling
    narcotic controlled substances and one probation revocation at the
    time of his deportation proceedings.       Appellant was convicted of
    using or being under the influence of controlled substances prior
    to deportation.     Appellant has failed to show that he would not
    have been deported but for the alleged due process violations. The
    district court correctly concluded that defendant demonstrated no
    8
    equities to support a finding of prejudice and that the collateral
    attack was invalid.
    III.
    Cisneros-Garcia next claims that the district court erred in
    ruling   that     the   alleged    fact   of    a   deportation     following   an
    aggravated felony is not an element of the crime; rejecting his
    challenge   to     that    element;    and     overruling   his     objection   at
    sentencing to a sixteen offense level enhancement.
    As noted above, the PSR establishes a base offense level of
    eight and enhances this by sixteen levels based on the deportation
    following a conviction of a felony that is a drug trafficking
    offense for which the sentence imposed exceeded thirteen months.
    See § 2L1.2(b)(1)(A)(I).          Appellant argues that this sixteen point
    enhancement was improper because it violates the Sixth Amendment
    right to a jury trial on each essential element of the crime.
    Appellant clarifies that his “argument is not that the federal
    sentencing guidelines are unconstitutional, but that the guidelines
    are subject to constitutional constraints including the limitation
    on conditions under which a statutory maximum sentence, as the
    concept is defined under Blakely [v. Washington, 
    542 U.S. 296
    (2004)],    may    be     enhanced.”      (Appellant’s      Brief    p.   38-39.)
    Appellant further asserts that the facts do not support such a
    sixteen point enhancement.
    9
    Subsection (a) of 
    8 U.S.C. § 1326
     sets forth the elements of
    the crime of reentry by a previously deported alien and does not
    include reference to an alien’s criminal history.               Subsection (b)
    of 
    8 U.S.C. § 1326
     provides enhanced penalties for the crime and
    specifically addresses the sentencing consequences of a prior
    aggravated felony conviction.            The United States Supreme Court
    addressed    the    distinction    between   §§   1326    (a)   and   (b)(2)   in
    Alamendarez-Torres v. United States, 
    523 U.S. 224
     (1998).                       In
    Alamendarez-Torres the Court stated that “[i]f subsection (b)(2)
    sets forth a separate crime, the Government would be required to
    prove to the jury that the defendant was previously deported
    ‘subsequent    to    a    conviction   for   commission    of   an    aggravated
    felony.’”    
    Id. at 234-235
    .       The Court then held that Congress had
    set forth a sentencing factor in subsection (b)(2) and not a
    separate criminal offense.         See 
    id. at 235
    .
    Prior    to    his    1999   deportation,    the    appellant     had   been
    convicted of more than one felony drug trafficking offense.                  These
    crimes constitute aggravated felonies as defined in 
    8 U.S.C. § 1101
    (a)(43).       The United States gave the appellant notice that it
    intended to pursue the sentencing enhancement by charging in the
    indictment that he was “an alien who had been previously convicted
    of an aggravated felony.”          (J.A. 14.)     At trial, the appellant
    conceded    the    prior    aggravated   felony   conviction      rather     than
    requiring the government to establish the details of his criminal
    10
    history before the jury.        With the agreement of the district court
    and   the   appellant,   the     United    States   submitted   a   redacted
    indictment to the jury that omitted reference to the aggravated
    felonies.      The    parties     redacted   references   to    appellant’s
    aggravated felonies in other trial exhibits as well.            In light of
    the stipulations of the parties at trial and the documentation of
    appellant’s criminal history prepared for the sentencing court, the
    district court correctly applied the sixteen level enhancement.
    Additionally, we note that the Supreme Court held in Blakely
    that the jury trial requirement of facts that increase a criminal
    defendant’s statutory maximum sentence does not apply to “the fact
    of a prior conviction.”     Blakely, 
    542 U.S. at 301
    .       This exception
    was recently reaffirmed in the decision of United States v. Booker,
    
    125 S.Ct. 738
     (2005).
    IV.
    Appellant’s last claim is that the district court erred in
    applying three criminal history points rather than two criminal
    history points.3     Appellant argues that to add more than two points
    for his being found in the United States within two years of his
    3
    While the appellant refers to this as an “enhancement,” this
    is not an appropriate use of the term as it is used in the
    Sentencing Guidelines. To determine a defendant’s criminal history
    category under § 4A1.1, one is to add the total points from items
    (a) through (f).       These points are not referred to as
    “enhancements.”
    11
    release from his 2002 state conviction (§ 4A1.1(e)) would be to
    take judicial notice of facts not decided by the jury.4               In his
    brief appellant states:
    To attribute more to Mr. Garcia would be to take judicial
    notice of facts not decided by the jury, such as the
    alleged reentry into the United States hours after he was
    deported and the alleged status of being found in the
    United States during the three days that he was on
    probation in 2002 for the very same offense that gave
    rise to the two-point enhancement of being found in the
    United States on May 9, 2003, within two years of his
    release from this 2002 conviction. This would appear to
    inflict multiple punishments for the same conduct and to
    result in excessive and unfair punishment.
    (Appellant’s Brief p. 41-42.)
    The total of the appellant’s criminal history points was
    thirteen which placed him in a criminal history category of VI.            In
    determining the appellant’s criminal history category, the district
    court    added   two   points,   pursuant   to   §   4A1.1(d),   because   the
    defendant     was   on   probation   for    Trafficking     in   Cocaine    by
    Possession.      The district court also added one point, pursuant to
    § 4A1.1(e), because the instant offense was committed less than two
    years following the defendant’s release from custody.5
    4
    As discussed below, the district court only added one point
    pursuant to § 4A1.1(e), however, the appellant apparently
    acknowledges that under § 4A1.1(e) two points are to be added
    unless two points have already been added under item (d).
    5
    As mentioned above, the appellant does not challenge the
    addition of this one point and apparently concedes that two points
    are to be added if no points are added under item (d).
    12
    When considering the appellant’s challenge to the district
    court’s application of two criminal history points pursuant to §
    4A1.1(d),6 we must determine whether the factual basis for the
    application comes within the prior conviction exception.               As
    previously noted, the Supreme Court held in Blakely that the jury
    trial requirement of facts that increase a criminal defendant’s
    statutory maximum sentence does not apply to “the fact of a prior
    conviction,”   Blakely, 
    542 U.S. at 301
    , and this exception was
    recently reaffirmed in Booker, 
    125 S.Ct. 738
     (2005).
    However, subsequent to Booker, the Supreme Court held in
    Shepard v. United States, 
    125 S.Ct. 1254
    , 1262-63 (2005), that the
    Sixth Amendment is violated when a sentence increase is based on a
    disputed fact about a prior conviction that is not evident from the
    prior judicial record.      Specifically, the Supreme Court held in
    Shepard that “[w]hile the disputed fact here can be described as a
    fact about a prior conviction, it is too far removed from the
    conclusive significance of a prior judicial record . . . .”         
    Id. at 1262
    . Likewise, this court recently found in United States v.
    Washington, 
    404 F.3d 834
    , 842-43 (4th Cir. 2005), that a sentencing
    court’s   reliance   on   facts   outside   of   the   prior indictment to
    6
    While the government apparently interprets Cisneros-Garcia’s
    argument to be a challenge to § 4A1.1(e) and not (d), we find that
    the appellant has in fact presented a challenge to the application
    of § 4A1.1(d).
    13
    resolve a disputed fact about a prior conviction was error under
    Booker and Shepard.
    In   this   case,   the   district   court   relied   on   information
    presented in the PSR to apply two criminal history points pursuant
    to 4A1.1(d), which allows for those points to be added if the
    appellant was on probation at the time of the instant offense.
    However, it is not apparent from the judicial record that the
    appellant was on probation at the time of the instant offense,
    which according to the indictment occurred on May 9, 2003.              In
    fact, just the opposite is apparent as the PSR reflects that the
    appellant’s probation was revoked on February 21, 2002.
    Therefore, we find that the sentence was increased beyond the
    maximum permitted by the facts found by the jury or, as far as we
    can tell, admitted by the defendant.              Without the additional
    criminal history points under § 4A1.1(d) the appellant would have
    been in the lower criminal history category of V and the resulting
    guideline range of 92-115 months as opposed to 100-125 months. The
    district court’s application of § 4A1.1(d) in this case resulted in
    at least ten months of additional imprisonment for the appellant.
    Under these circumstances, “the sentence imposed by the district
    court as a result of the Sixth Amendment violation was longer than
    that to which he would otherwise be subject,” United States v.
    Hughes, 
    401 F.3d 540
    , 548 (4th Cir. 2005) (quoting United States v.
    Angle, 
    254 F.3d 514
    , 518 (4th Cir. 2001) (en banc)), and the
    14
    sentence contravened the appellant’s substantial rights.                      See
    Hughes, 
    401 F.3d at 548
    .
    V.
    We   are    of   the   opinion   that    the   district    court   properly
    considered      the   defendant’s     prior   deportation      and   affirm   the
    conviction.       However,    pursuant       to   the   foregoing,    we   vacate
    Cisneros-Garcia’s sentence and remand for resentencing.7
    AFFIRMED IN PART,
    VACATED IN PART, AND REMANDED
    7
    On remand, the district court should first determine the
    appropriate sentencing range under the guidelines, making all
    factual findings appropriate for that determination. Hughes, 
    401 F.3d at 546
    . The court should consider this sentencing range along
    with the other factors identified in 
    18 U.S.C.A. § 3553
    (a) (West
    2000 & Supp. 2005) and then impose a sentence. Hughes, 
    401 F.3d at 546
    . If that sentence falls outside the guideline range, the court
    should explain its reasons for the departure as required by 
    18 U.S.C.A. § 3553
    (c)(2) (West 2000 & Supp. 2005). Hughes, 
    401 F.3d at 546
    .   The sentence must be “within the statutory prescribed
    range and . . . reasonable.” 
    Id. at 547
    .
    15