United States v. Gonzalez-Meza ( 2001 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-50069
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE CARMELO GONZALEZ-MEZA,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Texas
USDC No. W-00-CR-350-ALL
November 7, 2001
Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Jose Carmelo Gonzalez-Meza was convicted by a jury of
reentering the United States illegally after deportation in
violation of 8 U.S.C. §§ 1326(a)(1) & 1326(b)(1)(2). He appeals
his conviction and sentence on multiple grounds.
Gonzalez-Meza first argues that his Mirandized statements
should have been suppressed as tainted by his suppressed un-
Mirandized statements. "Mirandized statements made subsequent to
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
an un-Mirandized statement are not the illegal fruit of the prior
statement unless the prior statement was actually involuntary as
opposed to merely presumed involuntary on the basis that it was
given without the benefit of Miranda warnings."1 Here, the record
does not provide any indication that Gonzalez-Meza's un-Mirandized
statements were involuntary or the product of coercion.2 As such,
there is no need to engage in an attenuation analysis pursuant to
Brown v. Illinois,3 and we conclude the district court did not err
in refusing to suppress the Mirandized statements.4
We also find that there was sufficient evidence to sustain the
conviction for illegal reentry, with or without the Mirandized
statements. "Pursuant to the text of § 1326, the government is
required to allege [and prove] only (1) that the defendant was an
alien, (2) that he was 'deported' as that term is contemplated by
the statute, (3) that he subsequently was found within the United
States; and (4) that he did not have the consent of the Attorney
General to reapply for admission."5 In particular, sufficient
1
United States v. Garcia Abrego, 141 F.3d 142, 169 (5th Cir.
1998).
2
See id.3
422 U.S. 590 (1975).
4
See Or. v. Elstad, 470 U.S. 298, 310-11 (1985); United
States v. Barte, 868 F.2d 773, 774 (5th Cir. 1989); United States
v. Basey, 816 F.2d 980, 994 (5th Cir. 1987).
5
United States v. Guzman-Ocampo, 236 F.3d 233, 237 n.4 (5th
Cir. 2000), cert. denied, 121 S. Ct. 2600 (2001).
2
documentary evidence established that Gonzalez-Meza had previously
been deported and that he did not have the consent of the Attorney
General to reenter the United States.6 Moreover, Gonzalez-Meza's
properly-admitted, sworn statement provides ample evidence that he
had been previously deported.
The district court did not abuse its discretion by denying
Gonzalez-Meza discovery of the audio recording of his prior
deportation hearing because the recording would not have permitted
Gonzalez-Meza to successfully collaterally attack his prior
deportation order on the basis that his Texas state felony drug
conviction was not an "aggravated felony."7 Our precedent
forecloses any argument that his conviction was not such a felony,
and so he cannot establish that any alleged procedural deficiencies
in his earlier hearing caused him actual prejudice.8 Gonzalez-Meza
was also ineligible for discretionary relief under 8 U.S.C. §
1182(h) because of the quantity of drugs for which he was convicted
in Texas state court.9
6
Cf. United States v. Quezeda, 754 F.2d 1190, 1193-95 (5th
Cir. 1985).
7
See United States v. Hernandez-Avalos, 251 F.3d 505, 507
(5th Cir.), cert. denied, No. 01-5773, 2001 WL 992061 (U.S. Oct. 1,
2001).
8
See id. at 507-08; United States v. Hinojosa-Lopez, 130
F.3d 691, 694 (5th Cir. 1997).
9
See 8 U.S.C. § 1182(h).
3
The district court also did not abuse its discretion in
refusing to exclude testimony that a fingerprint card indicating
that Gonzalez-Meza had a criminal history was found in his INS
Alien File. Even assuming without deciding that the district court
erred in overruling Gonzalez-Meza's Federal Rule of Evidence 404(b)
objection to this evidence, such error would be harmless because
the implication that Gonzalez-Meza had a criminal history did not
have a substantial and injurious effect or influence on the jury's
verdict in light of the other substantial evidence of Gonzalez-
Meza's guilt.10
We also reject Gonzalez-Meza's argument that the district
court’s decision to admit into evidence his statement that he
illegally reentered the United States in 1998 violated Rule 404(b).
Contrary to Gonzalez-Meza's understanding of section 1326, we have
held that "Section 1326 sets forth a continuing offense," which
"begins at the time the defendant illegally re-enters the country
and does not become complete unless or until the defendant is found
by the INS in the United States."11 Moreover, section 1326 is a
general intent offense, requiring that the government prove that
10
See United States v. Polasek, 162 F.3d 878, 886 (5th Cir.
1998); cf. United States v. Torres-Flores, 827 F.2d 1031, 1038 (5th
Cir. 1987) (citing cases where the admission of a "mug shot" which
tended to allude to a criminal record or bad character was harmless
in light of other strong evidence against the defendant).
11
United States v. Corro-Balbuena, 187 F.3d 483, 485 (5th
Cir. 1999); see also United States v. Reyes-Nava, 169 F.3d 278, 280
(5th Cir. 1999).
4
the defendant voluntarily reentered the United States.12 Under
these circumstances, evidence of Gonzalez-Meza's reentry in 1998
"constituted intrinsic background information and therefore Rule
404(b)'s limits on admissibility of extrinsic acts did not apply."13
For the foregoing reasons, Gonzalez-Meza's conviction is AFFIRMED.
Gonzalez-Meza's arguments that our decision in Ruiz-Romero v.
Reno14 implicitly overruled the holding in United States v.
Hinojosa-Lopez15 and that our interpretation of "aggravated felony"
for sentencing purposes violates a fundamental rule of statutory
construction and the rule of lenity are meritless.16 Gonzalez-Meza
12
United States v. Berrios-Centeno, 250 F.3d 294, 298-99 (5th
Cir.), cert. denied, No. 01-5535, 2001 WL 914944 (U.S. Oct. 1,
2001).
13
United States v. Miranda, 248 F.3d 434, 440 (5th Cir.),
cert. denied, No. 01-6235, 2001 WL 10953457 (U.S. Oct. 15, 2001);
see also United States v. Williams, 900 F.2d 823, 825 (5th Cir.
1990). Of course, the necessary voluntary act to meet the general
intent requirement could also "be inferred by the fact that a
defendant was previously deported . . . and subsequently found in
the United States, without consent." Berrios-Centeno, 250 F.3d at
299 (internal quotation marks omitted).
14
205 F.3d 837 (5th Cir. 2000).
15
130 F.3d 691 (5th Cir. 1997).
16
See United States v. Rivera, 265 F.3d 310 (5th Cir. 2001)
(per curiam) (rejecting a statutory construction and rule of lenity
challenge to Hinojosa-Lopez); Hernandez-Avalos, 251 F.3d at 507-08(reaffirming Hinojosa-Lopez and rejecting the argument that the
interpretation of "aggravated felony" employed by the Board of
Immigration Appeals is binding on us for sentencing or immigration
purposes); Narvaiz v. Johnson, 134 F.3d 688, 694 (5th Cir. 1998)
(holding that panel decisions cannot overrule prior panel
decisions).
5
now concedes this point to the government but seeks to be
resentenced pursuant to an amendment to U.S.S.G. § 2L1.2, effective
November 1, 2001. This amendment is not listed in U.S.S.G. §
1B1.10(c), however, and so affords Gonzalez-Meza no right to seek
relief from the district court under 18 U.S.C. § 3583(c)(2).17
The district court also did not abuse its discretion by
ordering that Gonzalez-Meza's sentence run consecutive to his state
court sentence for driving while intoxicated. Because, as noted
above, Gonzalez-Meza's section 1326 violation was a continuing
offense begun when he reentered the United States in 1998, and
because a section 1326 violation is not a mere status offense,
U.S.S.G. § 5G1.3(a) authorizes a consecutive sentence in this
case.18
Finally, relying on our recent decision in United States v.
Rodriguez-Montelongo,19 Gonzalez-Meza raises for the first time in
his reply brief the argument that the district court erred in
refusing to grant a downward departure based on cultural
assimilation. Ordinarily, we will not consider an argument raised
17
See U.S.S.G. § 1B1.10(c); United States v. Posada-Rios, 158
F.3d 832, 880 (5th Cir. 1998).
18
See U.S.S.G. § 5G1.3(a); United States v. Tovias-Marroquin,
218 F.3d 455, 456-57 (5th Cir.), cert. denied, 531 U.S. 1058(2000); Corro-Balbuena, 187 F.3d at 485.
19
263 F.3d 429 (5th Cir. 2001).
6
for the first time in a reply brief.20 This argument, however, is
without merit at all events. The district court here did not
simply believe that it did not have authority to grant such a
downward departure, but rather indicated that it would not exercise
its discretion to grant such a departure if it did have the
authority to do so. Under these circumstances, we cannot review
the district court's refusal to grant a downward departure and so
we dismiss the appeal as to this issue.21 Accordingly, Gonzalez-
Meza's sentence is AFFIRMED.
20
Price v. Roark, 256 F.3d 364, 368 n.2 (5th Cir. 2001).
21
See United States v. Martinez, 263 F.3d 436, 440 (5th Cir.
2001).
7