United States v. Fuentes-Salgado , 207 F. App'x 391 ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
November 28, 2006
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
_______________________ Clerk
No. 04-20720
_______________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LEVER SANDER FUENTES-SALGADO,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:04-CR-20-1
Before JONES, Chief Judge, and DAVIS and GARZA, Circuit Judges.
PER CURIAM:*
Lever Sander Fuentes-Salgado was convicted after a
stipulated bench trial of illegal reentry after deportation in
violation of 8 U.S.C. § 1326 and was sentenced to sixty-three
months of imprisonment and three years of supervised release. He
appeals his conviction and sentence.
Fuentes-Salgado argues that the statute authorizing the
streamlined reinstatement procedures, 8 U.S.C. § 1231(a)(5) (INA
§ 241(a)(5)), which became effective on April 1, 1997, as part of
*
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opinion should not be published and is not precedent except under the limited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.
the Illegal Immigration Reform and Immigrant Responsibility Act of
1996 (IIRIRA), does not apply retroactively to him because he
reentered the United States before that date. The Supreme Court
held in Fernandez-Vargas v. Gonzales, 126 S. Ct. 2422, 2425 (2006),
that § 1231(a)(5) “applies to those who entered before IIRIRA and
does not retroactively affect any right of, or impose any burden
on” the alien.
Fuentes-Salgado argues that his 1998 reinstatement order
does not count as an order of removal as contemplated in the
illegal reentry statute. He concedes that this court has pre-
viously rejected this argument in United States v. Nava-Perez, 242
F.3d 277, 279 (5th Cir. 2001), holding that a second removal based
on the reinstatement of a prior removal order is a separate removal
from the original removal order and makes the alien subject to the
enhanced penalty of § 1326(b)(2). He raises the issue to preserve
it for further review by the Supreme Court.
Fuentes-Salgado argues that the procedures used to effect
his 1998 reinstatement order did not comport with due process. He
contends that the procedures employed pursuant to § 1231(a)(5) and
the implementing regulation, 8 C.F.R. § 241.8, were fundamentally
unfair and prejudiced him. He contends that his conviction should
be overturned and the indictment dismissed.
An alien who is prosecuted under § 1326 may, under
certain circumstances, challenge the deportation order that is used
as an element of the criminal offense. United States v. Mendoza-
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Lopez, 481 U.S. 828, 838-39 (1987); United States v. Benitez-
Villafuerte, 186 F.3d 651, 658 (5th Cir. 1999). To challenge the
validity of an underlying deportation order, an alien must
establish that: (1) the prior deportation hearing was fundamentally
unfair; (2) the hearing effectively eliminated the alien’s right to
seek judicial review of the removal order; and (3) the procedural
deficiencies caused actual prejudice. United States v. Lopez-
Vasquez, 227 F.3d 476, 483 (5th Cir. 2000). Additionally, an alien
may not challenge the validity of a deportation order unless he
exhausted available administrative remedies. See § 1326(d)(1);
see also Benitez-Villafuerte, 186 F.3d at 658 & n.8 (noting that
this court's interpretation of Mendoza-Lopez effectively was
codified in § 1326(d)). If the alien fails to establish one prong
of the test, the others need not be considered. See United States
v. Lopez-Ortiz, 313 F.3d 225, 231 (5th Cir. 2002). This court
reviews de novo the district court’s ruling on a collateral
challenge to a deportation proceeding when constitutional
challenges are raised. See Lopez-Vasquez, 227 F.3d at 481-82.
This court would have had jurisdiction to consider a
petition for review of Fuentes-Salgado’s 1998 reinstatement order.
See Ojeda-Terrazas v. Ashcroft, 290 F.3d 292, 295 (5th Cir. 2002)
(holding that reinstatement orders under § 241(a)(5) can be
reviewed). Fuentes-Salgado argues that “any meaningful possibility
of review was precluded” because the procedures under § 1231(a)(5)
did not give him an opportunity to place information into the
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administrative record or to introduce documents. He argues that
the restrictive rules governing the reinstatement procedure and its
limited review “deprived him of the opportunity for any effective
judicial review.”
Fuentes-Salgado does not state what evidence he would
have submitted to the immigration officer, other than that bearing
on his plea for asylum. The reinstatement statute provides a
restriction on removal to a country where the alien’s life or
freedom would be threatened. § 1231(b)(3). The regulation
governing the reinstatement procedures allows an alien to present
evidence on a claim of asylum. If the alien “expresses a fear of
returning to the country designated” in the reinstated removal
order, “the alien shall be immediately referred to an asylum
officer for an interview to determine whether the alien has a
reasonable fear of persecution or torture.” § 241.8(e). The
reinstatement procedures did not deprive Fuentes-Salgado of the
opportunity for judicial review.
Because Fuentes-Salgado has not demonstrated that the
reinstatement procedures effectively eliminated his right to seek
judicial review of the removal order, this court need not address
the other factors required to mount a collateral attack on the
deportation order. See Lopez-Ortiz, 313 F.3d at 231.
Fuentes-Salgado argues that the district court committed
reversible error when it sentenced him pursuant to the mandatory
sentencing guidelines system held unconstitutional in United States
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v. Booker, 543 U.S. 220, 244-45 (2005), which requires that his
sentence be vacated and remanded for resentencing. He contends
that this was not harmless error because the district court
indicated that it would sentence him to a lesser sentence of
twenty-four months if the Sentencing Guidelines were held unconsti-
tutional.
The Government concedes that although the Guidelines were
not held unconstitutional in their entirety, given the difference
between the guideline sentence of sixty-three months and the
alternative sentence of twenty-four months, it “cannot demonstrate
beyond a reasonable doubt that the district court’s incorrect view
of the Guidelines as mandatory was harmless.” Because of the
district court’s statements in connection with the imposition of
the alternative sentence, the Government has not shown harmless
error, and Fuentes-Salgado is entitled to have his sentence vacated
and this case remanded for resentencing in accordance with Booker.
See United States v. Walters, 418 F.3d 461, 464-66 (5th Cir. 2005);
United States v. Adair, 436 F.3d 520, 527-29 (5th Cir.), cert.
denied, 126 S. Ct. 2306 (2006) (vacating and remanding for
resentencing for district court to consider Booker when imposing
alternative sentence).
Fuentes-Salgado argues that the district court erred by
increasing his base offense level sixteen points under U.S.S.G.
§ 2L1.2(b)(1)(A)(ii) based on his conviction of a crime of
violence. This court held in Nava-Perez, 242 F.3d at 279, that a
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second removal based on the reinstatement of a prior removal order
is a separate removal from the original removal order and makes the
alien subject to the enhanced penalty of § 1326(b)(2). Further,
the enhanced penalty also applies if the alien “unlawfully remained
in the United States” after a conviction of a crime of violence.
§ 2L1.2(b)(1). Fuentes-Salgado does not argue that he did not
remain in the United States after his conviction for burglary of a
habitation in 1998, nor can he, because he was subsequently found
in the United States, leading to the present § 1326 conviction.
Fuentes-Salgado argues that the Government’s refusal to
move for and the district court’s denial of the third point for
acceptance of responsibility under § 3E1.1(b) was erroneous. The
district court did not err in not granting the third point because
the Government did not make the motion. § 3E1.1(b).
Fuentes-Salgado argues that the district court erred by
adding one point to his criminal history score under § 4A1.1(c)
based on his prior conviction for harboring a runaway child on
November 12, 1993. He contends that his § 1326 offense occurred on
December 8, 2003, and so his November 1993 conviction could not be
counted because it was imposed more than ten years prior to the
current offense, according to § 4A1.2(e).
This court has held that the offense of “being found” in
the United States illegally following deportation is a continuing
one which begins when a defendant reenters the United States
illegally and continues until the defendant is found in the United
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States. See United States v. Reves-Nava, 169 F.3d 278, 280 (5th
Cir. 1999); United States v. Santana-Castellano, 74 F.3d 593, 598
(5th Cir. 1996). Fuentes-Salgado admitted that he reentered in
1999. The district court did not err in counting Fuentes-Salgado’s
1993 conviction in his criminal history score.
Fuentes-Salgado argues that the district court erred by
adding two points to his criminal history score under § 4A1.1(e)
because he did not commit the instant offense less than two years
after release from imprisonment. For the same reason, based on
Reyes-Nava, 169 F.3d at 280, and Santana-Castellano, 74 F.3d at
598, the district court did not err in adding the two points to
Fuentes-Salgado’s criminal history score.
Fuentes-Salgado argues that the district court should
have granted a downward departure under § 5K2.12 due to his unusual
circumstances in fleeing El Salvador during the war to escape
persecution, and under § 5H1.6 due to his family obligations. This
court does not have jurisdiction to review this determination. See
United States v. Brace, 145 F.3d 247, 263 (5th Cir. 1998)(en banc).
For the foregoing reasons, the conviction is AFFIRMED;
Appellant’s sentence is REVERSED and the case REMANDED to allow the
district court either to resentence or, at its option, sentence
Appellant to twenty-four months imprisonment.
CONVICTION AFFIRMED; SENTENCE VACATED AND REMANDED WITH
INSTRUCTIONS.
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