United States v. Hector Ruiz-Solis ( 2022 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JAN 12 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 20-50265
Plaintiff-Appellee, D.C. No. 2:20-cr-00132-PA-1
v.
MEMORANDUM*
HECTOR RUIZ-SOLIS, AKA Chuckie,
AKA Hector Chucky, AKA Solis Hector
Ruiz, AKA Hector Perez, AKA Hector Ruis
Solis, AKA Chucky Ruiz, AKA Hector
Ruiz, AKA Hector S. Ruiz, AKA Chuckey
Solis, AKA Chuckie Solis, AKA Chucky
Solis, AKA Hector Solis,
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
Percy Anderson, District Judge, Presiding
Submitted January 10, 2022**
Pasadena, California
Before: RAWLINSON and CALLAHAN, Circuit Judges, and BLOCK,*** District
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Frederic Block, United States District Judge for the
Eastern District of New York, sitting by designation.
Judge.
Partial Dissent by Judge BLOCK.
Hector Ruiz-Solis appeals his conviction for being unlawfully present in the
United States following removal in violation of 8 U.S.C. § 1326(a), (b)(1), and
(b)(2), as well as the district court’s order forfeiting his bail in the amount of
$20,000 under Federal Rule of Criminal Procedure 46(f). We have jurisdiction
under 28 U.S.C. § 1291, and affirm.
1. Ruiz-Solis first argues the district court erred in denying his motion to
dismiss the indictment under 8 U.S.C. § 1326(d) because his due process rights
were violated in the underlying immigration proceedings which resulted in his
prior removal. We review the denial of the motion to dismiss de novo, and the
district court’s factual findings for clear error. United States v. Garcia-Gonzalez,
791 F.3d 1175, 1179 (9th Cir. 2015).
To collaterally attack the validity of a prior removal order in this context, the
noncitizen must demonstrate 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.” 8 U.S.C. § 1326(d). The Supreme Court recently clarified
that a defendant “must meet all three” of § 1326(d)’s requirements to collaterally
attack the prior removal order. United States v. Palomar-Santiago, 141 S. Ct.
21615, 1620–21 (2021).
Here, after consultation with his attorney, Ruiz-Solis affirmatively waived
his right to appeal the immigration judge’s determination that Ruiz-Solis was
ineligible for cancellation of removal. Thus, he failed to exhaust his administrative
remedies in his immigration proceedings and was not deprived of his ability to
seek judicial review. As a result, he cannot satisfy § 1326(d)(1) and (2).
Ruiz-Solis maintains that compliance with these provisions may be excused
where the defendant received ineffective assistance of counsel in the administrative
proceedings and as a result never had a genuine opportunity to present evidence, or
where the ineffective assistance of counsel affected the defendant’s awareness of
his ability to seek judicial review. Assuming, for the sake of argument, that
ineffective assistance of counsel can excuse compliance with § 1326(d)(1)–(2)
following Palomar-Santiago, neither circumstance Ruiz-Solis identifies is
presented here. Ruiz-Solis was not prevented from seeking relief under the
Convention Against Torture; to the contrary, he was fully aware that this remedy
was available as he had previously pursued it while he was representing himself in
prior immigration proceedings. Further, Ruiz-Solis’s waiver of his right to appeal
the adverse decision in his second proceeding came only after he was clearly
informed of his right to do so by the immigration judge and his attorney. Indeed,
Ruiz-Solis had appealed a prior adverse decision by an immigration judge to the
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BIA while he was representing himself, and thus clearly knew that he had the
ability to do so. The district court did not err in denying Ruiz-Solis’s motion to
dismiss the indictment on this basis.
2. Ruiz-Solis next argues the district court erred in ordering bond
forfeiture. As a threshold matter, the government argues that we lack jurisdiction
to review the district court’s forfeiture judgment because Ruiz-Solis did not file a
timely notice of appeal of this judgment. We agree.
A notice of appeal must “designate the judgment—or the appealable order—
from which the appeal is taken.” Fed. R. App. P. 3(c)(1)(B). Ruiz-Solis’s notice
of appeal stated that he was appealing the criminal judgment imposed on
September 28, 2020, and entered on the docket October 1, 2020. The government
notes that September 28th was the day his criminal sentence was pronounced, and
“nothing happened regarding the forfeiture that day.” Ruiz-Solis argues that the
notice’s reference to October 1st “plainly applied—and could only have applied—
to the bail forfeiture judgment as only the bail forfeiture judgment was entered on
October 1.” Ruiz-Solis is wrong—his criminal judgment was docketed on October
1, 2020, as well. Thus, the notice of appeal’s reference to a criminal judgment that
was imposed on September 28, 2020, and docketed on October 1, 2020, can only
refer to the criminal judgment imposing his sentence, not to his bail forfeiture
order. Because Ruiz-Solis failed to designate the forfeiture judgment in his notice
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of appeal, we lack jurisdiction to consider his argument that the district court
abused its discretion in ordering the forfeiture. See Tillman v. Ass’n of Apartment
Owners of Ewa Apartments, 234 F.3d 1087, 1089 (9th Cir. 2000) (noting that the
failure to file a timely notice of appeal is jurisdictional).
Even if we had jurisdiction, the defendant has not shown the district court
abused its discretion in refusing to set aside the otherwise mandatory forfeiture.
United States v. Abernathy, 757 F.2d 1012, 1015 (9th Cir. 1985). As the district
court found at Ruiz-Solis’s bail revocation hearing, Ruiz-Solis violated the
conditions of his release by, inter alia, failing to report to pretrial services and
remain at his sister’s residence, and being arrested for assault. The district judge
further found that Ruiz-Solis had “absconded from supervision” and shown “a
pattern . . . of disregard for the Court’s orders.” We thus respectfully disagree with
our dissenting colleague that the district judge made no attempt to determine what
happened after Ruiz-Solis’s release. Because the evidence in the existing record is
clear, the district court’s failure to reiterate these findings in its subsequent
forfeiture order did not constitute an abuse of discretion.
AFFIRMED.
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FILED
JAN 12 2022
BLOCK, Senior District Judge, dissenting in part:
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
I agree with my colleagues that Ruiz-Solis’s conviction and sentence should
be affirmed. I dissent, however, from the conclusion that the district court properly
considered the bond forfeiture issue.
I
As an initial matter, I am satisfied that we have jurisdiction to review the
forfeiture judgment. Ruiz-Solis’s form notice of appeal does not specifically
identify that judgment, but the error is not fatal. “We have permitted parties to
litigate an order not listed in the notice of appeal . . . where (1) the intent to appeal
that order can be ‘fairly inferred’ and (2) the appellee was not prejudiced by the
mistake.” Knievel v. ESPN, 393 F.3d 1068, 1071 n.2 (9th Cir. 2005) (quoting Lolli
v. County of Orange, 351 F.3d 410, 414 (9th Cir. 2003)). As in Knievel, Ruiz-Solis’s
intent can be inferred from his opening brief and the United States availed itself of
a full and fair opportunity to respond on the merits in its answering brief.
II
The majority concludes, in the alternative, that the district court did not abuse
its discretion in declining to set aside the bond forfeiture. I disagree and would
remand and require the district court to explain its reasoning.
A
A district court must declare a defendant’s bail forfeited if any
“condition of the bond is breached.” Fed. R. Crim. P. 46(f)(1). However, it may set
aside or remit a forfeiture “upon any condition the court may impose if . . . it appears
that justice does not require bail forfeiture.” Id. R. 46(f)(2, 4). There are six relevant
factors that should be considered:
1) the defendant’s willfulness in breaching a release condition; 2) the
sureties’ participation in apprehending the defendant; 3) the cost,
inconvenience, and prejudice suffered by the government; 4) mitigating
factors; 5) whether the surety is a professional or a member of the
family or a friend; and 6) the appropriateness of the amount of the bond.
United States v. Amwest Sur. Ins. Co., 54 F.3d 601, 603 (9th Cir. 1995); see also
United States v. Castaldo, 667 F.2d 20, 21 (9th Cir. 1981) (“A trial court should
consider several factors when deciding whether to remit or set aside a forfeiture…”
(emphasis added)); cf. United States v. Brooks, 872 F.3d 78, 92 (2d Cir. 2017)
(citing United States v. Gambino, 17 F.3d 572, 574 (2d Cir. 1994) (“The court must
consider several factors in evaluating the remission motion.” (emphasis added)).
Ruiz-Solis conceded that he had breached a condition of his pretrial release
warranting mandatory forfeiture but sought discretionary relief in his opposition to
the government’s forfeiture motion. Though initial findings were made at the bail
revocation hearing, significant factual questions remained. In his brief, Ruiz-Solis
presented several facts to support discretionary relief, such as potentially mitigating
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factors related to his mental health and the circumstances of his release. Those facts
were not reconciled with the government’s motion.
The district court’s forfeiture order states, in its entirety:
The Court has been informed that defendant Hector Ruiz Solis failed to
report to PSA upon his release on pretrial bond, and his whereabouts
are unknown in violation of conditions of his pretrial bail. Accordingly,
IT IS ORDERED pursuant to Rule 46(f) of the Federal Rules of
Criminal Procedure that bail is forfeited with respect to defendant
Hector Ruiz Solis.
The order’s reference to Ruiz-Solis’s whereabouts is erroneous, as he was in custody
when the order was entered. More importantly, it makes no mention of any grounds
for relief from the forfeiture. This was, in my opinion, an abuse of discretion.
B
An adequate record is a cornerstone of meaningful appellate review. This
requirement is particularly important for fact-based or discretionary decisions
because appellate courts “are not authorized to make findings of fact or weigh the
evidence.” United States v. Childs, 944 F.2d 491, 495 (9th Cir. 1991). Thus, for
example, a sentencing judge “must adequately explain the chosen sentence to allow
for meaningful appellate review and to promote the perception of fair sentencing.”
Gall v. United States, 552 U.S. 38, 50 (2007).
To be sure, consideration does not mean a rote recitation of factors and I, as a
district judge, appreciate the flexibility not to have to burden the record with a litany
of possible considerations, some of them irrelevant in a particular case. See United
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States v. Trujillo, 713 F.3d 1003, 1009 (9th Cir. 2013) (“[T]here is no mechanical
requirement that a sentencing court discuss every factor[.]”). Nevertheless,
something in the record must reflect that the district court gave due consideration to
a party’s sentencing arguments: “[W]hen a party raises a specific, nonfrivolous
argument tethered to a relevant § 3553(a) factor in support of a requested sentence,
then the judge should normally explain why he accepts or rejects the party’s
position.” United States v. Carty, 520 F.3d 984, 992-93 (9th Cir. 2008) (en banc). I
see no reason why the same rule should not apply to a request for relief from a bond
forfeiture; while perhaps not as severe as the loss of liberty that comes with most
sentences, the loss of $20,000 is still considerable to the average criminal defendant.
C
The district court’s forfeiture order does not reflect any consideration of Ruiz-
Solis’s request to set aside the forfeiture. There is nothing else in the record to satisfy
me that it considered the relevant factors.
Appellate courts occasionally excuse lack of consideration when the evidence
is clear, see, e.g., Ash v. Cvetkov, 739 F.2d 493, 496 (9th Cir. 1984) (reviewing
dismissal for lack of prosecution), but this is not such a case. The record is rife with
conflicting facts, mostly adduced at the bail revocation hearing. It is undisputed that
Ruiz-Solis is schizophrenic and functions poorly without his medication. It is
disputed, however, whether Ruiz-Solis was taking his medication while on bail;
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whether the mental-health program was scheduled to pick him up from jail; and, if
so, why it did not do so. Neither did the district court attempt to determine what
happened during the week Ruiz-Solis was out of jail—where he went and why; the
circumstances of his encounter with local police; and why the government sought a
warrant the first business day after his release. Indeed, the government apparently
cannot even decide if Ruiz-Solis checked in with pretrial services. Its motion for
forfeiture asserts that he did not, but it represented at the bail revocation hearing that
his sister “informed him that he was to check in with pretrial services, which he did
do.”
As the majority points out, some of those issues were explored at the bail
revocation hearing. I cannot agree, however, that the district court’s decision to
revoke Ruiz-Solis’s bail excuses its obligation to offer a reasoned decision for its
decision on the bond forfeiture motion. The issues may overlap to some extent, but
bail revocation and bond forfeiture obviously entail distinct considerations.
Otherwise, every bail revocation would automatically result in bond forfeiture with
no opportunity for the defendant to seek relief. That is plainly not the case.
In sum, the record convinces me that Ruiz-Solis had non-frivolous arguments
that the district court did not consider in the context of bond forfeiture. Therefore, I
would remand for further proceedings to resolve any relevant disputes of fact and
for a reasoned decision on Ruiz-Solis’s request.
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