United States v. Antonio Romero-Ochoa ( 2009 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 08-30251
Plaintiff-Appellee,
v.  D.C. No.
3:07-cr-00325-MO
ANTONIO ROMERO-OCHOA,
OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the District of Oregon
Michael W. Mosman, District Judge, Presiding
Argued and Submitted
January 22, 2009—Seattle, Washington
Filed February 5, 2009
Before: Robert R. Beezer, Richard C. Tallman and
Milan D. Smith, Jr., Circuit Judges.
Opinion by Judge Milan D. Smith, Jr.
1395
UNITED STATES v. ROMERO-OCHOA 1397
COUNSEL
Stephen R. Sady, Federal Public Defender, Portland, Oregon,
for the defendant-appellant.
1398 UNITED STATES v. ROMERO-OCHOA
Karin J. Immergut and Claire M. Fay, United States Attorney,
Portland, Oregon, for the plaintiff-appellee.
OPINION
MILAN D. SMITH, JR., Circuit Judge:
Defendant-Appellant Antonio Romero-Ochoa was indicted
by a grand jury for knowingly and unlawfully re-entering the
United States after having been previously arrested and
deported subsequent to being convicted of an aggravated fel-
ony. In a pretrial motion, Romero-Ochoa sought dismissal of
the indictment, claiming that the crime of which he was previ-
ously convicted was not an aggravated felony, and that, as a
result, his indictment incorrectly allowed for a sentencing
enhancement on the basis of his prior conviction. He asserted
he was entitled under due process to know whether he faced
the consequences of conviction following re-entry after an
aggravated felony conviction because the sentence would be
longer. He claims he cannot make an intelligent decision
whether to enter a guilty plea or proceed to trial without a pre-
trial ruling on this issue.
When the district court denied his motion, Romero-Ochoa
next requested that the district court revise the indictment by
striking reference to the aggravated nature of the felony. The
district court denied that relief as well, indicating that the
court would resolve the issue at sentencing. Romero-Ochoa
then filed this interlocutory appeal, arguing that the district
court’s failure to provide a pretrial judicial ruling on the dis-
puted term “aggravated felony” in his indictment constitutes
a violation of his Sixth Amendment due process right to
notice. We conclude that we do not have jurisdiction to hear
this appeal, and we dismiss it accordingly.
FACTUAL AND PROCEDURAL BACKGROUND
On August 21, 2007, a grand jury indicted Romero-Ochoa
for knowingly and unlawfully re-entering the United States
UNITED STATES v. ROMERO-OCHOA 1399
without express consent, after having previously been arrested
and deported from the United States subsequent to an aggra-
vated felony conviction, in violation of 8 U.S.C. § 1326(a)
and (b)(2). Romero-Ochoa had two antecedent convictions in
state court for Possession of a Schedule II Controlled Sub-
stance, Methamphetamine, which is a Class C felony pursuant
to Oregon law. OR. REV. STAT. § 475.840(3)(b). Romero-
Ochoa pleaded not-guilty to the federal government’s unlaw-
ful re-entry charge on February 11, 2008.
On May 23, 2008, Romero-Ochoa moved to dismiss his
indictment on the basis that it improperly alleged that he was
previously convicted of an aggravated felony, as defined
under 8 U.S.C. § 1101(a)(43)(B). Specifically, he argued that
his prior possession conviction did not constitute an aggra-
vated felony. The government filed a reply, and the district
court heard argument on the motion on June 17, 2008. The
district court rejected Romero-Ochoa’s claims that dismissal
or judicial rewriting of the indictment was warranted due to
incorrect notice of a sentencing enhancement within the
indictment. It then concluded that the issue of whether
Romero-Ochoa’s previous conviction constitutes an aggra-
vated felony should not be resolved until sentencing, if there
ultimately is a conviction in this case. Romero-Ochoa none-
theless filed this interlocutory appeal.
STANDARD OF REVIEW
We determine de novo whether this court may properly
exercise jurisdiction over an interlocutory appeal. Special
Invs., Inc. v. Aero Air Inc., 360 F.3d 989, 992 (9th Cir. 2004).
DISCUSSION
[1] Our jurisdiction is typically limited to final decisions of
the district court. 28 U.S.C. § 1291; Abney v. United States,
431 U.S. 651, 656 (1977). Romero-Ochoa concedes that the
district court has not made a final decision regarding the mer-
1400 UNITED STATES v. ROMERO-OCHOA
its of his claim. He argues, however, that we should exercise
jurisdiction over his interlocutory appeal, either because his
appeal meets the requirements of the collateral order doctrine,
or because he is entitled to a writ of mandamus under the All
Writs Act, 28 U.S.C. § 1651. As explained below, neither of
these arguments has merit.
A. Collateral Order Doctrine
[2] Romero-Ochoa first argues that the district court’s
denial of his motion gives us jurisdiction to decide his inter-
locutory appeal under the collateral order doctrine, first
announced in Cohen v. Beneficial Industrial Loan Corp., 337
U.S. 541 (1949). The Supreme Court held that as a “practical
construction” of § 1291’s final decision requirement, appel-
late courts should exercise jurisdiction over a small class of
decisions “too important to be denied review and too indepen-
dent of the cause itself to require that appellate consideration
be deferred until the whole case is adjudicated.” Cohen, 337
U.S. at 546; see also Digital Equip. Corp. v. Desktop Direct,
Inc., 511 U.S. 863, 867 (1994). In order to qualify as a mem-
ber of this small class, an order must “ ‘[1] conclusively deter-
mine the disputed question, [2] resolve an important issue
completely separate from the merits of the action, and [3] be
effectively unreviewable on appeal from a final judgment.’ ”
Will v. Hallock, 546 U.S. 345, 349 (2006) (quoting P.R. Aque-
duct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139,
144 (1993)); Coopers & Lybrand v. Livesay, 437 U.S. 463,
468 (1978). This three-pronged test is frequently referred to
as the Cohen test. See, e.g., Digital Equip., 511 U.S. at 869;
Englert v. MacDonell, Nos. 06-35465, 06-35531, 2009 WL
32559 (9th Cir. Jan. 7, 2009).
The Supreme Court has instructed that the Cohen test
should be strictly applied so as to prevent the collateral order
doctrine from “swallow[ing] the general rule . . . that a party
is entitled to a single appeal, to be deferred until final judg-
ment has been entered, in which claims of district court error
UNITED STATES v. ROMERO-OCHOA 1401
at any stage of the litigation may be ventilated.” Digital
Equip., 511 U.S. at 868 (internal citation omitted). We have
held that the decision to hear an order on appeal “should not
be made lightly[,] because the principle that appellate review
should be deferred pending the final judgment of the district
court is central to our system of jurisprudence.” United States
v. Amlani, 169 F.3d 1189, 1192 (9th Cir. 1999).
In applying the Cohen test, we also bear in mind “ ‘the
compelling interest in prompt trials’ ” and the inherent delay
of final resolution caused by interlocutory appeals. United
States v. Austin, 416 F.3d 1016, 1020 (9th Cir. 2005) (quoting
Flanagan v. United States, 465 U.S. 259, 265 (1984)). This
interest is particularly significant in criminal cases, where
“ ‘delay may prejudice the prosecution’s ability to prove its
case, increase the cost to society of maintaining those defen-
dants subject to pretrial detention, and prolong the period dur-
ing which defendants released on bail may commit other
crimes.’ ” Austin, 416 F.3d at 1020 (quoting United States v.
MacDonald, 435 U.S. 850, 862 (1978)).
“Because collateral jurisdiction requires all three elements
[to satisfy the Cohen test], we lack collateral order jurisdiction
if even one is not met.” McElmurry v. U.S. Bank Nat’l Ass’n,
495 F.3d 1136, 1140 (9th Cir. 2007). In this case, none of the
three Cohen prongs has been satisfied. Accordingly, we do
not have jurisdiction to hear the merits of Romero-Ochoa’s
claim that the district court’s failure to make a pretrial ruling
as to the applicability of a sentencing enhancement violated
his Sixth Amendment rights.
[3] Under the first prong of the Cohen test, the relevant dis-
trict court order must “conclusively determine the disputed
question.” Will, 546 U.S. at 349. Romero-Ochoa seeks to
characterize the disputed question in this case as whether a
district court judge is required to rule on a sentencing
enhancement before trial. He asserts that the district court, by
denying his motion to correct the indictment, answered the
1402 UNITED STATES v. ROMERO-OCHOA
relevant question. However, the “disputed question” we must
decide is the one Romero-Ochoa actually raised before the
district court, not the question he has conjured up for purposes
of this appeal. He asked the district court to strike the word
“aggravated” so he could not be punished more severely and
the jury could not make a determination on the question if he
was convicted of the illegal re-entry following an unspecific
generic felony.
[4] After the district court refused to dismiss the indict-
ment, Romero-Ochoa requested in oral argument that the
court strike by interlineation that portion of the indictment
alleging that he had been convicted of an aggravated felony.
The district court declined to conclusively determine whether
the indictment correctly included reference to an aggravated
felony, and instead reserved its ruling for post-trial sentencing
after any conviction. Because the district court did not “con-
clusively determine the disputed question” in a pretrial order,
the first Cohen prong is not satisfied, and we lack jurisdiction
under the collateral order doctrine.
[5] The second Cohen prong is also not satisfied. It requires
that the relevant district court order “resolve an important
issue completely separate from the merits of the action.” Will,
546 U.S. at 349. But, as the Supreme Court held in Abney, an
issue at the core of what must be resolved during trial is, by
its nature, not “collateral.” 431 U.S. at 663.1 In this case,
whether Romero-Ochoa’s prior conviction constitutes an
aggravated felony sufficient to warrant a sentencing enhance-
ment is a mixed question of law and fact closely linked to the
1
In Romero-Ochoa’s briefs and during oral argument, he has been care-
ful to narrowly define the issue he presents for review as “the district
court’s failure to rule on a motion to correct a defect in the indictment.”
This premise is necessary, because this court’s jurisdiction over an inter-
locutory appeal on the issue of the defect itself is precluded by Abney. 431
U.S. at 663 (ruling that a “challenge to the sufficiency of the indictment
does not come within the Cohen exception” because it fails both the sec-
ond and third prongs of the Cohen test).
UNITED STATES v. ROMERO-OCHOA 1403
merits of the underlying action, in which the prior convictions
themselves must be proven beyond a reasonable doubt as an
element of the offense. This court cannot determine if
Romero-Ochoa’s right to an accurate indictment has been vio-
lated until the underlying conviction is established on a suffi-
cient record. Cf. Flanagan, 465 U.S. at 268-69 (holding that
an order disqualifying counsel is not truly collateral because
it requires prejudice to the defense for its violation, which can
only be determined after trial); MacDonald, 435 U.S. at 860(noting that a claimed violation of the Speedy Trial Clause is
not sufficiently independent under the collateral order doc-
trine, because the claim would be satisfied by an acquittal).
The issue is not one separate from the merits; it is one to be
resolved as part of the merits during the course of the trial and
sentencing. If Romero-Ochoa is acquitted at trial, the issue of
the aggravated felony sentencing enhancement will become
moot. But cf. Abney, 431 U.S. at 659-60 (observing that the
very nature of a double jeopardy claim is collateral to the
underlying issue in the sense that the claim does not affect
and is not affected by the decision of the merits). Accord-
ingly, the second prong of the Cohen test is not met.
Finally, the third prong of the Cohen test requires that the
relevant order “be effectively unreviewable on appeal from a
final judgment.” Will, 546 U.S. at 349. In this case, the district
court has yet to rule on the issue. Even assuming, arguendo,
that Romero-Ochoa is ultimately convicted, the jury’s verdict
on a full trial record, or the record supporting a guilty plea,
followed by the district court’s ruling on the issue at sentenc-
ing, would be fully reviewable on appeal. If Romero-Ochoa
was denied sufficient notice under the Sixth Amendment as a
result of a flaw in the indictment, he would be free to raise
that issue on appeal. See Gautt v. Lewis, 489 F.3d 993, 1005-
09 (9th Cir. 2007) (finding that the government violated
defendant’s Sixth Amendment right to notice by including
one sentencing enhancement in the indictment, then pursuing
a different enhancement at jury instruction).
1404 UNITED STATES v. ROMERO-OCHOA
Romero-Ochoa argues that the district court’s failure to
resolve the sentence enhancement issue before trial denies
him notice in a way that is irreparable on appeal because he
must make decisions regarding plea agreements and trial strat-
egy without a judicial ruling on his potential maximum sen-
tence. He further argues that the district court’s pretrial order
“involve[s] an important right which would be lost, probably
irreparably, if review had to await final judgment.” Abney,
431 U.S. at 658 (internal quotation marks omitted). Although
we, like the district court, are sensitive to Romero-Ochoa’s
concerns and the difficulty inherent in making pretrial deci-
sions, the fact that Romero-Ochoa is left with a degree of risk
as to his final sentence — a risk inherent in virtually every
criminal prosecution at this stage of the case — does not give
him the right, under the collateral order doctrine, to interlocu-
torily appeal the district court’s refusal to rule.
As the Supreme Court held in Digital Equipment,
the strong bias of [28 U.S.C.] § 1291 against piece-
meal appeals almost never operates without some
cost. A fully litigated case can no more be untried
than the law’s proverbial bell can be unrung, and
almost every pretrial or trial order might be called
“effectively unreviewable” in the sense that relief
from error can never extend to rewriting history.
Thus, erroneous evidentiary rulings, grants or denials
of attorney disqualification, and restrictions on the
rights of intervening parties may burden litigants in
ways that are only imperfectly reparable by appellate
reversal of a final district court judgment.
511 U.S. at 872 (internal citations omitted). “[T]he mere iden-
tification of some interest that would be ‘irretrievably lost’
has never sufficed to meet the third Cohen requirement.” Id.[6] Romero-Ochoa’s interest in a pretrial judicial determi-
nation of the legal question challenging whether his prior con-
UNITED STATES v. ROMERO-OCHOA 1405
victions were “aggravated felonies” is insufficient to satisfy
the third Cohen prong. If Romero-Ochoa is convicted and
sentenced under the indictment, he will be free to appeal the
district court’s ruling on that issue. While it will then be too
late for Romero-Ochoa to revive plea negotiations with the
prosecution, his assertions regarding the applicability of the
sentencing enhancement can be easily reviewed on appeal and
the district court’s decision reversed, if appropriate.
[7] No Cohen prong is satisfied here. Therefore, we lack
jurisdiction to hear this appeal under the collateral order doc-
trine.
B. Writ of Mandamus
[8] As an alternative to our exercising jurisdiction under the
collateral order doctrine, Romero-Ochoa urges us to issue a
writ of mandamus directing the district court to resolve the
dispute over the sentencing enhancement in a pretrial order.
We have the jurisdictional power to “issue all writs necessary
or appropriate in aid of [our] jurisdictio[n] [which are] agree-
able to the usages and principles of law.” 28 U.S.C. § 1651.
Traditionally, exercise of this power has only been deemed
appropriate when used “ ‘to confine an inferior court to a law-
ful exercise of its prescribed jurisdiction or to compel it to
exercise its authority when it is its duty to do so.’ ” Will v.
United States, 389 U.S. 90, 95 (1967) (quoting Roche v.
Evaporated Milk Ass’n, 319 U.S. 21, 26 (1943)). The
Supreme Court has concluded that “only exceptional circum-
stances amounting to a judicial ‘usurpation of power’ will jus-
tify the invocation of this extraordinary remedy.” Id. (quoting
De Beers Consol. Mines, Ltd. v. United States, 325 U.S. 212,
217 (1945)); accord Cheney v. U.S. Dist. Ct., 542 U.S. 367,
380 (2004).
In reviewing a mandamus petition, we review the district
court’s orders for clear error. Cordoza v. Pac. States Steel
Corp., 320 F.3d 989, 998 (9th Cir. 2003). The petitioner must
1406 UNITED STATES v. ROMERO-OCHOA
show his right to the writ is “clear and indisputable.”
Valenzuela-Gonzalez v. U.S. Dist. Ct., 915 F.2d 1276, 1279
(9th Cir. 1990) (quoting Kerr v. U.S. Dist. Ct., 426 U.S. 394,
403 (1976)). We are guided by five principles in determining
whether to grant a mandamus petition. These principles are:
(1) The party seeking the writ has no other adequate
means, such as a direct appeal, to attain the relief he
or she desires. (2) The petitioner will be damaged or
prejudiced in a way not correctable on appeal. . . .
(3) The district court’s order is clearly erroneous as
a matter of law. (4) The district court’s order is an
oft-repeated error, or manifests a persistent disregard
of the federal rules. (5) The district court’s order
raises new and important problems, or issues of law
of first impression.
Bauman v. U.S. Dist. Court, 557 F.2d 650, 654-55 (9th Cir.
1977) (citations omitted). These principles are meant to
inform a court’s decision whether to grant a mandamus peti-
tion, but “are not meant to supplant reasoned and independent
analysis by appellate courts.” United States v. Harper, 729
F.2d 1216, 1222 (9th Cir. 1984) (internal quotation omitted).
[9] Romero-Ochoa has not met his burden to justify our
invocation of this “extraordinary remedy.” As discussed
supra, Romero-Ochoa’s claim does not satisfy the first, sec-
ond, and fifth prong of the referenced five principles. More-
over, he has not established that the district court’s failure to
rule on the subject issue before trial is “clearly erroneous as
a matter of law,” nor does the district court’s decision to delay
ruling “manifest[ ] a persistent disregard of the federal rules.”
Bauman, 557 F.2d at 654-55. On the contrary, the district
court’s decision not to rule on issues of sentencing until the
sentencing hearing is both logical and consistent with custom-
ary federal practice.
[10] The facts and circumstances of this case weigh heavily
against granting a writ, which is typically reserved for
UNITED STATES v. ROMERO-OCHOA 1407
extraordinary occasions of judicial “usurpation of power.”
Will, 389 U.S. at 95. The district court gave a thoughtful, rea-
soned analysis in its ruling denying Romero-Ochoa’s motion
to dismiss the indictment and the corresponding pretrial
request to alter the indictment. The district judge made it clear
that he had considered arguments presented by both sides, and
concluded, consistent with typical federal practice, that a judi-
cial determination regarding sentencing enhancement was
best resolved at sentencing, should there be one. To issue the
writ in these circumstances would flout Supreme Court rul-
ings limiting use of the writ to cases of judicial abrogation of
duty. Id. We see none here.
CONCLUSION
We lack jurisdiction to decide Romero-Ochoa’s appeal and
the circumstances are not sufficiently exceptional to warrant
a writ of mandamus.
DISMISSED.