United States v. Pedro Mendoza-Zaragoza ( 2009 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 08-30130
Plaintiff-Appellee, D.C. No.
v.  2:07-cr-06044-EFS-
PEDRO MENDOZA-ZARAGOZA, 1
Defendant-Appellant.
 OPINION
Appeal from the United States District Court
for the Eastern District of Washington
Edward F. Shea, District Judge, Presiding
Argued and Submitted
February 4, 2009—Seattle, Washington
Filed May 27, 2009
Before: Betty B. Fletcher, Pamela Ann Rymer and
Raymond C. Fisher, Circuit Judges.
Opinion by Judge Fisher
6217
UNITED STATES v. MENDOZA-ZARAGOZA 6219
COUNSEL
Rebecca L. Pennell, Assistant Federal Public Defender, Yak-
ima, Washington, for the defendant-appellant.
6220 UNITED STATES v. MENDOZA-ZARAGOZA
James A. McDevitt, United States Attorney and Alexander C.
Ekstrom (argued), Assistant United States Attorney, Yakima,
Washington, for the plaintiff-appellee.
OPINION
FISHER, Circuit Judge:
This appeal arises from an arguable ambiguity in our cases
applying Apprendi v. New Jersey, 530 U.S. 466 (2000), to
indictments and sentences under 8 U.S.C. § 1326. We now
eliminate that ambiguity, and clarify that an indictment charg-
ing the illegal reentry of a previously removed alien may sup-
port an increased maximum sentence under 8 U.S.C.
§ 1326(b)(2) — a sentence enhancement applicable to aliens
removed after an aggravated felony conviction — even if it
alleges the date of the prior removal without specifying the
relative date of the prior conviction. The date of an alien’s
removal is the only fact “[o]ther than the fact of a prior con-
viction . . . that increases the penalty for [the] crime beyond
the prescribed statutory maximum” of two years. Apprendi,
530 U.S. at 490. Therefore, with the removal date properly
established, the district court may determine whether the prior
felony conviction predated the defendant’s removal. Accord-
ingly, when the indictment alleges the removal date, a district
court does not abuse its discretion by requiring the defendant
to admit his removal date as the factual basis for a guilty plea
to the indictment, as the district court required here.
I.
Pedro Mendoza-Zaragoza was indicted under 8 U.S.C.
§ 1326 and charged with being an alien in the United States
after deportation. Under § 1326(a), a removed alien who
thereafter is found in the U.S. without the Attorney General’s
express consent is subject to a fine and a maximum term of
UNITED STATES v. MENDOZA-ZARAGOZA 6221
two years imprisonment. Section 1326(b), however, increases
the maximum sentence to 20 years if the alien’s removal “was
subsequent to a conviction for commission of an aggravated
felony.” 8 U.S.C. § 1326(b)(2). Subsection (b) “is a penalty
provision, which simply authorizes a court to increase the sen-
tence for a recidivist” but “does not define a separate crime.”
Almendarez-Torres v. United States, 523 U.S. 224, 226
(1998); see United States v. Pacheco-Zepeda, 234 F.3d 411,
413-14 (9th Cir. 2000). It is undisputed that Mendoza-
Zaragoza is such a recidivist, who was convicted of an aggra-
vated felony in 1988.
Mendoza-Zaragoza’s indictment alleged (1) his Mexican
citizenship; (2) that he had been removed from the United
States in January 2005 and July 1986; and (3) that he was
thereafter found in the country without the permission of the
Attorney General. The indictment did not, however, allege
any prior felony convictions or that either of his removals fol-
lowed a felony conviction. Mendoza-Zaragoza contends that
a guilty plea to an indictment that alleges only a date of
removal — as opposed to a sequence of felony conviction fol-
lowed by removal — cannot support the 20-year maximum
sentence under § 1326(b) without violating the rule of
Apprendi.
Although he had no plea agreement, Mendoza-Zaragoza
attempted to plead guilty to the charges as set forth in the
indictment. During the plea colloquy required by Fed. R.
Crim. P. 11(b), Mendoza-Zaragoza objected when the district
court recited the maximum sentence allowed under § 1326 as
20 years, arguing that the indictment charged him only with
a violation of § 1326(a) because the government failed to
allege a temporal relationship between his felony conviction
and removal. He further objected when the district court
recited his removal dates on the record, contending the dates
would be relevant only to whether he violated § 1326(b).
Because the government had alleged facts sufficient to charge
only a violation of § 1326(a), he argued, the district court
6222 UNITED STATES v. MENDOZA-ZARAGOZA
could not require him to admit any facts that would subject
him to § 1326(b)’s sentence enhancement.
The district court considered whether an indictment must
allege a sequence — i.e., that removal happened after the
sentence-enhancing felony conviction — to invoke the 20-
year maximum, or whether, as the government argued, an
indictment need only allege a removal date. The court over-
ruled Mendoza-Zaragoza’s objection, finding our decision in
United States v. Salazar-Lopez, 506 F.3d 748, 752 (9th Cir.
2007), dispositive. With the date of removal established by
the plea, the district court reasoned, a qualifying felony con-
viction and its date could be supplied at sentencing to justify
the sentence enhancement. Nonetheless, when the court asked
Mendoza-Zaragoza to admit the factual basis of his plea —
including his removal dates — he again objected, so the court
refused to accept his plea. Thereafter, Mendoza-Zaragoza
agreed to a conditional guilty plea, under which he pled guilty
to “illegal reentry in violation of 8 U.S.C. § 1326(b),” admit-
ted his removal dates and reserved in writing the right to “ap-
peal the district court’s failure to take a guilty plea . . . to the
crime charged in the indictment.” The district court imposed
a 72-month sentence, which Mendoza-Zaragoza challenges
only insofar as it resulted from the district court’s rejection of
his guilty plea under § 1326(a). We review that rejection for
abuse of discretion. See In re Vasquez-Ramirez, 443 F.3d 692,
700 (9th Cir. 2006) (citing United States v. Maddox, 48 F.3d
555, 556, 560 (D.C. Cir. 1995)). We have jurisdiction under
28 U.S.C. § 1291, and we affirm the sentence imposed.
II.
A.
[1] Under the familiar rule of Apprendi, “[o]ther than the
fact of a prior conviction, any fact that increases the penalty
for a crime beyond the prescribed statutory maximum must be
submitted to a jury, and proved beyond a reasonable doubt.”
UNITED STATES v. MENDOZA-ZARAGOZA 6223
Apprendi, 530 U.S. at 490. The government must charge these
facts in the indictment as well. See, e.g., Salazar-Lopez, 506
F.3d at 751-52. Applying this rule to the increased maximum
in § 1326(b), we have held sentences constitutionally defec-
tive when the date of a defendant’s removal was neither
admitted by the defendant nor proved to a jury. See United
States v. Covian-Sandoval, 462 F.3d 1090, 1097-98 (9th Cir.
2006). Extending the rule of Covian-Sandoval to the suffi-
ciency of an indictment, we held in Salazar-Lopez that an
enhanced sentence was defective because “the Government
never alleged in the indictment that [the defendant] had been
removed on a specific, post-conviction date.” Salazar-Lopez,
506 F.3d at 751. The removal date is “necessary to determine
whether the removal had followed the conviction in time.” Id.(emphasis in original). As the district court here recognized,
we held that Apprendi required “the date of removal, or at
least the fact that Salazar-Lopez had been removed after his
conviction” to appear in the indictment. Id. at 752 (emphasis
in original). We further clarified this rule in United States v.
Calderon-Segura, 512 F.3d 1104, 1111 (9th Cir. 2008),
explaining that “[u]nder Salazar-Lopez, in order for a defen-
dant to be eligible for an enhanced statutory maximum under
§ 1326(b), the indictment must allege, in addition to the facts
of prior removal and subsequent reentry, either the date of the
prior removal or that it occurred after a qualifying prior con-
viction.” Id. (emphasis in original). These cases stated the rule
in the disjunctive, requiring either the removal date or that it
occurred after a qualifying felony conviction, which necessar-
ily means an alleged removal date is alone sufficient to sup-
port a § 1326(b) sentence enhancement. See id.
[2] A possible ambiguity remains, however, at least enough
to produce this appeal. In Salazar-Lopez and Calderon-
Segura, the government alleged neither a date of removal nor
a sequence of felony conviction followed by removal.
Mendoza-Zaragoza’s case is apparently the first to pose
whether an allegation of removal dates without explicitly
alleging the sequence satisfies Apprendi. We make explicit
6224 UNITED STATES v. MENDOZA-ZARAGOZA
what these cases clearly implied, and hold that an indictment
will support the § 1326(b) sentence enhancement if it alleges
a removal date, thus enabling a sentencing court to compare
that date to the dates of any qualifying felony convictions to
determine whether the sentence-enhancing sequence is satis-
fied.
B.
Mendoza-Zaragoza argues that he was entitled to enter a
“naked” guilty plea to the crime charged in the indictment.
See Vasquez-Ramirez, 443 F.3d at 695-96, 700 (granting man-
damus petition because district court refused to accept a guilty
plea to § 1325 that met the requirements of Rule 11(b)). He
reasons that if the indictment failed to allege the sentence-
enhancing facts, he could plead guilty to a bare violation of
§ 1326(a) by “admitt[ing] that he is an alien, confirm[ing] that
he had been previously deported, acknowledg[ing] that he
reentered the United States, and conced[ing] that he did so
without permission of the Attorney General.” United States v.
Corona-Garcia, 210 F.3d 973, 980 (9th Cir. 2000) (holding
that “[n]o more is required” for a § 1326 conviction). Further,
Mendoza-Zaragoza’s proffered guilty plea would have admit-
ted only the facts necessary for a bare conviction, even if
other sentence-enhancing facts appeared in the indictment.
See United States v. Thomas, 355 F.3d 1191, 1198 (9th Cir.
2004) (holding that a naked guilty plea to possession of
cocaine base does not necessarily admit drug quantity alleged
in the indictment as sentence-enhancing facts). Mendoza-
Zaragoza would therefore have avoided admitting any
sentence-enhancing facts, entitling him to a two-year maxi-
mum sentence.
Mendoza-Zaragoza’s reasoning, however, rests upon his
foundational contention that his indictment failed to allege
necessary sentence-enhancing facts under § 1326(b). We
reject that contention.
UNITED STATES v. MENDOZA-ZARAGOZA 6225
[3] In support of his position, Mendoza-Zaragoza argues
that Salazar-Lopez requires § 1326 indictments to contain a
temporal relationship between felony conviction and removal.
If Salazar-Lopez required the government to allege a
sequence of conviction date and removal date, Mendoza-
Zaragoza’s indictment would be defective for failure to allege
a conviction date and we could then address his argument that
he was entitled to plead guilty to § 1326 without admitting
any sentence-enhancing facts. As discussed, however, we
have not read the rule of Salazar-Lopez as Mendoza-Zaragoza
urges. See Calderon-Segura, 512 F.3d at 1111. Although
Mendoza-Zaragoza correctly identifies the ultimate sentence-
enhancing fact as the sequence of conviction and removal, his
argument fails to recognize that with the removal date estab-
lished by the plea, a sentencing court can “determine whether
the removal had followed the conviction in time.” Salazar-
Lopez, 506 F.3d at 751 (emphasis in original).
Perhaps more compellingly, Mendoza-Zaragoza cites
Garcia-Aguilar v. U.S. Dist. Ct. for S. Dist. of Cal., 535 F.3d
1021 (9th Cir. 2008), decided after the district court ruled
here. In Garcia-Aguilar, defendants entered unconditional
guilty pleas to indictments that “failed to allege . . . that they
were previously removed from the country after being con-
victed of a felony.” Id. at 1024. The government caught its
mistake and convinced the district court to undo the guilty
pleas so it could prosecute superseding indictments that prop-
erly alleged a sentence enhancement under § 1326(b). See id.
at 1024-25. The defendants successfully petitioned for a writ
of mandamus to enforce their original guilty pleas to
§ 1326(a). In discussing the government’s original indictment
errors, we explained that “[i]t should have been obvious to the
U.S. Attorney that the sequence of a defendant’s previous
conviction and removal is a fact separate from the prior con-
viction itself, and must therefore be charged in the indictment
and either proven at trial or admitted.” Id. at 1024 (emphasis
in original).
6226 UNITED STATES v. MENDOZA-ZARAGOZA
Building on Garcia-Aguilar, Mendoza-Zaragoza argues
that if an indictment fails to allege a sequence of conviction
and removal, a defendant has a right to enter a guilty plea
under 8 U.S.C. § 1326(a) and be sentenced under that subsec-
tion’s two-year maximum. See also Vasquez-Ramirez, 443
F.3d at 695-96 (“[A] court must accept an unconditional
guilty plea, so long as the Rule 11(b) requirements are met.”)
(emphasis added). We do not read Garcia-Aguilar as support-
ing so broad a proposition.
[4] First, strictly speaking, we did not review the Garcia-
Aguilar defendants’ original indictments because the indict-
ments themselves were not appealed. We decided only
whether mandamus relief was warranted by a district court’s
failure to accept an unconditional guilty plea to an otherwise
valid indictment under § 1326(a). Second, although we did
not specifically discuss whether, as here, the faulty indict-
ments alleged removal dates but not a sequence of conviction
followed by removal, we did explain that the Garcia-Aguilar
defendants’ original indictments “did not charge any conduct
that could increase the maximum penalty above two years.”
535 F.3d at 1024 (emphasis added). Under Salazar-Lopez and
Calderon-Segura, defendants’ prior removal would be con-
duct that could increase the maximum penalty. See Calderon-
Segura, 512 F.3d at 1111. Therefore, we did not squarely hold
in Garcia-Aguilar that an indictment alleging only removal
dates would violate Apprendi, because no such indictment
was before us.1 Nor did we squarely hold that a failure to
allege the sequence of conviction followed by removal enti-
tles a defendant to plead guilty to § 1326(a). The best reading
1
In its petition for panel rehearing in Garcia-Aguilar, the government
conceded that none of the Garcia-Aguilar defendants’ original indictments
alleged even a removal date, let alone a sequence. Appellee’s Pet. for
Reh’g at 2, Garcia-Aguilar, 535 F.3d 1021 (9th Cir. 2008) (Nos. 07-
70293, 07-71177, 07-71408). Thus, even if we had squarely reviewed the
adequacy of the indictments in Garcia-Aguilar, that case would not con-
trol because Mendoza-Zaragoza’s indictment did allege prior removal
dates.
UNITED STATES v. MENDOZA-ZARAGOZA 6227
of Garcia-Aguilar is that we left the rule from Salazar-Lopez
exactly where we found it: an indictment will support a 20-
year maximum sentence under § 1326(b) if it alleges a
removal date, thus enabling a sentencing court to determine
whether the conviction predated the defendant’s removal to
establish the necessary sequence.
[5] This rule follows smoothly from our holding in United
States v. Lopez, 500 F.3d 840, 848 (9th Cir. 2007), cert.
denied, 128 S. Ct. 950. There, the defendant admitted both the
dates of his conviction and of his removal. We held the sen-
tencing court did not violate Apprendi by sentencing the
defendant under § 1326(b) because “the district court applied
the established temporal sequence to enhance Lopez’s sen-
tence.” Id. In other words, a guilty plea to the indictment can
establish the removal date, and the only other fact needed to
enhance the sentence is the date of the felony conviction,
which is an express exception to the Apprendi rule. See
United States v. Grisel, 488 F.3d 844, 847 (9th Cir. 2007) (en
banc) (holding the date of a prior conviction is part of the
“fact” of a prior conviction for Apprendi purposes because the
date can be found on the document demonstrating the prior
conviction). A sentencing court is plainly capable of compar-
ing the dates to determine whether a defendant’s removal was
“subsequent to a conviction for commission of an aggravated
felony.” 8 U.S.C. § 1326(b)(2).
[6] Finally, we reject Mendoza-Zaragoza’s assertion at oral
argument that fairness requires the government to allege a
sequence of conviction and removal so defendants know they
are facing a much steeper sentence. As the facts of this case
illustrate, the Rule 11 plea colloquy already puts a defendant
on notice of the maximum sentence he or she will face. See
Fed. R. Crim. P. 11(b)(1)(H) (requiring district court to
inform defendant of any maximum possible penalty). More-
over, even if alleging a prior conviction would provide defen-
dants with notice they otherwise might not have, we are not
convinced that alleging a prior conviction is uniformly in
6228 UNITED STATES v. MENDOZA-ZARAGOZA
defendants’ best interests. See Almendarez-Torres, 523 U.S.
at 235 (“As this Court has long recognized, the introduction
of evidence of a defendant’s prior crimes risks significant
prejudice.”).
[7] Given the fact of Mendoza-Zaragoza’s prior conviction,
his indictment alleged facts (his removal dates) sufficient to
support the sentence enhancement under § 1326(b). See Cal-
deron Segura, 512 F.3d at 1111; Salazar-Lopez, 506 F.3d at
752. The district court was therefore within its discretion to
require Mendoza-Zaragoza to admit his removal dates as part
of the factual basis supporting his guilty plea to the indict-
ment. Cf. Vasquez-Ramirez, 443 F.3d at 700.
AFFIRMED.