United States v. Antonio Muniz-Bravo , 462 F. App'x 654 ( 2011 )

FILED
NOT FOR PUBLICATION NOV 30 2011
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 10-50441
Plaintiff - Appellee, D.C. No. 3:09-cr-03327-MMA-1
v.
MEMORANDUM*
ANTONIO MUNIZ-BRAVO,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
Michael M. Anello, District Judge, Presiding
Argued and Submitted November 7, 2011
Pasadena, California
Before: SCHROEDER and LEAVY, Circuit Judges, and GILLMOR,
District Judge.**
Antonio Muniz-Bravo appeals from his jury-trial conviction and 70-month
sentence for being a removed alien found in the United States in violation of 8
U.S.C. § 1326. We have jurisdiction under 28 U.S.C. § 1291. We review de novo
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Helen W. Gillmor, United States District Judge for the
District of Hawaii, sitting by designation.
the district court’s denial of a motion to dismiss an 8 U.S.C. § 1326 indictment
when the motion to dismiss is based on alleged due-process defects in the
underlying removal proceeding. United States v. Villavicencio-Burruel, 608 F.3d
556, 559 (9th Cir. 2010). We also review de novo alleged violations of the
Confrontation Clause, id. at 560, and the denial of a motion for acquittal, see
United States v. Tucker, 133 F.3d 1208, 1214 (9th Cir. 1998). We affirm.
The district court properly denied Muniz-Bravo’s motion to dismiss the
indictment because entry of the underlying 1993 removal order did not violate
Muniz-Bravo’s due process rights. During the 1993 removal proceedings the
immigration judge (“IJ”) ensured Muniz-Bravo knowingly and voluntarily waived
his rights to counsel and to appeal. Before the 1993 group hearing, the government
served Muniz-Bravo with an Order to Show Cause, which advised Muniz-Bravo in
Spanish and English of his rights to counsel and to appeal. At the hearing, the IJ
orally advised the group of their right to retain counsel:
You have a right to be represented at every stage of this proceeding by
a lawyer or by some other qualified person of your own choice.
Further, if you want a lawyer but don’t have money, I will postpone
your hearing to a later date so that you can obtain free legal
representation and then I’ll afford you an individual hearing with your
lawyer. If you believe that you have a legal right to be in the United
States or if you want to fight your deportation, it seems to me that’s in
your best interest to have a lawyer represent you. On the other hand,
the law does not require that you have a lawyer, and you may if you
wish represent yourself.
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The IJ then inquired of the group:
With this explanation in mind, if you want a lawyer to represent you,
either a free lawyer, or if you want to hire a lawyer, please stand and
then I’ll postpone your hearing.
The IJ indicated for the record that no one stood in response to his inquiry,
and also confirmed that each member of the group had been provided with a
written list of the free legal service programs and a written explanation of their
appeal rights.
The IJ then orally advised the group of their appeal rights:
In addition to your right to a lawyer, your have the right . . . to take an
appeal from any decision I make that you do not agree with.
The appeal right is very important, because if you are ordered
deported and you tell me you wish to appeal, your departure from the
United States would not be enforced until a higher court reviews the
record and makes its own decision.
The IJ next advised the group that he was going to call them up one at a
time:
When your name is called, please come up and sit in the chair . . . near
the microphone. When you come up here I shall ask you again if you
want a free lawyer. If you do, I will simply postpone your hearing
and then arrange for an individual hearing later with your lawyer
present. If you tell me you don’t want a free lawyer, then I shall ask
you if you understand the deportation charge that’s filed against you.
I shall ask you whether you admit that you are deportable, that is, you
plead guilty to the deportation charge, or you deny deportability and
plead innocent. Then I’ll quickly go over the items in your order with
you so that I can determine if there’s a valid basis for your plea. . . .
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I’ll tell you what my decision is, that is, whether you will or will not
be ordered deported. And finally, I’ll remind you that if you’re not
satisfied with the decision in your case, you have a right to take an
appeal to a higher court and have the higher court review the record.
The IJ called Muniz-Bravo for his individual questioning. The IJ asked
Muniz-Bravo twice whether he wanted a free lawyer to represent him, and Muniz-
Bravo twice declined. After signing Muniz-Bravo’s order of deportation, the IJ
asked Muniz-Bravo whether he wanted to appeal and have his case reviewed by a
higher court. Again, Muniz-Bravo declined. Under these circumstances, Muniz-
Bravo’s waiver of his rights to counsel and to appeal were both knowing and
voluntary. See Ram v. Mukasey, 529 F.3d 1238, 1242 (9th Cir. 2008); cf. United
States v. Arrieta, 224 F.3d 1076, 1079 (9th Cir. 2000).
Muniz-Bravo’s contention that his due process rights were violated when the
IJ failed to advise him of the availability of voluntary departure in 1993 fails
because Muniz-Bravo’s criminal history precluded any reasonable possibility that
he was eligible for voluntary departure. See 8 U.S.C. §§ 1101(f)(7) and 1254(e)
(1993).
Muniz-Bravo contends the evidence presented to the jury was insufficient to
establish beyond a reasonable doubt that he was physically removed from the
United States, in particular, because Agent Lopez testified he was only “80
percent” certain that he had removed Muniz-Bravo in 2009. The district court
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properly denied Muniz-Bravo’s motion for acquittal because there was sufficient
evidence on which a rational juror could have found that Muniz-Bravo had been
physically removed from the United States in 1996 and 2009. See United States v.
Zepeda-Martinez, 470 F.3d 909, 913 (9th Cir. 2006) (warrant bearing alien’s name,
signature, fingerprint, and immigration case number, as well as the name, title, and
signature of an immigration officer who witnessed the removal, sufficient alone to
support a finding of removal beyond a reasonable doubt).
Muniz-Bravo’s contention that his Sixth Amendment right to confrontation
was violated by the admission of a warrant of removal and other documents from
his Alien Registration File is foreclosed, see United States v. Orozco-Acosta, 607
F.3d 1156, 1164 (9th Cir. 2010), as is his contention that Almendarez-Torres v.
United States, 523 U.S. 224 (1998) has been effectively overruled by Nijhawan v.
Holder, 129 S. Ct. 2294 (2009), see United States v. Valdovinos-Mendez, 641 F.3d
1031, 1035-36 (9th Cir. 2011), cert. denied, No. 11-5415, 2011 WL 4536103(U.S. Oct. 3, 2011).
AFFIRMED.
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