United States v. Francisco Perez-Arellano

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 18-4301
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
FRANCISCO PEREZ-ARELLANO, a/k/a Francisco Ugarte,
Defendant – Appellant.
Appeal from the United States District Court for the Middle District of North Carolina, at
Greensboro. William L. Osteen, Jr., District Judge. (1:17-cr-00357-WO)
Submitted: November 9, 2018 Decided: December 17, 2018
Before WILKINSON and RICHARDSON, Circuit Judges, and SHEDD, Senior Circuit
Judge.
Affirmed by unpublished per curiam opinion.
Aaron B. Wellman, COALTER LAW P.L.L.C., Greensboro, North Carolina, for
Appellant. Matthew G.T. Martin, United States Attorney, Lisa B. Boggs, Assistant
United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Greensboro,
North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Francisco Perez-Arellano, a Mexican native and citizen, pled guilty to illegally
reentering the country after previously being removed. See 8 U.S.C. § 1326(a). Varying
upward from the advisory sentencing range of 30-37 months, the district court sentenced
Perez-Arellano to a 48-month imprisonment term. Perez-Arellano now appeals his
conviction and sentence. We affirm. 1
In 2002, United States Customs Inspectors in Texas detained Perez-Arellano as he
attempted to smuggle 1.2 kilos of cocaine into the country. Perez-Arellano subsequently
was convicted for importing cocaine and sentenced to 33 months.
In August 2004, during his incarceration, Perez-Arellano was served with an INS
Form I-862 “Notice to Appear” (“NTA”) noting his cocaine conviction as the basis for
his removal and listing a hearing date “to be set.” See J.A. 55. Perez-Arellano signed the
form on August 6, 2004, acknowledging its receipt, requesting a prompt hearing, and
waiving his right to have a 10-day period before appearing before an immigration judge.
That same day, Perez-Arellano also signed a “Stipulated Request for Removal
Order and Waiver of Hearing.” See J.A. 57. By signing this document, Perez-Arellano
requested that his deportation proceedings “be conducted completely on a written record,
without a hearing”; admitted the allegations in the NTA and conceded that he was
1
Perez-Arellano’s counsel appealed the sentence pursuant to Anders v. California,
386 U.S. 738 (1967), conceding that the sentence is procedurally and substantively
reasonable. In accordance with Anders, we have reviewed the sentencing record and find
no meritorious issues for appeal. We will therefore affirm the sentence and limit the
remainder of our discussion to Perez-Arellano’s appeal of his conviction.
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deportable as charged; agreed that he was ineligible for, or otherwise waived his right to
apply for, any type of relief from deportation; agreed to accept a written order for his
removal as a final disposition of the removal proceedings and waived his right to appeal
that order; and waived his right to notice of, and right to be present at, a hearing in the
event one was scheduled. J.A. 57-58. Perez-Arellano also acknowledged that he fully
understood the consequences of the Stipulation and was submitting it “voluntarily,
knowingly and intelligently.” J.A. 58. Several days later, an immigration judge ordered
Perez-Arellano’s removal to Mexico.
In March 2013, ICE agents encountered Perez-Arellano in Cherokee County,
South Carolina, after local law enforcement officers had discovered almost $200,000 in
his vehicle during a traffic stop. Perez-Arellano was administratively arrested for
unlawful presence in the country under the name of F. Junior Arellano-Guzman. In
August 2013, Perez-Arellano was convicted in the District of South Carolina for illegal
reentry by an aggravated felon and was sentenced under the name of Francisco Perez-
Arellano to 41 months. In February 2016, Perez-Arellano was removed from the United
States to Mexico.
In August 2017, Perez-Arellano was arrested under the name Francisco Ugarte by
local authorities in Montgomery County, North Carolina, for a variety of controlled
substance offenses. Based on an investigation, which included a fingerprint analysis,
Perez-Arellano’s identity was established, and he was charged with the illegal reentry
crime now on appeal. As noted, Perez-Arellano pled guilty to this crime.
3
Perez-Arellano’s sole argument concerning his conviction is that the district court
committed plain error by failing to dismiss the indictment sua sponte. Under the plain
error standard of review, our authority to remedy an error “is strictly circumscribed.”
Puckett v. United States, 556 U.S. 129, 134 (2009). In our discretion, we may correct an
error not raised in the district court only where the appellant demonstrates: (1) there is in
fact an error; (2) the error is clear or obvious, rather than subject to reasonable dispute;
(3) the error affected the appellant’s substantial rights, which in the ordinary case means
it affected the outcome of the district court proceedings; and (4) the error seriously affects
the fairness, integrity, or public reputation of judicial proceedings. United States v.
Marcus, 560 U.S. 258, 262 (2010). The appellant bears the burden of establishing
entitlement to plain-error relief. United States v. Dominguez Benitez, 542 U.S. 74, 82
(2004).
Perez-Arellano bases his argument, which he has raised for the first time in this
appeal, on the following reasoning: (1) under Pereira v. Sessions, 138 S.Ct. 2105 (2018),
the August 2004 NTA, which relates to his initial removal, is invalid because it failed to
state the date and time of the removal hearing; (2) because of the invalidity of the 2004
NTA, the immigration judge who ordered his 2004 removal lacked jurisdiction to enter
the removal order; (3) because of the asserted jurisdictional defect, the 2004 removal
order and all subsequent proceedings based on the 2004 NTA are void; and (4) because a
valid removal order is an element of a § 1326 prosecution, the government cannot
prosecute him for the crime charged in this case. In response, the government argues that
Perez-Arellano waived any objection to his 2004 removal by executing the August 2004
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Stipulation because he admitted the allegations in the NTA and conceded his
removability. The government alternatively argues that Perez-Arellano has failed to
demonstrate that the court plainly erred by not dismissing the indictment and that we
should decline to notice the alleged error in any event.
For support on its waiver argument, the government points to Qureshi v. Gonzales,
442 F.3d 985 (7th Cir. 2006), which was before the court on a petition for review of a
removal order. There, the petitioner argued that the immigration judge erred by not
terminating the proceedings based on an omitted date on the certificate of service
accompanying his NTA. Similar to Perez-Arellano’s argument, the petitioner contended
that the immigration judge lacked jurisdiction to conduct the removal proceedings
because the omitted date of service rendered the NTA insufficient to initiate proceedings
against him. The Seventh Circuit rejected this claim, noting that “[w]hen a petitioner
expressly concedes his removability as charged in the NTA, he waives any objection to
the [immigration judge’s] finding of removability, including the argument that the
[immigration judge] lacked jurisdiction to find him removable.” Id. at 990. Applying this
principle, the court held that because the petitioner failed to object to the admission of the
NTA, conceded his removability, and pled to the charge in the NTA, all before claiming
that the certificate of service was defective, he waived his challenge to the immigration
judge’s jurisdiction over the removal proceedings. Id.We find Qureshi persuasive and agree with the government that Perez-Arellano
waived his challenge to the validity of the 2004 removal proceeding. As we have noted,
by signing the August 2004 Stipulation Perez-Arellano knowingly and voluntarily
5
conceded his removability and relinquished a host of rights, including his right to be
present at, or even have, a removal hearing.
Moreover, regardless of whether the waiver doctrine itself is applicable, we find
that Perez-Arellano is not entitled to plain error relief given the circumstances of this
case. Fundamentally, we disagree with Perez-Arellano’s assertion that the district court
erred at all, much less plainly erred. Simply put, Pereira did not address the question of
an immigration judge’s jurisdiction to rule on an alien’s removability, and it certainly
does not plainly undermine the jurisdiction of the 2004 removal proceeding. 2 In any
event, even assuming for the purposes of this opinion that the district court plainly erred
by not dismissing the indictment sua sponte, we would decline to correct the error
because it does not seriously affect the fairness, integrity, or public reputation of these
proceedings.
2
In Pereira, the Court explained that nonpermanent residents who are subject to
removal proceedings and have accrued 10 years of continuous physical presence in the
United States may be eligible for cancellation of removal. However, under the “stop-time
rule” set forth in 8 U.S.C. § 1229b(d)(1)(A), that period of continuous physical presence
is deemed to end when the alien is served an NTA under § 1229(a). Section 1229(a)
requires the Government to serve noncitizens in removal proceedings with an NTA
specifying several required pieces of information, including the time and place at which
the removal proceedings will be held. The Court set forth the “narrow question”
presented: “If the Government serves a noncitizen with a document that is labeled ‘notice
to appear,’ but the document fails to specify either the time or place of the removal
proceedings, does it trigger the stop-time rule?” 138 S.Ct. at 2110. The Court answered
this question in the negative, holding that “[a] notice that does not inform a noncitizen
when and where to appear for removal proceedings is not a ‘notice to appear under
section 1229(a)’ and therefore does not trigger the stop-time rule.” Id.6
Based on the foregoing, we affirm the conviction and sentence. We dispense with
oral argument because the facts and legal contentions are adequately presented in the
materials before this court and argument would not aid the decisional process.
AFFIRMED
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