United States v. Villanueva-Cardenas

Case: 21-40525 Document: 00516644592 Page: 1 Date Filed: 02/13/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
February 13, 2023
No. 21-40525 Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Jose Villanueva-Cardenas,
Defendant—Appellant.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:20-CR-2114-1
Before Graves, Ho, and Duncan, Circuit Judges.
Per Curiam:
Jose Villanueva-Cardenas pled guilty without a plea agreement to
being unlawfully present in the United States after removal, in violation of
8 U.S.C. § 1326. The district court sentenced Villanueva-Cardenas within
the Guidelines range to 27 months of imprisonment and imposed a three-year
term of supervised release. 1 The district court imposed a special condition of
1
Villanueva-Cardenas’s revocation proceedings were held in conjunction with his
sentencing hearing for the illegal reentry offense. The Federal Public Defender filed a
motion to withdraw in accordance with Anders v. California, 386 U.S. 738 (1967), in the
revocation matter, and this court granted the motion and dismissed the appeal. See United
Case: 21-40525 Document: 00516644592 Page: 2 Date Filed: 02/13/2023
No. 21-40525
supervised release requiring that Villanueva-Cardenas be surrendered to
immigration officials for deportation proceedings after his release from
confinement and that, if officials decline to take custody of Villanueva-
Cardenas, he immediately depart the United States and return to Mexico.
Villanueva-Cardenas argues that the judgment should be amended to exclude
the “self-deport” condition because the district court lacked the authority to
impose this condition under 18 U.S.C. § 3583(d). 2 United States v. Quaye, 57
F.3d 447, 449–51 (5th Cir. 1995). The Government agrees.
In a recent opinion, this court held that a district court “lack[s]
authority under § 3583(d) to order [a defendant] to self-deport as a condition
of supervised release.” United States v. Badillo, 36 F.4th 660, 661 (5th Cir.
2022). Similarly here, the district court exceeded its authority by ordering
Villanueva-Cardenas to self-deport as one of his conditions of supervised
release.
The judgment is VACATED in part and the case is REMANDED
for the entry of a new written judgment without the special condition
requiring that Villanueva-Cardenas depart from the United States.
States v. Villanueva-Cardenas, 2022 WL 866292, at *1 (5th Cir. Mar. 23, 2022)
(unpublished).
2
Villanueva-Cardenas did not object to the condition of supervised release.
Typically, when a defendant does not object to a condition of supervised release when the
defendant has notice of the condition and an opportunity to object, we review the
imposition of the condition for plain error only. See United States v. Diggles, 957 F.3d 551,
559–60 (5th Cir. 2020) (en banc). Villanueva-Cardenas argues that de novo review should
apply, because he challenged the district court’s authority on constitutional grounds. We
decline to reach this argument since the judgment should be reformed regardless of the
applicable standard of review.
2
Case: 21-40525 Document: 00516644592 Page: 3 Date Filed: 02/13/2023
No. 21-40525
Stuart Kyle Duncan, Circuit Judge, joined by James C. Ho, Circuit
Judge, concurring in the judgment:
In United States v. Badillo, 36 F.4th 660 (5th Cir. 2022), a panel of our
court recently held that district judges lack authority to order an alien to self-
deport as a condition of supervised release. Id. at 661. Because Badillo
controls here, I concur in the judgment.
I write separately, however, because Badillo’s holding is hard to
square with the plain text of the governing statute. See 18 U.S.C. § 3583(d).
That statute says that a district court can impose “any” condition it deems
“appropriate,” as long as it makes the relevant findings specified by
subsections (1)–(3). Id. § 3583(d) (emphasis added). It further explains that
“[i]f an alien defendant is subject to deportation, the court may provide, as a
condition of supervised release, that he be deported and remain outside the
United States, and may order that he be delivered to a duly authorized
immigration official for such deportation.” Ibid. Nothing about that language
plainly excludes a district court’s authority to order self-deportation.
Almost three decades ago, in United States v. Quaye, 57 F.3d 447 (5th
Cir. 1995), this court observed that § 3583(d) only “authorizes district courts
to ‘provide,’ not ‘order,’ that an alien be deported and remain outside the
United States.” Id. at 449 (emphases added). This meant that district courts
could only order that an alien be surrendered to immigration officials for
deportation. Ibid. (quoting United States v. Sanchez, 923 F.2d 236, 237 (1st
Cir. 1991) (per curiam)). It is then up to the immigration officials to decide
whether to carry out the actual deportation. Ibid. Simply put, courts could
not “order the Attorney General to deport the defendant if she chose not to
do so.” Ibid. This holding was understandably rooted in separation-of-
powers concerns; courts should not intrude on what has been traditionally
regarded as an executive prerogative. See id. at 449–50.
3
Case: 21-40525 Document: 00516644592 Page: 4 Date Filed: 02/13/2023
No. 21-40525
Badillo took this reasoning a step further, relying on Quaye to find that
§ 3583(d) does not authorize district courts to order that an alien
“immediately depart the United States and return to Mexico,” in the event
that immigration officials decline to take custody of him. Badillo, 36 F.4th at
661. But ordering an alien to leave the country on his own power is different
from ordering immigration officials to deport him. For one thing, it does not
implicate Quaye’s separation-of-powers concerns; ordering an alien to
remove himself from the country does not compel the Executive Branch to do
anything. It is also not foreclosed by § 3583(d). Section 3583(d) authorizes
district courts to (1) “provide” that immigration officials deport an alien, and
(2) “order” the alien’s surrender to immigration officials. Nothing about
that is inconsistent with an order that the alien remove himself from the
country—especially where immigration officials, for whatever reason, fail to
take custody of the alien. So, because an order to self-deport is consistent
with both this text and with the separation of powers, I question whether
Badillo was right to exclude such orders from a district court’s otherwise
broad authority under § 3583(d) to impose “any” appropriate condition.
Notably, in Badillo, the government “conceded error under Quaye.”
Badillo, 36 F.4th at 661. The government’s concession obviously does not
bind our court’s reading of the statute. Moreover, Badillo had argued that
self-deportation was plainly erroneous because it was “not reasonably
related” to the § 3553(a) factors. Ibid. I fail to see any error, much less plain
error, in the self-deportation condition. Badillo spent three years in prison for
illegally reentering the United States. Id. at 660. It is directly relevant to the
§ 3553(a) factors to require him—should immigration officials fail to do their
jobs—to leave the country on his own steam. See, e.g., § 3553(a)(1)
(sentencing court shall consider, inter alia, “the nature and circumstances of
the offense”).
4