United States v. Rocha

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206 2 United States v. Rocha No. 03-5149
ELECTRONIC CITATION: 2003 FED App. 0251P (6th Cir.)File Name: 03a0251p.06 ASSISTANT UNITED STATES ATTORNEY, Lexington,
Kentucky, for Appellee. ON BRIEF: Firooz T. Namei,
Candace C. Crouse, MCKINNEY & NAMEI, Cincinnati,
UNITED STATES COURT OF APPEALS Ohio, for Appellant. John Patrick Grant, Charles P. Wisdom,
Jr., ASSISTANT UNITED STATES ATTORNEY,
FOR THE SIXTH CIRCUIT Lexington, Kentucky, for Appellee.
_________________
_________________
UNITED STATES OF AMERICA , X
Plaintiff-Appellee, - OPINION
- _________________
- No. 03-5149
v. - RONALD LEE GILMAN, Circuit Judge. A federal grand
> jury indicted Alfonso Martinez-Rocha in May of 2002 on one
, count of unlawfully reentering the United States after having
ALFONSO MARTINEZ ROCHA, -
Defendant-Appellant. - been deported. Martinez-Rocha moved to dismiss the
indictment on the ground that the prior order of deportation
N was predicated on the legal error that his 1999 driving-under-
Appeal from the United States District Court the-influence (DUI) conviction was an “aggravated felony.”
for the Eastern District of Kentucky at Covington. After the district court denied his motion, Martinez-Rocha
No. 02-00030—Danny C. Reeves, District Judge. entered a conditional plea of guilty. He then appealed in
order to challenge the alleged legal error. For the reasons set
Argued: June 18, 2003 forth below, we AFFIRM the judgment of the district court.
Decided and Filed: July 25, 2003 I. BACKGROUND
Before: BOGGS and GILMAN, Circuit Judges; A. Factual background
MARBLEY, District Judge.*
Martinez-Rocha is a citizen of Mexico who entered the
_________________ United States without authorization in 1993. Approximately
six years later he was convicted in a Kentucky state court of
COUNSEL DUI and was sentenced to 18 months in prison, followed by
a probationary term. After Martinez-Rocha was released
ARGUED: Firooz T. Namei, MCKINNEY & NAMEI, from prison, he was arrested in Kentucky for violating the
Cincinnati, Ohio, for Appellant. John Patrick Grant, terms of his probation. The Immigration and Naturalization
Service (INS) took him into custody. According to INS
Agent Michael Galvan, who spoke with Martinez-Rocha
shortly thereafter, Martinez-Rocha “said he wanted to go back
*
The Honorable Algenon L. Marbley, United States District Judge for to Mexico and that he wanted to do it as soon as possible. He
the Southern District of Ohio, sitting by designation.
1
No. 03-5149 United States v. Rocha 3 4 United States v. Rocha No. 03-5149
actually contacted his probation officer, who in turn contacted B. Procedural background
me.”
A single-count indictment was returned against Martinez-
Martinez-Rocha was then transported to Louisiana. He Rocha, charging him with violating 8 U.S.C. § 1326, which
received a Notice of Intent to Issue Final Administrative prescribes a criminal penalty for “any alien who . . . (1) has
Removal Order in June of 2000. This notice advised him that been . . . deported . . ., and thereafter (2) enters . . . the United
the INS was seeking his deportation pursuant to 8 U.S.C. States” without authorization. 8 U.S.C. § 1326(a). The
§ 1227(a)(2)(A)(iii), which provides that “[a]ny alien who is indictment alleged that Martinez-Rocha was “an alien who
convicted of an aggravated felony at any time after admission had previously been deported following his conviction for an
is deportable.” aggravated felony.” An enhanced penalty applies to any alien
“whose removal was subsequent to a conviction for
On June 30, 2000, Martinez-Rocha signed an English- commission of an aggravated felony,” pursuant to 8 U.S.C.
language form acknowledging that he had received the Notice § 1326(b)(2).
of Intent. The form memorialized that the notice had been
read to Martinez-Rocha in Spanish. Martinez-Rocha also Martinez-Rocha filed a motion to dismiss the indictment.
signed his name below the following statement: He contended that his 1999 DUI conviction should not have
been considered an aggravated felony, so that the order of
I admit the allegations and charge in this Notice of Intent. removal in 2000 was erroneous. The government countered
I admit that I am deportable and acknowledge that I am that the underlying deportation order was not subject to
not eligible for any form of relief from removal. I waive collateral attack. After conducting a hearing, the district court
my right to rebut and contest the above charges and my denied the motion to dismiss. Martinez-Rocha then entered
right to file a petition for review of the Final Removal a conditional plea of guilty. He was sentenced to 15 months
Order. I do not wish to request withholding or deferral in prison. Although the district court also imposed a two-year
of removal. I wish to be removed to Mexico. term of supervised release, the judgment noted that this term
would not be applicable if Martinez-Rocha was deported after
The INS issued a final administrative removal order on the his imprisonment. This timely appeal followed.
same day. On July 13, 2000, Martinez-Rocha was deported.
II. ANALYSIS
A few months later, Martinez-Rocha again entered the
United States without authorization and returned to Kentucky. Martinez-Rocha argues that his 1999 DUI conviction
State authorities arrested him in April of 2002 because he had should not have been characterized as an aggravated felony.
not paid the financial penalties that he had incurred as the But a defendant charged with unlawfully reentering the
result of a traffic conviction. An INS agent then interviewed United States after having been ordered deported may not
Martinez-Rocha, who acknowledged that he had been challenge the validity of the underlying deportation order
deported in July of 2000. unless three statutory conditions are satisfied. The defendant
must demonstrate that:
(1) the alien exhausted any administrative remedies that
may have been available to seek relief against the order;
No. 03-5149 United States v. Rocha 5 6 United States v. Rocha No. 03-5149
(2) the deportation proceedings at which the order was of right to an administrative appeal did not comport with due
issued improperly deprived the alien of the opportunity process.”).
for judicial review; and
The district court, however, found that Martinez-Rocha’s
(3) the entry of the order was fundamentally unfair. waiver was considered and intelligent. We will not reverse a
district court’s factual finding unless it is clearly erroneous.
8 U.S.C. § 1326(d). United States v. Sykes, 292 F.3d 495, 497 (6th Cir.) (“A
district court’s determination that a waiver was knowingly
This court has not directly addressed the standard of review and voluntarily made is reviewed for clear error.”), cert.
for a collateral challenge under 8 U.S.C. § 1326(d) to a prior denied, 123 S. Ct. 400 (2002).
order of deportation. The circuits that have addressed the
issue, however, are unanimous in deciding that de novo Although Martinez-Rocha testified that he did not fully
review is appropriate. E.g., United States v. Zalaya, 293 F.3d understand the waiver because he did not speak “the whole
1294, 1297 (11th Cir. 2002) (holding that a district court’s English,” he signed a form stating that he did not wish to
denial of a motion to dismiss an indictment on the basis of a contest the charges that was read to him in both English and
collateral challenge to the underlying deportation order “is an Spanish. He also conferred with INS agents and with the
issue of law to be reviewed de novo on appeal,” and noting Mexican consulate prior to being deported, and his waiver
the agreement of the Second and Ninth Circuits). This was consistent with the testimony of Agent Galvan that
matches the standard applicable to a review of the district Martinez-Rocha had expressed a desire to return to Mexico as
court’s denial of a motion to dismiss an indictment on soon as possible. In addition, Martinez-Rocha’s testimony in
grounds that involve questions of law. E.g., In re Ford, 987 the district court reflects his command of English. The
F.2d 334, 339 (6th Cir. 1992) (“This court reviews de novo a district court therefore did not clearly err in crediting the
district court’s denial of a motion to dismiss an indictment on testimony of Agent Galvan and the documentary evidence
the grounds of double jeopardy.”). We find these authorities that Martinez-Rocha’s waiver was a knowing and considered
persuasive, and therefore will review the district court’s choice. See Anderson v. Bessemer City, 470 U.S. 564, 574
denial of Martinez-Rocha’s motion de novo. (1985) (“Where there are two permissible views of the
evidence, the factfinder’s choice between them cannot be
Martinez-Rocha admittedly did not exhaust his clearly erroneous.”); United States v. Cruse, No. 01-5874,
administrative remedies when he waived his right to contest 2003 WL 344337, at *5 (6th Cir. Feb. 7, 2003) (holding that
the ground on which he was deportable. But he claims that the district court did not clearly err in finding that the college-
his waiver was invalid because he did not understand at the educated defendant had knowingly and intelligently waived
time that he was, in fact, waiving his right to contest the his rights under Miranda v. Arizona, 384 U.S. 436 (1966), by
charges against him. See United States v. Mendoza-Lopez, signing a waiver form so indicating, despite the defendant’s
481 U.S. 828, 840 (1987) (holding that an alien’s waiver of testimony that “he neither read nor understood the waiver
the right to apply for suspension of deportation was invalid form before signing it”); United States v. Rangel de Aguilar,
where it was not “considered or intelligent”); United States v. 308 F.3d 1134, 1138-39 (10th Cir. 2002) (holding that a
Muro-Inclan, 249 F.3d 1180, 1183 (9th Cir. 2001) (“The defendant had no basis for collateral attack on her deportation
exhaustion requirement of 8 U.S.C. § 1326(d) cannot bar order where the evidence indicated that she had made a
collateral review of a deportation proceeding when the waiver considered and intelligent waiver of her right to contest the
No. 03-5149 United States v. Rocha 7
deportation proceedings), cert. denied, 123 S. Ct. 1372(2003).
At oral argument, counsel for Martinez-Rocha contended
that the waiver could not have truly been a considered choice
because other immigration options were available to
Martinez-Rocha in the summer of 2000 that did not have the
negative consequences of a deportation order. But a waiver
need not be the best choice under the circumstances in order
for it to be “considered and intelligent.” See United States v.
Turner, 287 F.3d 980, 984 (10th Cir. 2002) (acknowledging
that “[t]he use of the word intelligent within the standard used
to determine an effective waiver of counsel gives this court
some pause,” but concluding that “knowingly and
intelligently waiving the right to counsel is different from
making a wise decision”); cf. United States v. Peck, No. 01-
5586, 2003 WL 1465563, at *4 (6th Cir. Mar. 19, 2003)
(“Although the decision to represent himself may not have
been in [the defendant’s] best interest, the record supports the
district court’s conclusion that [the defendant] was competent
to make that choice, and that he did so knowingly and
voluntarily.”). Because the district court did not clearly err in
deciding that the waiver at issue here met those criteria,
Martinez-Rocha has failed to satisfy any of the requirements
of 8 U.S.C. § 1326(d). He is therefore barred from
collaterally attacking his prior order of deportation.
III. CONCLUSION
For all of the reasons set forth above, we AFFIRM the
judgment of the district court.