United States v. Ruperto Guillen-Cervantes

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 12-10255
Plaintiff-Appellee,
D.C. No.
v. 4:10-cr-00753-
CKJ-JJM-5
RUPERTO GUILLEN-CERVANTES,
Defendant-Appellant.
UNITED STATES OF AMERICA, No. 12-10279
Plaintiff-Appellee,
D.C. No.
v. 4:10-cr-00753-
CKJ-JJM-6
BETTY CASTILLO,
Defendant-Appellant. OPINION
Appeals from the United States District Court
for the District of Arizona
Cindy K. Jorgenson, District Judge, Presiding
Argued and Submitted January 13, 2014, as to 12-10255;
Submitted January 13, 2014, as to 12-10279*
*
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
2 UNITED STATES V. GUILLEN-CERVANTES
Filed March 28, 2014
Before: Susan P. Graber and Jacqueline H. Nguyen, Circuit
Judges, and Raymond J. Dearie, Senior District Judge.**
Opinion by Judge Nguyen
SUMMARY***
Criminal Law
The panel affirmed a criminal forfeiture judgment entered
pursuant to 18 U.S.C. § 982(a)(6)(A) in a case in which Betty
Castillo, who was convicted of conspiracy to transport and
harbor illegal aliens, contended that the forfeiture judgment
violates her due process rights under the Fifth Amendment
because she is unable to seek contribution from other
members of the conspiracy.
The panel declined to find an implied right to contribution
under 18 U.S.C. § 982 or to fashion a new right to
contribution as a matter of federal common law. The panel
therefore rejected Castillo’s due process claim because she
can point to no constitutionally protected liberty or property
interest of which she has been deprived.
**
The Honorable Raymond J. Dearie, Senior District Judge for the U.S.
District Court for the Eastern District of New York, sitting by designation.
***
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
UNITED STATES V. GUILLEN-CERVANTES 3
COUNSEL
Joshua F. Hamilton (argued) and Clay Hernandez, Law
Offices of Hernandez & Robles, P.C., Tucson, Arizona, for
Defendant-Appellant Guillen-Cervantes.
Adrian G. Hall, Law Office of Adrian G. Hall, Tucson,
Arizona, for Defendant-Appellant Castillo.
Bruce M. Ferg (argued), Assistant United States Attorney;
Robert L. Miskell, Appellate Chief; John S. Leonardo, United
States Attorney, District of Arizona, Tucson, Arizona, for
Plaintiff-Appellee.
OPINION
NGUYEN, Circuit Judge:
In connection with activities performed as part of an alien
smuggling organization operating out of Tucson, Arizona,
Ruperto Guillen-Cervantes and Betty Castillo were convicted
of conspiring to transport and harbor illegal aliens, in
violation of 8 U.S.C. § 1324(a)(1). They each received a
term of imprisonment and a forfeiture judgment—thirty-
seven months and $229,000 for Guillen-Cervantes, and thirty-
seven months and $290,000 for Castillo. Castillo challenges
her forfeiture judgment on appeal, contending that it violates
her due process rights under the Fifth Amendment because
she is unable to seek contribution from other members of the
conspiracy.1 We review de novo a Fifth Amendment due
1
We address the remaining issues raised by Guillen-Cervantes and
Castillo in an unpublished memorandum disposition filed this date.
4 UNITED STATES V. GUILLEN-CERVANTES
process challenge to the constitutionality of a criminal
sentence. United States v. Garcia-Guizar, 234 F.3d 483, 489
n.2 (9th Cir. 2000). We affirm Castillo’s forfeiture judgment.
I.
To state a prima facie substantive or procedural due
process claim, one must, as a threshold matter, identify a
liberty or property interest protected by the Constitution. See
Wedges/Ledges of Cal., Inc. v. City of Phoenix, 24 F.3d 56,
62 (9th Cir. 1994). The Constitution itself creates no property
interests; rather, such interests “are created and their
dimensions are defined by existing rules or understandings
that stem from an independent source such as state law.”
Town of Castle Rock v. Gonzales, 545 U.S. 748, 756 (2005)
(quoting Paul v. Davis, 424 U.S. 693, 709 (1976)) (internal
quotation mark omitted). A constitutionally cognizable
property interest in a benefit requires more than “an abstract
need or desire” or a “unilateral expectation of it”—rather,
there must be “a legitimate claim of entitlement.” Id.
(quoting Bd. of Regents of State Colls. v. Roth, 408 U.S. 564,
577 (1972)). This typically requires an individual to
demonstrate that an existing law, rule, or understanding
makes the conferral of a benefit “mandatory.” Id. at 760
(emphasis omitted); see also id. at 756 (“Our cases recognize
that a benefit is not a protected entitlement if government
officials may grant or deny it in their discretion.”).
Castillo acknowledges, as she must, that neither 18 U.S.C.
§ 982(a)(6)(A)—the statutory clause pursuant to which her
forfeiture judgment was imposed—nor any other federal law,
rule, or understanding confers a mandatory right to
contribution in the current circumstance. Nevertheless, she
urges us to find an implied right to contribution under
UNITED STATES V. GUILLEN-CERVANTES 5
18 U.S.C. § 982, or to fashion a new right to contribution as
a matter of federal common law. Thus, in essence, Castillo
asks us to find or forge a right to contribution applicable in
the present case, and to hold that the deprivation of that right
as a consequence of her forfeiture order violates her Fifth
Amendment guarantee of due process. For the following
reasons, we decline to do so.
A.
A right to contribution may be found through the
affirmative creation of such a right by Congress, either
expressly or by “clear implication.” Tex. Indus., Inc. v.
Radcliff Materials, Inc., 451 U.S. 630, 638 (1981). When
implied, congressional intent controls; such intent may be
discerned by analyzing a statute’s legislative history and
other factors such as “the identity of the class for whose
benefit the statute was enacted, the overall legislative scheme,
and the traditional role of the states in providing relief.” Id.
at 639.
The legislative history of 18 U.S.C. § 982(a)(6)(A) offers
little support for finding an implied right to contribution.
Section 982(a)(6)(A) states that when a person is convicted
of conspiring to violate certain federal immigration laws, the
sentencing court “shall order” that individual to forfeit
property (1) derived from or traceable to the proceeds of the
conspiracy, or (2) used to facilitate the conspiracy’s criminal
activities. Included among the immigration laws listed is
Immigration and Nationality Act § 274(a), 8 U.S.C.
§ 1324(a)—the provision of the Act that Castillo was
convicted of violating. Section 274(a) was added to
18 U.S.C. § 982(a)(6)(A) by the Civil Asset Forfeiture
Reform Act of 2000, Pub. L. No. 106-185, 114 Stat. 202, and
6 UNITED STATES V. GUILLEN-CERVANTES
was listed as a “technical correction[] to existing criminal
forfeiture authority.” Id. § 18. As a House Report
accompanying an earlier version of the legislation explained,
the addition sought to correct an oversight in the drafting of
the Illegal Immigration Reform and Immigrant Responsibility
Act (IIRIRA) of 1996, Pub. L. No. 104-208, div. C, 110 Stat.
3009. See H.R. Rep. No. 105-358, at 63. Although
“Congress intended [in the IIRIRA] to authorize criminal
forfeiture for violations of 8 U.S.C. [§] 1324(a),” certain
“technical errors . . . null[ified] the intended effect.” Id. And
that “intended effect,” according to the original author of
§ 982(a)(6)(A), was to quell “the pernicious practice of alien
smuggling” by expanding the reach of criminal forfeiture
laws to include the proceeds of alien smuggling activity.
146 Cong. Rec. E14-01 (extension of remarks of Rep. Carrie
P. Meek) (“Current law also does not permit the forfeiture of
the proceeds of an alien smuggling offense. . . . My bill
corrects these deficiencies . . . .”). This background belies
any argument that Congress intended (impliedly or not) for a
right to contribution to exist for those convicted of conspiring
to violate federal immigration laws.
The remaining factors identified by the Texas Industries
Court similarly weigh against finding an implied right to
contribution. Section 982(a)(6)(A) was decidedly not enacted
for the benefit of conspirators working to smuggle illegal
aliens into this country—rather, as noted above, it was
designed for their detriment. Moreover, the legislative
scheme of which § 982(a)(6)(A) was intended to be a
part—namely, the IIRIRA—sought to strengthen enforcement
of federal immigration laws. See, e.g., IIRIRA §§ 101–112
(border control); id. §§ 121–125 (facilitation of legal entry);
id. §§ 131–134 (interior enforcement); id. §§ 201–220
(enhanced enforcement and penalties against alien smuggling
UNITED STATES V. GUILLEN-CERVANTES 7
and document fraud); id. §§ 401–421, 501–510 (restrictions
on employment and benefits). Finally, even though this is not
an area of law traditionally relegated to the states such that
inferring a federal right to contribution would be
inappropriate, see Arizona v. United States, 132 S. Ct. 2492,
2499 (2012) (noting that federal agencies “play a major role
in enforcing the country’s immigration laws”), we do not find
this fact dispositive.
B.
Alternatively, we may fashion a right to contribution as a
matter of federal common law. See Tex. Indus., 451 U.S. at
638. Instances in which it is appropriate for courts to craft
new rules of federal common law, however, are “few and
restricted.” Id. at 640 (quoting Wheeldin v. Wheeler,
373 U.S. 647, 651 (1963)) (internal quotation marks omitted).
They generally fall into two categories: where a federal rule
of decision is “necessary to protect uniquely federal
interests,” id. (quoting Banco Nacional de Cuba v. Sabbatino,
376 U.S. 398, 426 (1964)) (internal quotation marks omitted),
and where Congress has empowered the federal courts to
develop substantive law, id.
The first category is inapplicable here, as the expansion
of federal common law into immigration law is hardly
“necessary to protect uniquely federal interests.” “Federal
governance of immigration and alien status is extensive and
complex.” Arizona, 132 S. Ct. at 2499. Federal law
identifies specific categories of aliens who may not be
admitted into this country, see 8 U.S.C. § 1182, improper
entry and reentry are designated federal offenses, see
8 U.S.C. §§ 1325, 1326, and criminal punishments and
sanctions exist for those who assist or conspire to assist the
8 UNITED STATES V. GUILLEN-CERVANTES
unlawful entry of inadmissible aliens, see 8 U.S.C.
§ 1324(a)(1). In short, this appeal does not present the type
of situation “that oblige[s] courts to formulate federal
common law.” Tex. Indus., 451 U.S. at 642.
Within the second category, courts may establish new
rules of federal common law “when Congress has vested
jurisdiction in the federal courts and empowered them to
create governing rules of law.” Id. On two occasions, the
Supreme Court has found itself so empowered. First, in
Cooper Stevedoring Co., Inc. v. Fritz Kopke, Inc., 417 U.S.
106 (1974), the Supreme Court found a right to contribution
between joint tortfeasors in a maritime action for personal
injuries. Id. at 113. That action arose, however, in the
context of the Court’s admiralty jurisdiction, “one of the
areas long recognized as subject to federal common law.”
Tex. Indus., 451 U.S. at 642. Second, in Musick, Peeler &
Garrett v. Employers Insurance of Wausau, 508 U.S. 286
(1993), the Court held that defendants in an action brought
under Rule 10b-5 of the Securities and Exchange
Commission had a right to seek contribution as a matter of
federal common law. Id. at 298. The Court noted that the
private right of action under Rule 10b-5 had been a judicial
creation. Id. at 291. The Court thus went on to conclude that
responsibility for shaping the Rule 10b-5 action was a “task
. . . Congress has left to us.” Id. at 294.
Congress has delegated no such authority to the federal
courts to craft new rules governing the enforcement of or
punishments for violating federal immigration laws. As the
Supreme Court has noted, “control over matters of
immigration is a sovereign prerogative, largely within the
control of the executive and the legislature.” Landon v.
Plasencia, 459 U.S. 21, 34 (1982). We have similarly
UNITED STATES V. GUILLEN-CERVANTES 9
observed that “[t]he scope of judicial inquiry into
immigration legislation is exceedingly narrow . . . [because]
‘over no conceivable subject is the legislative power of
Congress more complete than it is over the admission of
aliens.’” United States v. Barajas-Guillen, 632 F.2d 749, 752
(9th Cir. 1980) (quoting Fiallo v. Bell, 430 U.S. 787, 792
(1977)). Indeed, executive and legislative primacy in this
area stems from the federal government’s authority under the
Constitution to establish uniform rules of naturalization,
regulate commerce with foreign nations, and conduct foreign
affairs. See Toll v. Moreno, 458 U.S. 1, 10 (1982). Castillo
offers no compelling justification for departing from this
long-held understanding.
II.
Castillo possesses no right to contribution under existing
federal law, and we decline her invitation to find a new right
to contribution—either implied or as a matter of federal
common law. Consequently, her due process claim fails, as
she can point to no constitutionally protected liberty or
property interest of which she has been deprived.
Accordingly, we AFFIRM her forfeiture judgment.