UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4834
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JAIME CISNEROS-GARCIA, a/k/a Marcos Jaime
Garcia, a/k/a Marco Antonio Cruz,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Richard L. Voorhees,
District Judge. (CR-03-96)
Argued: September 22, 2005 Decided: December 14, 2005
Before TRAXLER and GREGORY, Circuit Judges, and R. Bryan HARWELL,
United States District Judge for the District of South Carolina,
sitting by designation.
Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.
ARGUED: Aaron Edmund Michel, Charlotte, North Carolina, for
Appellant. Amy Elizabeth Ray, OFFICE OF THE UNITED STATES
ATTORNEY, Asheville, North Carolina, for Appellee. ON BRIEF:
Gretchen C. F. Shappert, United States Attorney, Joshua B. Howard,
Assistant United States Attorney, Charlotte, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Defendant-Appellant, Jaime Cisneros-Garcia, appeals from his
125 month prison sentence for being a previously deported alien
found in the United States in violation of 8 U.S.C. §§ 1326(a)1 and
(b)(2).2 As explained below, we affirm Cisneros-Garcia’s
conviction, however, we vacate his sentence and remand for
resentencing.
1
Subject to subsection (b) of this section, any alien who--
(1) has been denied admission, excluded, deported, or
removed or has departed the United States while an order
of exclusion, deportation, or removal is outstanding, and
thereafter
(2) enters, attempts to enter, or is at any time found
in, the United States, unless (A) prior to his
reembarkation at a place outside the United States or his
application for admission from foreign contiguous
territory, the Attorney General has expressly consented
to such alien's reapplying for admission; or (B) with
respect to an alien previously denied admission and
removed, unless such alien shall establish that he was
not required to obtain such advance consent under this
chapter or any prior Act,
shall be fined under Title 18, or imprisoned not more
than 2 years, or both.
8 U.S.C. § 1326(a).
2
“[I]n the case of any alien described in such subsection . .
. whose removal was subsequent to a conviction for commission of an
aggravated felony, such alien shall be fined under such Title,
imprisoned not more than 20 years, or both.” 8 U.S.C. §
1326(b)(2).
2
I.
Cisneros-Garcia claims that the district judge erred in (i)
denying his motion for judgment of acquittal; (ii) applying a
sixteen offense level enhancement called for under the sentencing
guidelines; and (iii) applying three criminal history points rather
than two criminal history points.
Cisneros-Garcia’s trial began on October 16, 2003. The United
States called as its first witness Special Agent Jose Romero, whose
testimony was used to lay the foundation of the case. On cross-
examination of Romero, defense counsel, for the first time,
challenged the validity of the prior deportation order and asked
that the issue go to the jury as an affirmative defense. The
government objected to the line of questioning and presented the
district court with case law to support their position that a prior
deportation is a matter of law for the court rather than the jury
to decide. The district court found that, in light of his prior
conviction for an aggravated felony, Cisneros-Garcia did not
present evidence to support that the deportation was fundamentally
unfair and sustained the government’s objection.
At the close of the government’s case, the defendant made a
motion for judgment of acquittal pursuant to Federal Rule of
Criminal Procedure 29, asserting that the government had not proven
his actual deportation prior to his re-entry. The district court
denied the motion. Defense counsel rested without presenting any
3
evidence and renewed his Rule 29 motion, which again was denied.
The jury found the defendant guilty on October 17, 2003. Defense
counsel made a Rule 29 motion for reconsideration “due to the
ineffectiveness of counsel in failing adequately to assist
[Defendant] in his defense.” (J.A. 229-66.) This motion was
denied.
The presentence report (PSR) assessed a base offense level of
eight, with an additional sixteen level enhancement because
Cisneros-Garcia had been previously deported after conviction of an
aggravated felony for which the sentence imposed exceeded thirteen
months. See § 2L1.2(b)(1)(A)(I). The PSR reflected a subtotal of
ten criminal history points. The PSR called for two additional
criminal history points because the defendant committed the new
offense while on probation for a prior offense. See § 4A1.1(d).
The PSR also called for an additional one criminal history point
because the new offense was committed less than two years from his
release for prior offenses. See § 4A1.1(e). These factors
resulted in a total of thirteen criminal history points and a
criminal history category of VI. The defendant opposed the §§
4a1.1(d) and (e) three criminal history points and instead argued
for two criminal history points. The district court overruled the
objection.
The district court adopted an offense level of 24 and a
criminal history category of VI and sentenced Cisneros-Garcia to
4
125 months in prison. The sentencing court also stated a
provisional sentence, treating the guidelines as advisory, of the
same period of months.
II.
Cisneros-Garcia first claims that the district court erred in
denying his motion for judgment of acquittal on the basis that his
earlier deportation proceeding was conducted without sufficient
procedural due process. He seeks to collaterally attack the
validity of the underlying deportation order.
Cisneros-Garcia asserts that a warrant of removal/deportation
was improperly issued and executed while the appeal of his
deportation was pending. He argues that because his appeal was
pending, execution of the warrant was automatically stayed pending
the appeal. See 8 C.F.R. § 3.6. Consequently, he argues that
while he “departed the United States” he did not do so “while an
order of exclusion, deportation, or removal [was] outstanding.”
An illegal alien has almost no right to remain in the United
States. See Appiah v. United States, 202 F.3d 704, 709 (4th Cir.
2000). Suspension of deportation is an act of grace that rests
entirely in the discretion of the Attorney General. See id.
However, where a determination in an administrative proceeding is
to play a critical role in a later criminal sanction, there must be
some meaningful review of the administrative proceeding. See
5
United States v. Mendoza-Lopez, 481 U.S. 828, 837-38 (1987).
“Depriving an alien of the right to have the disposition in a
deportation hearing reviewed in a judicial forum requires, at a
minimum, that review be made available in any subsequent proceeding
in which the result of the deportation proceeding is used to
establish an element of a criminal offense.” Id. at 838. Congress
codified the protections mandated by Mendoza-Lopez in 8 U.S.C. §
1326(d). See United States v. Wilson, 316 F.3d 506, 510 n. 1. (4th
Cir. 2003). Under 8 U.S.C. § 1326(d),
In a criminal proceeding under this section, an alien may
not challenge the validity of the deportation order
described in subsection (a)(1) or subsection (b) unless
the alien demonstrates that--
(1) the alien exhausted any administrative remedies
that may have been available to seek relief against the
order;
(2) the deportation proceedings at which the order
was issued improperly deprived the alien of the
opportunity for judicial review; and
(3) the entry of the order was fundamentally unfair.
The fundamental unfairness prong has two sub-parts. A defendant
must show: (1) his due process rights were violated by defects in
the underlying deportation proceeding; and (2) he suffered
prejudice as a result of the defects. See Wilson, 316 F.3d at 510.
A showing of prejudice requires a defendant to prove a reasonable
likelihood that, but for the errors complained of, he would not
have been deported. See id.
Appellant did not challenge his prior deportation before
trial, but instead attempted to collaterally attack his prior
6
deportation in front of the jury. While § 1326(d) permits an alien
to challenge the legality of his prior deportation order, it was
not intended that the validity of a prior deportation be
contestable as part of a § 1326 jury trial. Mendoza-Lopez, 481
U.S. at 836. Instead, any review of the legality of a prior
deportation order should be undertaken pretrial: “The [Mendoza-
Lopez] Court concluded that since lawful deportation was a material
element of the statutory offense, due process required, in this
limited situation, a pretrial review of whether the prior
deportation order was lawful.” Smith v. Ashcroft, 295 F.3d 425,
431 (4th Cir. 2002) (emphasis in original).
Appellant’s effort to attack the validity of his prior
deportation in front of the jury does not fit the niche carved out
by Mendoza-Lopez because it did not come to the judge before trial.
Having failed to present the issue to the district court before
trial, the appellant waived any challenge he may have had to
collaterally attack his prior deportation.
Even if Cisneros-Garcia had not waived his right to challenge
the legality of his prior deportation before trial, the district
judge properly denied his motion for judgment of acquittal. As
discussed above, the appellant must first establish that his due
process rights were violated by defects in the underlying
deportation proceeding. The first step in evaluating a procedural
due process claim is determining whether a constitutionally
7
protected interest has been implicated. See Tigrett v. Rector &
Visitors of Univ. of Va., 290 F.3d 620, 628 (4th Cir. 2002).
Appellant concedes that he was seeking a form of discretionary
relief from the deportation order pursuant to § 212(c) of the
Immigration and Nationality Act. However, this Court has
explicitly held that there is no due process right to § 212(c)
relief. See Wilson, 316 F.3d 506; Smith, 295 F.3d 425. There can
be no due process violation where a defendant is not entitled to
seek purely discretionary § 212(c) relief.
Appellant has also failed to show that he suffered prejudice
as a result of the claimed violation. To establish prejudice a
defendant must show a reasonable likelihood that but for the errors
complained of, the defendant would not have been deported. See
Wilson, 316 F.3d 506. This court has stated that “when an alien
has a serious record of criminal activity, he must demonstrate
‘unusual or outstanding’ equities in order to be eligible for a
favorable exercise of discretion.” Id. at 511. Cisneros-Garcia
had at least two prior convictions for transporting or selling
narcotic controlled substances and one probation revocation at the
time of his deportation proceedings. Appellant was convicted of
using or being under the influence of controlled substances prior
to deportation. Appellant has failed to show that he would not
have been deported but for the alleged due process violations. The
district court correctly concluded that defendant demonstrated no
8
equities to support a finding of prejudice and that the collateral
attack was invalid.
III.
Cisneros-Garcia next claims that the district court erred in
ruling that the alleged fact of a deportation following an
aggravated felony is not an element of the crime; rejecting his
challenge to that element; and overruling his objection at
sentencing to a sixteen offense level enhancement.
As noted above, the PSR establishes a base offense level of
eight and enhances this by sixteen levels based on the deportation
following a conviction of a felony that is a drug trafficking
offense for which the sentence imposed exceeded thirteen months.
See § 2L1.2(b)(1)(A)(I). Appellant argues that this sixteen point
enhancement was improper because it violates the Sixth Amendment
right to a jury trial on each essential element of the crime.
Appellant clarifies that his “argument is not that the federal
sentencing guidelines are unconstitutional, but that the guidelines
are subject to constitutional constraints including the limitation
on conditions under which a statutory maximum sentence, as the
concept is defined under Blakely [v. Washington, 542 U.S. 296
(2004)], may be enhanced.” (Appellant’s Brief p. 38-39.)
Appellant further asserts that the facts do not support such a
sixteen point enhancement.
9
Subsection (a) of 8 U.S.C. § 1326 sets forth the elements of
the crime of reentry by a previously deported alien and does not
include reference to an alien’s criminal history. Subsection (b)
of 8 U.S.C. § 1326 provides enhanced penalties for the crime and
specifically addresses the sentencing consequences of a prior
aggravated felony conviction. The United States Supreme Court
addressed the distinction between §§ 1326 (a) and (b)(2) in
Alamendarez-Torres v. United States, 523 U.S. 224 (1998). In
Alamendarez-Torres the Court stated that “[i]f subsection (b)(2)
sets forth a separate crime, the Government would be required to
prove to the jury that the defendant was previously deported
‘subsequent to a conviction for commission of an aggravated
felony.’” Id. at 234-235. The Court then held that Congress had
set forth a sentencing factor in subsection (b)(2) and not a
separate criminal offense. See id. at 235.
Prior to his 1999 deportation, the appellant had been
convicted of more than one felony drug trafficking offense. These
crimes constitute aggravated felonies as defined in 8 U.S.C. §
1101(a)(43). The United States gave the appellant notice that it
intended to pursue the sentencing enhancement by charging in the
indictment that he was “an alien who had been previously convicted
of an aggravated felony.” (J.A. 14.) At trial, the appellant
conceded the prior aggravated felony conviction rather than
requiring the government to establish the details of his criminal
10
history before the jury. With the agreement of the district court
and the appellant, the United States submitted a redacted
indictment to the jury that omitted reference to the aggravated
felonies. The parties redacted references to appellant’s
aggravated felonies in other trial exhibits as well. In light of
the stipulations of the parties at trial and the documentation of
appellant’s criminal history prepared for the sentencing court, the
district court correctly applied the sixteen level enhancement.
Additionally, we note that the Supreme Court held in Blakely
that the jury trial requirement of facts that increase a criminal
defendant’s statutory maximum sentence does not apply to “the fact
of a prior conviction.” Blakely, 542 U.S. at 301. This exception
was recently reaffirmed in the decision of United States v. Booker,
125 S.Ct. 738 (2005).
IV.
Appellant’s last claim is that the district court erred in
applying three criminal history points rather than two criminal
history points.3 Appellant argues that to add more than two points
for his being found in the United States within two years of his
3
While the appellant refers to this as an “enhancement,” this
is not an appropriate use of the term as it is used in the
Sentencing Guidelines. To determine a defendant’s criminal history
category under § 4A1.1, one is to add the total points from items
(a) through (f). These points are not referred to as
“enhancements.”
11
release from his 2002 state conviction (§ 4A1.1(e)) would be to
take judicial notice of facts not decided by the jury.4 In his
brief appellant states:
To attribute more to Mr. Garcia would be to take judicial
notice of facts not decided by the jury, such as the
alleged reentry into the United States hours after he was
deported and the alleged status of being found in the
United States during the three days that he was on
probation in 2002 for the very same offense that gave
rise to the two-point enhancement of being found in the
United States on May 9, 2003, within two years of his
release from this 2002 conviction. This would appear to
inflict multiple punishments for the same conduct and to
result in excessive and unfair punishment.
(Appellant’s Brief p. 41-42.)
The total of the appellant’s criminal history points was
thirteen which placed him in a criminal history category of VI. In
determining the appellant’s criminal history category, the district
court added two points, pursuant to § 4A1.1(d), because the
defendant was on probation for Trafficking in Cocaine by
Possession. The district court also added one point, pursuant to
§ 4A1.1(e), because the instant offense was committed less than two
years following the defendant’s release from custody.5
4
As discussed below, the district court only added one point
pursuant to § 4A1.1(e), however, the appellant apparently
acknowledges that under § 4A1.1(e) two points are to be added
unless two points have already been added under item (d).
5
As mentioned above, the appellant does not challenge the
addition of this one point and apparently concedes that two points
are to be added if no points are added under item (d).
12
When considering the appellant’s challenge to the district
court’s application of two criminal history points pursuant to §
4A1.1(d),6 we must determine whether the factual basis for the
application comes within the prior conviction exception. As
previously noted, the Supreme Court held in Blakely that the jury
trial requirement of facts that increase a criminal defendant’s
statutory maximum sentence does not apply to “the fact of a prior
conviction,” Blakely, 542 U.S. at 301, and this exception was
recently reaffirmed in Booker, 125 S.Ct. 738 (2005).
However, subsequent to Booker, the Supreme Court held in
Shepard v. United States, 125 S.Ct. 1254, 1262-63 (2005), that the
Sixth Amendment is violated when a sentence increase is based on a
disputed fact about a prior conviction that is not evident from the
prior judicial record. Specifically, the Supreme Court held in
Shepard that “[w]hile the disputed fact here can be described as a
fact about a prior conviction, it is too far removed from the
conclusive significance of a prior judicial record . . . .” Id. at
1262. Likewise, this court recently found in United States v.
Washington, 404 F.3d 834, 842-43 (4th Cir. 2005), that a sentencing
court’s reliance on facts outside of the prior indictment to
6
While the government apparently interprets Cisneros-Garcia’s
argument to be a challenge to § 4A1.1(e) and not (d), we find that
the appellant has in fact presented a challenge to the application
of § 4A1.1(d).
13
resolve a disputed fact about a prior conviction was error under
Booker and Shepard.
In this case, the district court relied on information
presented in the PSR to apply two criminal history points pursuant
to 4A1.1(d), which allows for those points to be added if the
appellant was on probation at the time of the instant offense.
However, it is not apparent from the judicial record that the
appellant was on probation at the time of the instant offense,
which according to the indictment occurred on May 9, 2003. In
fact, just the opposite is apparent as the PSR reflects that the
appellant’s probation was revoked on February 21, 2002.
Therefore, we find that the sentence was increased beyond the
maximum permitted by the facts found by the jury or, as far as we
can tell, admitted by the defendant. Without the additional
criminal history points under § 4A1.1(d) the appellant would have
been in the lower criminal history category of V and the resulting
guideline range of 92-115 months as opposed to 100-125 months. The
district court’s application of § 4A1.1(d) in this case resulted in
at least ten months of additional imprisonment for the appellant.
Under these circumstances, “the sentence imposed by the district
court as a result of the Sixth Amendment violation was longer than
that to which he would otherwise be subject,” United States v.
Hughes, 401 F.3d 540, 548 (4th Cir. 2005) (quoting United States v.
Angle, 254 F.3d 514, 518 (4th Cir. 2001) (en banc)), and the
14
sentence contravened the appellant’s substantial rights. See
Hughes, 401 F.3d at 548.
V.
We are of the opinion that the district court properly
considered the defendant’s prior deportation and affirm the
conviction. However, pursuant to the foregoing, we vacate
Cisneros-Garcia’s sentence and remand for resentencing.7
AFFIRMED IN PART,
VACATED IN PART, AND REMANDED
7
On remand, the district court should first determine the
appropriate sentencing range under the guidelines, making all
factual findings appropriate for that determination. Hughes, 401
F.3d at 546. The court should consider this sentencing range along
with the other factors identified in 18 U.S.C.A. § 3553(a) (West
2000 & Supp. 2005) and then impose a sentence. Hughes, 401 F.3d at
546. If that sentence falls outside the guideline range, the court
should explain its reasons for the departure as required by 18
U.S.C.A. § 3553(c)(2) (West 2000 & Supp. 2005). Hughes, 401 F.3d
at 546. The sentence must be “within the statutory prescribed
range and . . . reasonable.” Id. at 547.
15