F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
DEC 8 2004
UNITED STATES COURT OF APPEALS PATRICK FISHER
Clerk
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 03-4161
JOSELITO SANDOVAL,
Defendant-Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
(D.C. No. 1:02-CR-88)
Michael S. Lee, Assistant United States Attorney, Salt Lake City, Utah, for
Plaintiff-Appellee.
Sharon Preston, Salt Lake City, Utah, for Defendant-Appellant.
Before SEYMOUR, MURPHY , and McCONNELL , Circuit Judges.
McCONNELL , Circuit Judge.
Joselito Sandoval was removed from the United States to El Salvador in
1999. After he entered the United States through Mexico in 2002, Mr. Sandoval
was arrested and charged with illegal reentry of a removed alien in violation of 8
U.S.C. § 1326. Mr. Sandoval entered a plea of guilty, but, immediately before
sentencing, he filed a motion to withdraw his plea on the ground that his counsel
failed to advise him of an available defense. In support of his motion, Mr.
Sandoval argued that his 1999 deportation proceeding was fundamentally unfair
and therefore could not be used to establish an element of the illegal reentry
charge. The district court denied the Motion to Withdraw, finding that his
deportation proceeding was not fundamentally unfair. The district court entered a
judgment of conviction and sentenced Mr. Sandoval to 70 months imprisonment
and 36 months of supervised release. Exercising jurisdiction under 18 U.S.C. §
3742(a)(2), we AFFIRM.
I.
Section 212 of the Immigration and Nationality Act of 1952 (INA), 8
U.S.C. § 1182, authorized the exclusion of certain aliens from the United States,
including aliens convicted of a crime of moral turpitude. Id. §
1182(a)(2)(A)(i)(I). As originally enacted, § 212(c) granted the Attorney General
discretion to admit excludable aliens who had resided lawfully in the United
States for seven consecutive years. See 8 U.S.C. 1182(c) (“Aliens lawfully
admitted for permanent residence who temporarily proceeded abroad voluntarily
and not under an order of deportation, and who are returning to a lawful
2
unrelinquished domicile of seven consecutive years, may be admitted in the
discretion of the Attorney General . . . .”). The Board of Immigration Appeals
interpreted this provision to permit any permanent resident alien with seven years
of lawful unrelinquished domicile to apply for a waiver of deportation. See INS v.
St. Cyr, 533 U.S. 289, 295 (2001) (citing Matter of Silva, 16 I&N Dec. 26, 30
(1976)). However, aliens who had served more than five years in prison for an
aggravated felony were not eligible to apply for discretionary relief under §
212(c). See id. at 297 (citing INA § 511, 104 Stat. 5052).
In 1996, Congress passed two laws that limited the availability of relief
under § 212(c). The Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA) provided that aliens convicted of an aggravated felony, among other
offenses, could no longer apply for discretionary relief. See AEDPA § 440(d),
Pub. L. 104-132, 110 Stat. 1214, 1277 (amending 8 U.S.C. § 1182(c)). The
Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) repealed
§ 212(c) entirely. IIRIRA § 304(b), Pub. L. 104-208, 110 Stat. 3009-546
(codified at 8 U.S.C. § 1252(a)(2)(C)). The section that replaced § 212(c) does
not authorize the Attorney General to grant relief to aliens who have been
convicted of an aggravated felony. See 8 U.S.C. § 1229b. Shortly after AEDPA
went into effect, the Attorney General ruled that § 440(d) was effective
immediately and therefore applied retroactively to aliens in removal proceedings.
3
See In re Soriano, 21 I & N Dec. 516, 519 (1996). The Attorney General ruled,
however, that the amendments did not apply retroactively to aliens who had
already submitted applications for relief under § 212(c). Id. at 519-21.
In INS v. St. Cyr, the Supreme Court considered the effect of these
amendments on aliens who had pleaded guilty to deportable crimes before their
effective dates. 533 U.S. at 292–93. 1 Enrico St. Cyr pleaded guilty to a
deportable offense in 1996. Because he had accrued over seven years of lawful
permanent residence, he was eligible to apply for discretionary relief under §
212(c) at the time of his plea. Congress passed AEDPA before his removal
hearing began, however, and he was not permitted to apply. Id. In his habeas
petition, St. Cyr argued that AEDPA did not affect his rights under § 212(c)
because he entered his guilty plea before it took effect. Id. at 293. The Court
found that AEDPA did not include a sufficiently clear statement of intent to apply
the amendments retroactively; therefore, the statute could not be construed to
have any retroactive effect. See id. at 326. The Court agreed with Mr. St. Cyr
that the denial of his right to apply for relief from deportation would give
retroactive effect to the 1996 amendments. The Court therefore held that Ҥ
212(c) relief remains available for aliens, like respondent, whose convictions
1
The Court characterized the issue as “the impact of the amendments on
conduct that occurred before their enactment and on the availability of
discretionary relief from deportation.” St. Cyr, 533 U.S. at 292–93.
4
were obtained through plea agreements and who, notwithstanding those
convictions, would have been eligible for § 212(c) relief at the time of their plea
under the law then in effect.” St. Cyr, 533 U.S. at 326.
Joselito Sandoval, a native and citizen of El Salvador, came to the United
States in 1986 and became a lawful permanent resident on December 1, 1990. In
1993, Mr. Sandoval pleaded guilty to two counts of burglary. The court
sentenced him to seven years of imprisonment, with seven years suspended, and
placed him on probation. In January 1994, he pleaded guilty to driving while
intoxicated. Because this offense violated his probation, the court revoked his
probation and sentenced him to five years of imprisonment. He was released after
approximately three years and delivered into the custody of the Immigration and
Naturalization Service. 2
The INS commenced removal proceedings against Mr. Sandoval on August
19, 1997. Although the INS identified the burglary convictions as the grounds for
removal, he had accumulated five DWI convictions and one theft conviction by
the time of his removal hearing on September 11, 1997. At his hearing, Mr.
Sandoval attempted to apply for a waiver of inadmissibility under § 212(c). In an
2
On March 1, 2003, the Immigration and Naturalization Service ceased to
exist as an independent agency within the Department of Justice, and its functions
were transferred to the Department of Homeland Security. Homeland Security
Act, Pub. L. 107-296 Sec. 471, 116 Stat. 2135 (Nov. 25, 2002), 6 U.S.C. § 291.
5
oral ruling, the Immigration Judge pretermitted his application, finding that
AEDPA § 440(d) barred him from applying. The Board of Immigration Appeals
affirmed the Immigration Judge’s ruling, citing AEDPA § 440(d) and IIRIRA’s
specific repeal of § 212(c). Mr. Sandoval appealed the BIA’s decision, but the
Fifth Circuit dismissed for lack of jurisdiction based on IIRIRA’s jurisdiction-
stripping provisions. See 8 U.S.C. § 1252(a)(2)(C). The INS removed him to El
Salvador on July 30, 1999.
Mr. Sandoval returned to the United States in 2002, crossing the U.S.-
Mexico border without inspection. Federal authorities discovered Mr. Sandoval
in the Cache County Jail in Logan, Utah on September 16, 2002, and charged him
with illegal reentry by a removed alien in violation of 8 U.S.C. § 1326. After
extensive questioning by the district court, he entered a guilty plea on January 3,
2003. As part of his plea agreement, he acknowledged that his decision to plead
guilty was made knowingly, voluntarily, and with the advice of counsel. He also
agreed not to collaterally attack his prior order of removal.
At the beginning of his sentencing hearing on April 24, 2003, Mr. Sandoval
submitted a Motion to Withdraw his guilty plea. He argued that his counsel failed
to inform him of his right to collaterally attack the underlying removal order. The
district court continued the sentencing hearing and requested briefing from both
parties. In support of his motion, he argued that the Immigration Judge’s refusal
6
to allow him to seek discretionary relief from removal under § 212(c) violated his
right to a fair hearing, permitting him to collaterally attack the proceedings under
8 U.S.C. § 1326(d).
The district court denied Mr. Sandoval’s motion. The court recognized that
INS v. St. Cyr, 533 U.S. 289 (2001), preserved the right to apply for discretionary
relief for a certain class of deportable aliens. It held, however, that the residual
right recognized by St. Cyr was limited to aliens who were eligible to apply for §
212(c) relief on the date of their plea. Because Mr. Sandoval had not yet
accumulated seven years of lawful permanent residence, he was not eligible to
apply for relief on the date of his plea. The district court therefore found that his
right to apply for discretionary relief did not survive AEDPA and IIRIRA and that
he failed to present a fair and just reason for withdrawal of his plea. At the
sentencing hearing on June 24, 2003, the court sentenced Mr. Sandoval to 70
months imprisonment and 36 months supervised release. He now appeals the
denial of his Motion to Withdraw.
II.
We review the district court’s denial of the Motion to Withdraw for abuse
of discretion. See United States v. Siedlik, 231 F.3d 744, 748 (10th Cir. 2000).
The district court’s ruling on the alleged due process defects in the underlying
immigration proceeding is a mixed question of law and fact subject to de novo
7
review. See United States v. Rangel DeAguilar, 308 F.3d 1134, 1137 (10th Cir.
2002).
III.
A.
Although a defendant does not have an absolute right to withdraw a guilty
plea, see, e.g., Barker v. United States, 579 F.2d 1219, 1223 (10th Cir. 1978), the
court should view a motion to withdraw with favor, granting the defendant “a
great deal of latitude.” United States v. Rhodes, 913 F.2d 839, 845 (10th Cir.
1990) (quoting United States v. Hickok, 907 F.2d 983, 986 (10th Cir. 1990)). The
ultimate decision lies within the trial court’s discretion, however, and we will not
reverse unless the trial court acted “unjustly or unfairly.” Siedlik, 231 F.3d at 748
(quoting United States v. Kramer, 168 F.3d 1196, 1202 (10th Cir. 1999)).
After the court accepts a plea, but before it imposes a sentence, the
defendant may withdraw a plea of guilty if he shows a “fair and just reason for
the withdrawal.” Fed. R. Crim. P. 11(d)(2)(B). This Court determines whether
the defendant has shown a fair and just reason for withdrawal with reference to
the following factors:
(1) whether the defendant has asserted his innocence; (2) whether
withdrawal would prejudice the government; (3) whether the
defendant delayed in filing his motion, and if so, the reason for the
delay; (4) whether withdrawal would substantially inconvenience the
court; (5) whether close assistance of counsel was available to the
defendant; (6) whether the plea was knowing and voluntary; and (7)
8
whether the withdrawal would waste judicial resources.
Rhodes, 913 F.2d at 845 (quoting Hickok, 907 F.2d at 985 n.2). Mr. Sandoval
maintains that his collateral attack on the prior removal proceeding constitutes a
fair and just reason for withdrawal of his guilty plea.
The Government maintains that Mr. Sandoval fails to present a fair and just
reason for withdrawal of his plea regardless of his right to collaterally attack the
removal proceeding. The Government argues that he knowingly and voluntarily
entered his plea while represented by counsel, that he agreed not to collaterally
attack his order of removal, and that his delayed attempt to withdraw the plea
caused inconvenience to the court and to the government. Most importantly, the
government argues, Mr. Sandoval does not assert his innocence; he acknowledges
that he returned to the United States after removal without the permission of the
Attorney General.
Whether the district court abused its discretion by denying Mr. Sandoval’s
motion to withdraw his guilty plea depends upon the outcome of his collateral
attack on the underlying removal proceedings. Although he does not label it a
claim of innocence, his collateral attack is a similar assertion. If he shows that
his removal hearing violated his due process rights, he cannot be lawfully
convicted of illegal reentry. With respect to the government’s claims of
inconvenience, a successful defense necessarily results in some amount of lost
9
time. But Mr. Sandoval’s attempt to withdraw his plea is not a delay tactic or an
attempt to avoid a harsh sentence. Cf. United States v. Elias, 937 F.2d 1514,
1520 (10th Cir. 1991) (“A defendant’s dissatisfaction with the length of his
sentence generally is insufficient reason to withdraw a plea.”). He does not
merely seek a better deal from the government, and he moved to withdraw his
plea before sentencing. His due process challenge to the deportation proceeding
underlying the charge against him, if valid, qualifies as a fair and just reason for
withdrawal.
B.
An alien who enters the United States after his removal for the commission
of an aggravated felony commits a criminal offense punishable by up to twenty
years of imprisonment. 8 U.S.C. § 1326(b)(2). Congress has imposed specific
limitations on an alien’s right to collaterally attack the deportation order
underlying a charge of illegal reentry. To succeed in a collateral attack, an alien
must show 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.
10
Id. § 1326(d). 3 To show that the underlying proceeding was fundamentally unfair,
Mr. Sandoval must show that he was prejudiced. See United States v. Aranda-
Hernandez, 95 F.3d 977, 980 (10th Cir. 1996).
The Government concedes that Mr. Sandoval exhausted his administrative
remedies, but it maintains that the Immigration Judge correctly denied his
application because AEDPA and IIRIRA eliminated his right to apply for
discretionary relief. Even if he retained the right to apply, the Government
maintains that the right was not protected by due process; therefore, the
Immigration Judge’s denial of his attempt to apply for discretionary relief could
not render the proceedings fundamentally unfair. Finally, the Government
contends that the Immigration Judge’s denial of his application did not prejudice
Mr. Sandoval because there was no reasonable likelihood of relief. Because we
agree with the government that Mr. Sandoval cannot show prejudice, we conclude
that his collateral attack on the deportation proceeding must fail, and we need not
reach the other issues raised.
The defendant bears the burden of proving prejudice. United States v.
3
Congress passed § 1326(d) in response to United States v.
Mendoza-Lopez, 481 U.S. 828, 837-38 (1987), which held that “where a
determination made in an administrative proceeding is to play a critical role in the
subsequent imposition of a criminal sanction, there must be some meaningful
review of the administrative proceeding.” We have held that § 1396(d) is
consistent with the constitutional standard announced in Mendoza-Lopez. United
States v. Wittgenstein, 163 F.3d 1164, 1170 (10th Cir. 1998).
11
Aguirre-Tello, 353 F.3d 1199, 1204 (10th Cir. 2004) (en banc). In Aguirre-Tello,
we held that in order to demonstrate prejudice, an alien must show a “reasonable
likelihood that, but for the errors complained of, he would not have been
deported.” Id. at 1208 (quoting United States v. Calderon-Pena, 339 F.3d 320,
324 (5th Cir. 2003)). The collateral attack in Aguirre-Tello was based on the
Immigration Judge’s failure to advise an alien of his right to apply for
discretionary relief. We held that, even if Mr. Aguirre-Tello had a constitutional
right to be informed of his eligibility for discretionary relief, he failed to show
prejudice. See Aguirre-Tello, 353 F.3d at 1210.
We based our decision in Aguirre-Tello on two findings. First, we found
no reasonable likelihood that the defendant would have applied for a waiver even
if the Immigration Judge had explained his rights flawlessly. Id. at 1209.
Second, we held that the defendant failed to show a reasonable likelihood that the
waiver would have been granted had he applied. The defendant presented some
favorable circumstances: his parents were legal permanent residents, he had lived
in the United States since he was four (though legally only since he was seventeen
or eighteen), and he had no prior criminal record. Considering the fact that he
had recently been convicted of attempted murder, however, we found no
reasonable likelihood that the Attorney General would have selected the
defendant for relief from among the large number of eligible aliens. Id.
12
The Fifth Circuit reached a similar conclusion in United States v. Mendoza-
Mata, 322 F.3d 829 (5th Cir. 2003). Mr. Mendoza-Mata pleaded guilty to a
charge of illegal reentry by a removed alien. Id. After he entered his guilty plea,
but before his sentencing hearing, the Supreme Court decided INS v. St. Cyr, 533
U.S. 289 (2001). Mr. Mendoza-Mata moved to withdraw his guilty plea and
dismiss the indictment, arguing that the Immigration Judge’s denial of his
application for discretionary relief rendered the removal proceeding
fundamentally unfair. The district court denied his motion.
The Fifth Circuit affirmed, finding that Mr. Mendoza-Mata failed to
establish prejudice under the reasonable likelihood standard. Mr. Mendoza-Mata
argued that his long presence in the United States and his parents’ status as lawful
permanent residents made it likely that the Attorney General would have granted
him relief from deportation. He also relied on St. Cyr’s statement that a
substantial percentage of aliens received discretionary relief. Id. at 833 (citing St.
Cyr, 533 U.S. at 296). The Government argued that Mendoza-Mata’s substantial
criminal record—convictions for cocaine possession, criminal trespass, indecent
exposure, theft, and driving with a suspended license, as well as charges of child
recklessness and criminal mischief—would have precluded relief. Id. Based on
his extensive criminal history, the court found no reasonable likelihood that
Mendoza-Mata would have been granted relief. Because he could not show
13
prejudice, his collateral attack failed. Id. at 834.
We also look to the factors developed by the BIA to determine whether a
deportable alien was entitled to § 212(c) relief. These included the gravity of the
offense, evidence of rehabilitation or recidivism, duration of residence, family ties
in the United States, service in the armed forces, and evidence of bad character.
See St. Cyr, 533 U.S. at 296 n.5; Matter of Marin, 16 I & N Dec. 581 (1978)
(listing as adverse factors “the existence of a criminal record and, if so, its nature,
recency, and seriousness, and the presence of other evidence indicative of a
respondent's bad character or undesirability as a permanent resident of this
country”).
Mr. Sandoval argues that the equitable and humanitarian factors in his case
outweigh the negative factors, raising a reasonable likelihood that the Attorney
General would have granted him relief from deportation had he been permitted to
apply. We disagree. Mr. Sandoval presents some positive factors. His son and
common-law wife are both permanent residents of the United States, and he
contributed to their support while he was a resident, at least during the time he
was able to work. But the negative factors are substantial. During his time in the
United States, Mr. Sandoval committed two burglaries, one theft, and at least
three DWIs. 4 Although these individual crimes are not as serious as Mr. Aguirre-
4
In his statement of facts to the district court and his opening brief on
(continued...)
14
Tello’s attempted murder, he had compiled this extensive criminal record in
approximately six years of residence.
Mr. Sandoval argues that a “substantial percentage” of applications for
relief—51.5%, to be precise—were granted between 1989 and 1995. See St. Cyr,
533 U.S. at 296 n.5. The district court in Aguirre-Tello relied upon similar
statistics, but we noted these percentages failed to show “what proportion of those
successful waiver applicants were convicted of serious violent felonies . . . .
Without any indication that the successful applicants were similarly situated . . .
the conclusion that he had at least a 50% chance of receiving a discretionary
waiver is pure speculation, if not actually misleading.” Aguirre-Tello, 353 F.3d at
1210. Like Mr. Aguirre-Tello, Mr. Sandoval fails to provide any indication of the
likelihood of relief for aliens with similar criminal histories.
Even if we were to accept Mr. Sandoval’s statistics, he must show some
reason why he would have ranked among the slight preponderance of aliens who
secured discretionary relief. Given the sheer number of Mr. Sandoval’s
convictions, as well as the evident pattern of DWI and property offenses, we find
it extremely difficult to believe that Mr. Sandoval’s family connections would
4
(...continued)
appeal, Mr. Sandoval states that he had been convicted of three DWI offenses at
the time of his removal hearing. Opening Brief 4; R. Supp. Vol. I, Doc. 24, 2.
The Government claims that Mr. Sandoval was convicted of five DWI offenses
between 1989 and 1995. Appellee’s Brief 2 n.1.
15
have outweighed his criminal record. Mr. Sandoval was not reasonably likely to
receive a discretionary waiver of deportation.
With respect to the prejudice issue, Mr. Sandoval requests that we remand
the case for an evidentiary hearing. Generally speaking, an evidentiary hearing is
not required unless the requesting party shows that he will produce relevant
evidence. For example, a motion to suppress “must raise factual allegations that
are sufficiently definite, specific, detailed, and nonconjectural to enable the court
to conclude that contested issues of fact . . . are an issue.” United States v.
Barajas-Chavez, 358 F.3d 1263, 1266 (10th Cir. 2004) (quoting United States v.
Chavez-Marquez, 66 F.3d 259, 261 (10th Cir. 1995) (internal quotations
omitted)). Similarly, when the reliability of scientific evidence is disputed, we
have held that the district court “must hold an evidentiary hearing unless the
proffer on its face is insufficient to raise a material issue of fact.” United States
v. Call, 129 F.3d 1402, 1407 (10th Cir. 1997) (citing Franks v. Delaware, 438
U.S. 154, 171–72 (1978)). Mr. Sandoval made a proffer of evidence to the
district court in support of his prejudice argument. Because we accept Mr.
Sandoval’s proffered facts as true, there is no need for an evidentiary hearing. 5
5
Mr. Sandoval’s proffer consisted largely of evidence related to his
eligibility for discretionary relief, not the likelihood that it would be granted. This
opinion recounts the elements of his proffer that are relevant to the issue of
prejudice.
16
IV.
Because it is not reasonably likely that the Attorney General would have
granted Mr. Sandoval’s request for a waiver of deportation, he cannot show that
the Immigration Judge’s alleged error caused prejudice. Because the collateral
attack on his deportation must fail, he does not present a fair and just reason for
the withdrawal of his guilty plea, and the district court did not abuse its discretion
in denying his motion to withdraw his plea. We therefore AFFIRM.
17