United States Court of Appeals
For the First Circuit
No. 04-1592
UNITED STATES OF AMERICA,
Appellee,
v.
DARIO DELEON, a/k/a RAFAEL GARCIA,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Patti B. Saris, U.S. District Judge]
Before
Selya, Lynch, and Lipez, Circuit Judges.
Roberto M. Braceras, with whom Christine M. Genaitis and
Goodwin Procter LLP were on brief, for appellant.
Randall E. Kromm, Assistant United States Attorney, with whom
Michael J. Sullivan, United States Attorney, was on brief, for
appellee.
April 7, 2006
LYNCH, Circuit Judge. It is a crime for an alien to re-
enter the country after he has been deported, unless he has the
express permission of the Attorney General of the United States (or
unless such permission is unnecessary in his case for other
reasons). 8 U.S.C. § 1326(a). The usual sentence for the crime is
a term in prison, followed by deportation.
Somewhat unusually in the criminal law, there is an
exception provided by statute, id. § 1326(d), for aliens who can
prove that the original deportation order was based on
administrative proceedings which were fundamentally unfair.
Subsection 1326(d) codifies these due process concerns, which were
originally set forth in United States v. Mendoza-Lopez, 481 U.S.
828 (1987). See United States v. Luna, 436 F.3d 312, 317 (1st Cir.
2006). The collateral attack on the deportation order pursuant to
§ 1326(d) requires that the alien make three showings: that he has
exhausted administrative remedies, that he was improperly deprived
of the opportunity for judicial review, and that the deportation
order was fundamentally unfair.
Rafael Garcia was convicted after a jury trial of the
crime of illegal re-entry and was sentenced on April 29, 2004 to 33
months' imprisonment and two years of supervised release; he was
released from prison on September 2, 2005, and was in immigration
custody awaiting deportation as of the close of briefing in this
appeal.
-2-
His appeal turns largely on attacking rulings by the
district court denying his motion to dismiss the indictment under
§ 1326(d) because he had not met the three criteria for a
successful collateral attack, and denying dismissal on statute of
limitations grounds. He challenges jury findings that the criminal
proceedings were brought within the five-year statute of
limitations and that he re-entered the country without the express
consent of the Attorney General. Although he has served his term
of imprisonment, will be deported,1 and cannot re-enter the United
States legally, he also attacks his sentence of 33 months'
imprisonment plus supervised release. Finally, and with some
cause, he complains about the delay of more than one year before
the district court provided him a transcript for appeal.
The one fact that permeates the analysis in this case,
and that affects many of the issues, is that at the time of his
original 1995 conviction for sale of crack cocaine and consequent
deportation, Garcia gave the false name of Dario DeLeon. He chose
to hide from the Immigration and Naturalization Service (INS)2 both
1
In 1996, Congress replaced the statutory term "deportation" with
"removal." See Saint Fort v. Ashcroft, 329 F.3d 191, 197 (1st Cir.
2003). For the sake of consistency, we use the term "deportation"
throughout this opinion.
2
On March 1, 2003, the INS ceased to exist and its principal
functions were transferred to the Bureau of Immigration and Customs
Enforcement in the Department of Homeland Security. See Homeland
Security Act of 2002, Pub. L. No. 107-296, § 471, 116 Stat. 2135,
2205 (codified at 6 U.S.C. § 291(a)). We refer to the agency as
the INS throughout.
-3-
his true identity and the fact that he had a green card in his true
name (Rafael Garcia). Indeed, he asked for a prompt deportation
and took no appeal. The district court found as a matter of fact
that this was a deliberate scheme of deception on his part so that
he could illegally re-enter the country by using his green card and
his real name. This is exactly what he did a mere two months after
his deportation; he then lived in the United States for nearly
eight years as Rafael Garcia. In March 2003, the government
learned for the first time that Rafael Garcia was the same person
as the deported DeLeon and started these proceedings.
We affirm Garcia's conviction and sentence in all
respects and note these key points in our holdings. First, in
performing the collateral attack analysis under § 1326(d), the
court ordinarily should address the initial test of exhaustion of
administrative remedies before going on to the other two tests.
Second, we address the situation where an alien claims that the
statute of limitations applicable to § 1326 prosecutions has run
but the government's lack of knowledge of the alien's presence is
a result of the alien's misrepresentations as to his identity.
Third, we clarify and reinforce that a defendant who has been
delayed in resolution of his appeal by delay in preparation of the
trial transcript cannot establish a violation of due process absent
a showing of prejudice.
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I.
The following facts are undisputed except where otherwise
noted.
A. Garcia's Initial Criminal Conviction and Deportation
Garcia, a native of the Dominican Republic, came to
Puerto Rico in 1981 or 1982, when he was approximately twelve years
old. He obtained temporary permanent resident status in 1987 and
lawful permanent resident status in 1990. He later moved to
Massachusetts.
In late February 1995, Garcia was arrested in Quincy,
Massachusetts and charged with, among other things, selling crack
cocaine to undercover officers. Garcia, who was carrying no
identification, told the police his name was Dario DeLeon. He also
gave a false birth date and lied about his father's name.
Garcia, who said he spoke no English, appeared at least
twice in Quincy District Court, accompanied both times by an
attorney and at least once by an interpreter. According to a
notation in the court records, Garcia was "[a]dvised of right to
counsel" and "[a]dvised of alien rights." He never told the judge
or anyone else his real name. On March 28, still under the name
DeLeon, Garcia entered a plea to the drug charge3 and was sentenced
to time served, thirty days' incarceration.
3
The district court found that Garcia pled nolo contendere, while
the government says he pled guilty. The difference is immaterial
to his appeal.
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Garcia was then transferred to the custody of the INS.
There he again identified himself as DeLeon and consistently denied
having legal status. He denied having a visa or a Social Security
number and claimed to be unemployed.
The INS Order to Show Cause issued to Garcia (under the
name of DeLeon), which was written in both English and Spanish,
informed him, among other things, that he could "seek an attorney
or representative, if [he] desire[d] to be represented." It also
informed him that if he was not satisfied with the eventual
decision of the Immigration Judge (IJ), he had the right to appeal.
Garcia signed a form (using the name DeLeon) which stated that the
Order to Show Cause had been read to him in Spanish. Garcia also
signed (as DeLeon) a form that stated, in Spanish, that he was "not
a citizen of the United States," that he "d[id] not wish to apply
for relief from deportation," and that he "want[ed] to be deported
as soon as possible." The form further stated: "This request is
completely voluntary. I have not been coerced, threatened, or
enticed in any way . . . ."
Prior to his appearance before the IJ, Garcia was
provided with a "Notice of Rights" in Spanish. The notice had two
relevant sections. The first, entitled "Right to be Represented by
an Attorney or Representative," stated:
If you have any questions regarding any of
your rights you can speak with an attorney or
representative who can explain your rights,
including any relief that may be available to
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you from deportation. The officer who gave
you this notice will give you a list of
organizations that can provide legal
information. Representatives from these
organizations will speak to you for free or
for a small fee, and some of them might speak
your language. . . . You may contact a lawyer
or other legal representative at this time or
at any other time prior to your departure from
the United States.
The second section, entitled "Right to a Hearing Before an
Immigration Judge," stated in relevant part:
If you do not want to return to your country,
you have a right to a hearing before an
immigration judge, who will determine whether
you can remain in the United States. If you
request a hearing, you may be represented at
the hearing by a lawyer or other legal
representative at your own expense. If you
cannot afford to pay a lawyer, you may contact
an organization on the list of free legal
services. For example, if you are married to
a U.S. citizen or permanent resident, or have
lived in the U.S. for seven years or longer,
and have not been convicted of a serious
crime, you may be eligible for relief from
deportation.
(emphasis in the original). Garcia signed the bottom of the form
(as DeLeon), indicating he had read it.
Garcia also received, as part of the Order to Show Cause,
a page of written information entitled "Notice of Rights and
Consequences." It stated, in both English and Spanish: "You will
be given a list of organizations, attorneys and other persons who
have indicated their availability to represent aliens in these
proceedings. Some of these persons may represent you free of
charge or for a nominal fee." It noted that hearings before the IJ
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were typically scheduled no sooner than fourteen days after the
issuance of the Order to Show Cause "to allow you to seek an
attorney or representative, if you desire to be represented."
On April 26, 1995, Garcia appeared before an IJ in
Oakdale, Louisiana. A court interpreter was present. The
following colloquy ensued:
IJ: Mr. DeLeon, sir, this is your first
appearance in my court, Immigration Court. As
such, you're entitled to delaying your case,
if you wish, to better prepare your case or to
acquire an attorney or we may go forward
today, whichever you desire.
Garcia: I cannot afford an attorney. I would
like to -- I would like to ask for
deportation.
IJ: Do you understand the nature of
Immigration Court, sir?
Garcia: Yes.
At that point Garcia took an oath to testify truthfully. The
colloquy then continued:
IJ: Sir, do you understand that you have the
right to have an attorney represent you at no
expense to the government?
Garcia: Yes.
. . . .
IJ: And you understand, sir, that you have the
right to appeal any decision of this court to
a higher court in Washington, DC, and you do
that through the Federal Court system of this
country?
Garcia: Yes.
-8-
IJ: Sir, do you acknowledge previous receipt
of the Form 6618, the legal aid sheet . . . as
well as your criminal conviction records?
Garcia: Yes.
Later, Garcia stated (still under oath) that he was not
a U.S. citizen or national and that he entered the United States in
1990 without inspection. The IJ found Garcia deportable. The IJ
asked the government attorney if he was "aware of any relief" from
deportation, to which the government replied: "No, Your Honor."
The IJ ordered Garcia deported to the Dominican Republic. He asked
Garcia: "Do you wish to accept that decision or is there an
appeal?" Garcia replied: "I accept it."
B. Garcia's Re-entry and Second Conviction
Soon after Garcia's June 1995 deportation, his sister
mailed his green card and passport from Massachusetts to him in the
Dominican Republic. Less than two months later, in late July 1995,
Garcia used these documents to re-enter the United States via
Puerto Rico under his real name.4 He did not inform the
immigration officials that he had been deported as Dario DeLeon.
An immigration official checked Garcia's permanent resident card
and then admitted him. Pursuant to standard practice at that time,
4
Garcia states in his briefs that he re-entered the country in
early 1996, but immigration records show that the date was July 29,
1995. The difference is immaterial to all questions on appeal,
including the statute of limitations question. We refer to the re-
entry date as 1995.
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he did not take Garcia's fingerprints, nor did he check the prints
already on file for Garcia against any other database.
Garcia eventually moved back to Massachusetts, where he
lived under his real name for several years. In March 2003, Garcia
argued with two people at a store in Massachusetts. After he left
the store, he noticed that the two were following his car. He
decided to go to a police station. The police asked him for
identification, which he provided (under his real name). The
police then arrested him on an outstanding warrant for operating an
unregistered vehicle. Garcia was fingerprinted, and the prints
were sent to the FBI for a check of the Bureau's database; at that
point, authorities realized that Garcia and "DeLeon" were one and
the same.
Garcia was charged with the federal crime of illegal re-
entry in violation of 8 U.S.C. § 1326. Before trial, he moved to
dismiss the indictment under the theories that (1) the 1995
deportation proceeding violated his right to due process and was
invalid under § 1326(d), and (2) the indictment was untimely. The
district court rejected these contentions in a detailed order,
discussed below.
After a four-day jury trial, Garcia was convicted. On
April 29, 2004, the district court sentenced him to 33 months'
imprisonment (with credit for time served) and 24 months of
supervised release. Garcia completed his term of imprisonment on
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September 2, 2005, during the pendency of this appeal, and was
transferred to INS custody to await deportation.
II.
Garcia's primary argument on appeal is that the district
court erred when it found that he failed to meet the collateral
attack standard under § 1326(d) and refused to dismiss the
indictment.
Subsection 1326(d) bars any collateral challenge to the
underlying deportation order unless the alien demonstrates the
following:
(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.
8 U.S.C. § 1326(d). Here, the district court found that Garcia had
not met the third ground, in part because he could not show
fundamental unfairness, as required under § 1326(d)(3). See Luna,
436 F.3d at 316. We review the subsidiary factual findings for
clear error and the ultimate mixed conclusion that there was no
fundamental unfairness de novo. See id. at 316-17.
Garcia argued before the district court that he was
denied the right to counsel during the 1995 deportation proceeding,
and therefore that he met prongs (2) and (3) and that he was
excused from meeting prong (1). He argued that he was illiterate
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in both English and Spanish in 1995, and so the notices informing
him of his rights meant little. He also contended that when the IJ
told him he could obtain counsel and he replied, "I cannot afford
an attorney," the IJ was obligated to pursue the matter. He stated
that he never received the legal aid sheet listing pro bono service
providers, and that his affirmative answer when the IJ asked him if
he had received the sheet was simply a product of his confusion.
Garcia also argued that he met the requirements of
§ 1326(d) because he did not know he was eligible for relief from
deportation. He contended that as a lawful permanent resident, he
would have been eligible for discretionary relief under former
§§ 212(c) and 212(h) of the Immigration and Nationality Act; he
said the government led him to believe he was not eligible for
relief, and that the IJ deprived him of his right to be informed
about potential relief by failing to mention it.
The district court rejected Garcia's collateral attack,
first in a pretrial opinion and order and again after the verdict.
The court skipped over the exhaustion and judicial review
requirements of § 1326(d)(1) and (d)(2) and instead held that
Garcia could not show, pursuant to § 1326(d)(3), that entry of the
1995 deportation order was fundamentally unfair. This was so for
several reasons. As to the right to be informed about
discretionary relief, the district court found that the IJ's
failure to mention it was entirely Garcia's fault: Garcia had lied
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to the IJ and INS officials from the beginning, giving them a false
name and telling them he had no legal status. Under the
circumstances, the court found, the IJ had no duty to tell Garcia
about discretionary relief, because the IJ had no way to know
Garcia was eligible.5
As to the right to counsel, the court found that Garcia
had been "notified twice in writing of his right to
representation," that the IJ had informed him of his right to
obtain counsel yet he had declined, and that he had told the IJ he
received the legal aid sheet. In the post-verdict order, the court
explicitly found not credible Garcia's testimony during a pretrial
motion hearing that he had never received the legal aid sheet, and
added that even if he had not received it, that would not render
the proceedings unfair, because he told the IJ he had. As to
Garcia's purported illiteracy, the district court wrote that it was
"certainly relevant to a due process inquiry" but that "it does not
excuse [Garcia's] failure to notify the immigration judge . . .
that he wanted help in finding an attorney or that he needed help
in reading a list of lawyers."
Finally, and importantly, the district court concluded
that Garcia could not in any event demonstrate prejudice, as
5
The court rejected Garcia's argument that the IJ and other INS
officials should have known, or did know, that Garcia was lying
about his identity and status. It found there was "no evidence in
the record to support an inference of bad faith or even
negligence."
-13-
required under § 1326(d)(3), even if he had been denied access to
a list of available counsel. This was because Garcia did not
intend to avail himself of counsel, but rather intended all along
to lie about his identity and be deported as quickly as possible so
that he could re-enter using his green card and real name. The
court found: "The totality of Defendant's actions and statements
indicates that he wanted his true identity and legal status
concealed, rather than trumpeted."
On appeal, Garcia presents the broad argument that at his
deportation hearing, "the government merely went through the
motions and failed to give meaning to [his] rights." He says this
is because the IJ "failed to determine whether Mr. Garcia wished to
be represented by counsel" and "failed to advise Mr. Garcia of his
right to pro bono self-obtained counsel." The brief also argues
that Garcia's rights were impinged because "the INS failed to
provide Mr. Garcia with a list of legal aid counsel, as it was
required to do, thus preventing Mr. Garcia from retaining counsel
who would have obtained § 212(c) relief from deportation."
These arguments are an attempt to ignore the district
court's findings of fact.6 The district court explicitly found
6
The brief, for example, entirely fails to inform us that the
district court found Garcia's use of the name DeLeon during the
original deportation to be a deliberate scheme by Garcia to enhance
his prospects for later entry. The brief also asserts, based on
Garcia's testimony, that he never received the legal aid sheet, and
fails to inform us of the district court's finding that that
testimony was not credible. Counsel are not free, on appeal, to
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that Garcia had been advised multiple times of his right to obtain
counsel during the immigration proceedings, that his testimony that
he never received the legal aid list was not credible, that he
never said he wanted a lawyer, and that he never requested time to
find a lawyer. The court also found that it was quite unlikely
Garcia wanted a lawyer; to further his scheme of fraudulent re-
entry, he wanted to be quickly deported under the false name.
Those factual findings required a finding that Garcia could
demonstrate neither prejudice nor fundamental unfairness. No
effort is made to show that the findings are clearly erroneous.
Nonetheless, we have given Garcia the benefit of
reviewing the district court's findings against the evidence, and
there was no error at all. The district court's ruling that the
third precondition for collateral attack was not met is
unassailable.
We add that ordinarily, the § 1326(d) analysis should
start with the first ground, which the district court skipped
over.7 Congress has mandated that "an alien may not challenge the
ignore the district court's findings and argue the facts de novo,
even if the ultimate conclusion of law drawn by the district court
from the facts is subject to de novo review.
7
While courts have some leeway in the structuring of opinions, it
is quite clear that Congress has, particularly in the immigration
laws, placed a premium on exhaustion of agency remedies. In many
cases, if there has been no such exhaustion by taking an appeal to
the Board of Immigration Appeals, a court would not consider the
petitioner's claims.
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validity of the deportation order" unless that alien "exhausted any
administrative remedies that may have been available to seek relief
against the order." 8 U.S.C. § 1326(d)(1) (emphasis added). It is
clear that appeal to the Board of Immigration Appeals (BIA) is such
an administrative remedy, and that failure to take such an appeal
constitutes a failure of exhaustion. See Sayyah v. Farquharson,
382 F.3d 20, 27 (1st Cir. 2004). It is also undisputed that Garcia
explicitly waived his right to appeal to the BIA when he asked to
be deported "as soon as possible" and subsequently told the IJ he
accepted the decision ordering him deported. Barring some
exception to the exhaustion requirement, therefore, Garcia may not
challenge the deportation order's validity.
Garcia argues that just such an exception exists. He
relies on cases from other courts which have concluded that the
§ 1326(d)(1) exhaustion requirement "cannot bar collateral review
of a deportation proceeding when the waiver of [the] right to an
administrative appeal did not comport with due process," United
States v. Muro-Inclan, 249 F.3d 1180, 1183 (9th Cir. 2001), and
therefore that "failure to exhaust administrative remedies bars
collateral review of a deportation proceeding under Section
1326(d)(1) . . . only where an alien's waiver of administrative
review was knowing and intelligent," United States v. Sosa, 387
F.3d 131, 136 (2d Cir. 2004); see also Muro-Inclan, 249 F.3d at
1183 (waiver must be "considered and intelligent" (internal
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quotation marks omitted) (quoting United States v. Arrieta, 224
F.3d 1076, 1079 (9th Cir. 2000))); United States v. Martinez-Rocha,
337 F.3d 566, 569 (6th Cir. 2003).
Whether or not this court would create such an exception
to the exhaustion requirement, a question on which we take no view,
the facts here preclude the argument. Garcia was told at least
twice -- once when the Order to Show Cause was read to him, and
again by the IJ -- that he had the right to appeal. He was asked
again by the IJ later in the proceeding whether he desired to
appeal. He stated that he did not; he also signed a form
indicating that he did not wish to contest deportation. Given this
record, Garcia's waiver was knowing and intelligent. See United
States v. Johnson, 391 F.3d 67, 75 (2d Cir. 2004) (finding knowing
waiver where the IJ "clearly advised" the alien of his right to
appeal); Martinez-Rocha, 337 F.3d at 569 (finding knowing waiver in
part because the alien signed a form, read to him in Spanish,
stating that he did not wish to contest the charges). Further, the
district court found on ample evidence that Garcia never had any
intention of appealing, because he wanted to be deported as quickly
as possible so that he could re-enter under his real name. See
Martinez-Rocha, 337 F.3d at 569 (finding of knowing waiver was
supported by an INS agent's testimony that the alien "had expressed
a desire to return to Mexico as soon as possible").
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Garcia argues that his waiver was not knowing and
intelligent because the IJ did not tell him he was eligible for
discretionary relief and the government attorney "affirmatively
informed [him] that he was not entitled to any discretionary
relief." Again, the argument depends on ignoring the district
court's factual findings. It was Garcia's lies about his identity
and his failure to disclose his green card status that hid his
potential eligibility from the government and the IJ.8 He gets no
reward for that. Cf. 8 C.F.R. § 1240.49(a) (stating in the context
of other forms of relief that the IJ "shall inform the respondent
of his or her apparent eligibility") (emphasis added).
In sum, Garcia knew precisely what he was doing when he
decided to forgo an appeal of his 1995 deportation order; if there
is an exception to the § 1326(d)(1) exhaustion requirement, he does
not fall within it. His challenge to the 1995 deportation order
fails.
III.
A. The Statute of Limitations
The crime of illegal re-entry is subject to a five-year
statute of limitations, 18 U.S.C. § 3282. The district court
denied Garcia's pretrial motion to dismiss the indictment on
8
In all events, as a factual matter, Garcia received and signed
at least one form telling him that aliens with various types of
status in the United States, such as those married to permanent
residents and those who had spent many years in the country, could
be eligible for relief.
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limitations grounds. The issue also was submitted to the jury,
which made a specific finding that the government had proved the
indictment was timely. We review the district court's pretrial
ruling de novo and the jury's finding for sufficiency of the
evidence. See United States v. Walsh, 928 F.2d 7, 12 (1st Cir.
1991) (holding that district court did not err as a matter of law
in refusing to dismiss an indictment where "a jury could reasonably
have concluded" on the evidence at trial that the limitations
period had not run).
"[A] deported alien who illegally reenters and remains in
the United States can violate [8 U.S.C. § 1326] at three different
points in time: when he 'enters, 'attempts to enter,' or when he
'is at any time found in' this country." United States v. Cuevas,
75 F.3d 778, 784 (1st Cir. 1996) (quoting 8 U.S.C. § 1326(a)(2)).
Where an alien is indicted under the "found in" prong, as Garcia
was here, the alien is deemed to have committed the offense at the
moment he was "found." Id. (citing United States v. Rodriguez, 26
F.3d 4, 8 (1st Cir. 1994)).
Garcia argues the government could have found out earlier
that he was illegally in the United States and that its lack of
diligence should be held against it. The argument is based on
language from other courts in factually distinct cases to the
effect that an alien is "found" for § 1326 purposes "when
immigration authorities could have, through the exercise of
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diligence typical of law enforcement authorities, discovered the
violation" -- in other words, when they had constructive knowledge
that the alien was in the country illegally. See United States v.
Gomez, 38 F.3d 1031, 1037 (8th Cir. 1994); see also United States
v. Herrera-Ordones, 190 F.3d 504, 510 (7th Cir. 1999). Garcia
argues that the jury was compelled to find that the government had
the requisite constructive knowledge as soon as he re-entered the
country, and so the limitations period ran several years before his
2003 indictment. This, he says, is because diligent immigration
authorities would have realized at the time of his 1995 re-entry
that he and "DeLeon" were the same person.
The district court, in considering Garcia's motion to
dismiss, accepted the existence of this constructive knowledge
theory for purposes of analysis. It examined pre-trial affidavits
and other evidence submitted by the government which stated that
immigration procedures in place in 1995 did not involve checking
the fingerprints of arriving green card holders like Garcia against
any database of criminals or of past deportees. The district court
found that based on this evidence, and on the fact that Garcia lied
about his identity during the deportation process, it could not say
as a matter of law that immigration officials exercising ordinary
diligence should have known at the time of Garcia's re-entry that
he previously had been deported.
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We approach the question differently. This court has
never adopted the theory that the government may be charged with
constructive knowledge of an alien's illegal re-entry for purposes
of § 1326, and there are certainly good arguments against the
theory in this context. We do not, however, resolve the broad
question of whether constructive knowledge can be attributed to the
government. We hold more narrowly that for statute of limitations
purposes in § 1326 prosecutions, there can be no finding of lack of
diligence where it is deception by the alien as to his identity
that has caused the government not to have knowledge of his
presence. To hold otherwise would be to reward deceit by the alien
and to encourage the withholding of information, and so the
corruption of the deportation process.9 Cf. United States v.
Mercedes, 287 F.3d 47, 55 (2d Cir. 2002) ("[I]t is difficult not to
find Mercedes's claim regarding the delay disingenuous when he was
the one who attempted to deceive law enforcement officials by
concealing his true identity"). In any event, the facts before the
district court prior to trial showed that the government could not,
in the ordinary course, have discovered the deception, and so there
would be no basis for a constructive knowledge claim even if one
were cognizable.
9
Garcia relies on Gomez, 38 F.3d 1031, for the conclusion that
the constructive knowledge rule should apply even where an alien's
deception prevented immigration officials from learning his true
identity. To the extent Gomez can be read to so hold, we reject
it.
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Finally, any claim that there was insufficient evidence
to support the jury's finding of timeliness fails. The government
introduced evidence at trial to the effect that it did not know
Garcia had illegally re-entered the country until he was arrested
in 2003; this evidence was uncontradicted. The jury had ample
basis to find that it was not a lack of diligence by the government
that resulted in the timing of the indictment in this case.
B. Consent to Re-enter
Garcia next argues the evidence was insufficient to
support the jury's conclusion that he lacked the Attorney General's
consent to re-enter the country. "In reviewing such a challenge,
we consider the record evidence (and any reasonable inferences
therefrom) as a whole and in the light most favorable to the
prosecution, asking whether the evidence would have permitted a
rational jury to find the defendants guilty of the crime charged
beyond a reasonable doubt." United States v. Downs-Moses, 329 F.3d
253, 261 (1st Cir. 2003). "'[T]he evidence may be entirely
circumstantial, and need not exclude every hypothesis of innocence
. . . .'" United States v. Meléndez-Torres, 420 F.3d 45, 49 (1st
Cir. 2005) (internal quotation marks omitted) (quoting United
States v. Scantleberry-Frank, 158 F.3d 612, 616 (1st Cir. 1998)).
To convict Garcia of violating 8 U.S.C. § 1326(a), the
jury must have found that the government proved beyond a reasonable
doubt that Garcia was an alien, that he had been deported, that he
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entered or attempted to enter or was later found in the United
States, and that he did so "without the express consent of the
Attorney General for such entry." Id. (citing Scantleberry-Frank,
158 F.3d at 616); see 8 U.S.C. § 1326(a). At trial, the government
presented evidence as to the "express consent" prong --
specifically, a Certificate of Nonexistence of Record stating that
no such consent appeared in the INS A-File10 on "Dario DeLeon."
Garcia argues that since the INS kept a separate A-File on "Rafael
Garcia," the jury could not convict absent evidence that no
indication of consent appeared in the Rafael Garcia file either.
Since the government produced no such evidence, he says, it failed
to carry its burden.
This argument is without merit. Garcia's own lies led to
his deportation under the name DeLeon. If he had requested
permission to re-enter after deportation, he would have had to do
so as DeLeon (otherwise the request would have made no sense to the
immigration authorities) and any such permission logically would be
in the "DeLeon" file. Further, as the district court found, the
evidence supports the conclusion that Garcia schemed to be deported
under a false name so he could immediately re-enter using his real
identity. A jury could reasonably infer that Garcia never would
have requested permission (under any name) to re-enter, since such
10
An INS A-File "records every contact an alien has with the
immigration service." Meléndez-Torres, 420 F.3d at 47.
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a request would have alerted the INS to his deception. In short,
the evidence is more than sufficient to sustain the jury verdict.
Garcia falls back to an argument that he in fact had
express permission to re-enter the country because he did so using
his green card, which was issued by the Attorney General and which
he says constitutes the requisite permission. As the district
court said: "Under defendant's interpretation of the statute, he
can lie about his identity . . . and then re-enter with impunity
using a green card under his real name. This would obviously
frustrate the statutory purpose of keeping previously-deported
aliens from reentering the country without the Attorney General's
'express' prior permission." Garcia had just been deported,
regardless of what name he was using at the time, and he therefore
needed the Attorney General's contemporaneous permission before he
could legally re-enter. 8 U.S.C. § 1326(a). If Garcia had been
deported under his real name, his green card likely would have been
revoked, and in any event obviously would not constitute such
permission.11 He can gain no advantage from having deceived the INS
about his identity.
11
Garcia cites a case, United States v. Idowu, 105 F.3d 728 (D.C.
Cir. 1997), for the proposition that even an invalid green card is
enough to constitute Attorney General consent. The Idowu court
held no such thing. It said only that the defendant alien might
not have needed consent at all because more than five years had
passed since his deportation; because the crucial question involved
passage of time, the court noted that the validity or invalidity of
his arrival documents was irrelevant to its analysis. Id. at 731.
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C. The Almendarez-Torres Issue
Garcia argues that his conviction must be vacated because
the district court did not submit to the jury the question of his
underlying 1995 drug conviction. He argues that the district court
was required to do so because Almendarez-Torres v. United States,
523 U.S. 224 (1998), in which the Supreme Court held that the prior
conviction is a mere sentencing factor for § 1326(b) purposes, id.
at 235, has been overruled by subsequent case law. He relies on
Justice Thomas' concurrence in Shepard v. United States, 125 S.Ct.
1254 (2005), which stated that in light of Apprendi v. New Jersey,
530 U.S. 466 (2000), and subsequent Sixth Amendment jurisprudence,
"a majority of the Court now recognizes that Almendarez-Torres was
wrongly decided." Shepard, 125 S.Ct. at 1264 (Thomas, J.,
concurring in part and concurring in the judgment).
As an initial matter, we note that Garcia seems to be
mixing apples and oranges in challenging his conviction on this
basis. The cases upon which he relies largely go to whether a
judge may consider a prior conviction for sentencing purposes when
that conviction has not been found by a jury beyond a reasonable
doubt. See id. ("Innumerable criminal defendants have been
unconstitutionally sentenced under the flawed rule of
Almendarez-Torres . . . .") (emphasis added). Perhaps Garcia is
making a sentencing argument.
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Either way, however, Garcia's argument fails. Garcia
stipulated to the prior conviction at trial: his counsel not only
affirmatively told the jury about the fact of a prior conviction
and agreed to the entry into evidence of a redacted record of the
conviction, but also argued prior to trial that "evidence of [the]
conviction is wholly irrelevant to [Garcia's] charged illegal
reentry offense and has the potential to prejudice Mr. Garcia
unfairly." Garcia has waived any argument that the jury needed to
find the fact of conviction beyond a reasonable doubt. See Blakely
v. Washington, 542 U.S. 296, 310 (2004) ("[A] defendant who stands
trial may consent to judicial factfinding as to sentence
enhancements, which may well be in his interest if relevant
evidence would prejudice him at trial."); see also United States v.
Glover, 413 F.3d 1206, 1208 (10th Cir. 2005) ("In regard to
sentencing, a defendant may waive his Sixth Amendment rights under
Apprendi and Blakely by stipulating to facts underlying sentence
enhancements.") (citing Blakely, 542 U.S. at 310).
Further, even had Garcia not waived the issue, his
precise argument has already been rejected by a panel of this
court. United States v. Ivery, 427 F.3d 69, 75 (1st Cir. 2005).
In Ivery, the court noted that the Supreme Court has taken care to
reaffirm the "prior conviction" exception of Almendarez-Torres in
all of its recent Sixth Amendment jurisprudence, and that even the
Shepard majority cautioned that it "is up to the future to show"
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whether Apprendi eventually will be extended to require proof of
prior convictions to a jury. Id. (internal quotation marks
omitted) (quoting Shepard, 125 S.Ct. at 1263 n.5). The Ivery panel
concluded: "It is not our place to anticipate the Supreme Court's
reconsideration of its prior rulings; thus Almendarez-Torres
remains binding law that we must apply until overruled by a
majority of the Supreme Court." Id. We in turn are bound by
Ivery's holding.
D. Booker Issue As to Garcia's Term of Supervised Release
Garcia has now served the imprisonment portion of his
sentence and is subject to a two-year term of supervised release,
but is in the hands of immigration authorities and awaiting
deportation, if he has not yet been deported. Nonetheless, in a
long footnote in his brief on appeal, Garcia says he is entitled to
be resentenced, presumably to alter the sentence of supervised
release.
Garcia was sentenced under the mandatory Guidelines
scheme in place prior to United States v. Booker, 543 U.S. 220
(2005). He concedes that his Booker claim was not preserved in the
district court, but says he meets the "reasonable probability"
standard this court requires under plain-error Booker review,
United States v. Antonakopoulos, 399 F.3d 68, 75 (1st Cir. 2005),
because the district judge sentenced him at the bottom of the
applicable Guidelines range and stated that his case was
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sympathetic. The government argues that we cannot reach the Booker
issue because it is moot.
It is well-settled that a convict's claim is not moot if
he has finished his prison term but still faces supervised release
or a restitution order, so long as those conditions give him "a
continuing stake in the outcome of a challenge" to the sentence.
United States v. Molak, 276 F.3d 45, 48 (1st Cir. 2002); see also
United States v. Prochner, 417 F.3d 54, 59 n.4 (1st Cir. 2005).
The government argues that the supervised release
sentencing issue is moot on these facts. The argument is that
Garcia, who is in immigration custody and facing imminent
deportation from the United States, will never be subject to the
supervised release portion of his sentence. The government argues
that the possibility that Garcia could one day return to the United
States does not change the analysis. This is because Garcia is
inadmissible as a result of his 1995 cocaine conviction, 8 U.S.C.
§ 1182(a)(2)(A)(i)(II), and ineligible for a waiver of
inadmissibility, id. § 1182(h)(2). Therefore, Garcia could only be
in the United States, and potentially subject to supervised
release, if he broke the law to get here; this will not suffice,
the government argues, because a stake in the outcome of a case
will not create standing if it is "contingent upon [the
defendant's] violating the law" in the future. Spencer v. Kemna,
523 U.S. 1, 15 (1998).
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There is some case law supporting the government's
theory. See Okereke v. United States, 307 F.3d 117, 121 (3d Cir.
2002) (finding alien's sentencing appeal moot where alien had been
removed and could not legally reenter, and resentencing "would not
provide [him] with the tangible benefit of reentry"); United States
v. Mercurris, 192 F.3d 290, 294 (2d Cir. 1999) (finding moot a
deported alien's claim that the district court erroneously deemed
his crimes "aggravated felonies" because the alien "ha[d] only a
quixotic chance of legally returning to the United States" and "the
possibility that his aggravated felon status could make a
difference to him . . . is too speculative to create an Article III
case or controversy"). Defendant has not, in response, identified
any practical impact on him of the Booker supervised release issue.
If there is one, it is not up to the appellate court to try to
guess what it is. Without adopting a general rule, we hold that
any Booker issue in this case is moot.
E. The Transcript Delay
A disturbing aspect of this case is the fourteen-month
period it took for the court reporter to produce the trial
transcripts for appeal. Unfortunately, this is a recurring problem
in some districts within the circuit, and not a new one. See,
e.g., United States v. Pratt, 645 F.2d 89, 91 (1st Cir. 1981)
(nine-month delay in preparing a transcript).
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Garcia filed a Notice of Appeal on April 30, 2004. On
June 8, 2004, this court ordered the district court's court
reporter to file, by August 9 of that year, transcripts of Garcia's
trial and related proceedings.
The period of time until the transcript was prepared was
a shared responsibility of this court, the district court, and
Garcia. The court reporter was granted several extensions, without
objection, which pushed the deadline back to November 1. When the
transcript was not prepared by that date, this court issued an
Order to Show Cause directing production of the transcripts by
November 22. Several more rounds of orders and extension requests
followed.
On August 11, 2005, some fourteen months after the Notice
of Appeal, Garcia first moved to compel production. This court
granted the motion, and the transcripts were finally filed on
August 19, 2005. Garcia says this delay violated his due process
right to a timely appeal, and that the remedy must be reversal of
his conviction. The prosecution, which is of course not actually
responsible for the transcript delay, is nonetheless deemed to be
responsible, as the government candidly admits.
The concern is where delay in the appeal due to a tardy
transcript may violate the due process rights of the defendant.
"[E]xtreme delay in the processing of an appeal may amount to a due
process violation, and delays caused by court reporters are
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attributable to the government for purposes of determining whether
a defendant has been deprived of due process . . . ." United
States v. Luciano-Mosquera, 63 F.3d 1142, 1158 (1st Cir. 1995)
(citing United States v. Wilson, 16 F.3d 1027, 1030 (9th Cir.
1994)). However, "mere delay, in and of itself will not give rise
to a due process infraction. The defendant must show prejudice."
Id.
Furthermore, as the Supreme Court has said in the context
of pre-indictment delay, even proof of actual prejudice does not
make a due process claim "automatically valid." United States v.
Lovasco, 431 U.S. 783, 789 (1977). The court "must consider the
reasons for the delay as well as the prejudice to the [defendant]."
Id. at 790. The showing of prejudice is therefore a threshold
requirement. See id.; see also Luciano-Mosquera, 63 F.3d at 1158.
The prejudice must be such as to render the proceedings
"fundamentally unfair." Lovasco, 431 U.S. at 796.
The question of what constitutes prejudice is one on
which the circuits have differing views. Garcia has, relying on
case law from elsewhere, argued that certain effects of delay
constitute prejudice. We reject the arguments. Based on what is
properly cognizable as prejudice, we hold that Garcia has not made
his threshold prejudice showing.
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i. Cognizable Forms of Prejudice
We have recognized two forms of possible prejudice. It
is possible for delay to so impair a defendant's ability to present
his appeal as to create prejudice to the appeal itself.
Luciano-Mosquera, 63 F.3d at 1158. It also is possible that even
where a defendant wins his appeal, the delay in preparing the
transcripts on appeal could have prejudiced his right to make his
case on retrial. Id.
We see no impairment of Garcia’s ability to present his
appeal. He was and has been present in this country and has had
access to counsel.12 When we look as well at the substance of the
arguments he has presented on appeal, the failure of those
arguments has not in any way been caused by the delay. Since he
has lost his appeal there can be no impairment of his rights on
retrial.
To the extent Garcia argues that any particular period -–
here, a one-year delay from the original due date of the transcript
12
According to his reply brief, Garcia was still awaiting
deportation as of December 29, 2005, six weeks prior to oral
argument. We do not know whether his deportation has been delayed
because of his appeal. We presume it has not, however, since
Garcia did not request a stay of deportation from this court, and
absent such a stay the government may deport an alien during the
pendency of an appeal. See Neverson v. Farquharson, 366 F.3d 32,
38 (1st Cir. 2004) ("The INS immediately took Neverson into custody
and prepared to deport him . . . . On Neverson's emergency motion,
this court issued a provisional stay . . . barring the INS from
deporting Neverson until we could hear and decide his case.").
Garcia suggests as much in his reply brief.
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–- per se amounts to a due process violation, we reject the
argument. This circuit's requirement is that the defendant must
show prejudice, and we will not presume prejudice from the length
of the delay. See Luciano-Mosquera, 63 F.3d at 1158; see also id.
at 1158 & n.8 (describing approximately two-year delay in
furnishing transcripts as "appalling" but rejecting defendant's
claim for lack of prejudice); Pratt, 645 F.2d at 91 (declining to
hold a nine-month delay unconstitutional, "at least in the absence
of exacerbating factors"). There can be no per se rules on the
length of delay because this court, in the exercise of its
supervisory authority, is bound by the rule that a showing of
prejudice is ordinarily needed for due process claims. See United
States v. Tucker, 8 F.3d 673, 676 (9th Cir. 1993) (en banc) ("[A]
federal court may not exercise its supervisory powers to reverse a
conviction absent a showing of prejudice.").
ii. Garcia's Other Arguments
Garcia also argues that he was prejudiced in ways which,
in our view, are simply not cognizable on a due process claim in
this context. Specifically, he argues that due to the delay, he
has suffered anxiety and "oppressive incarceration" during the
pendency of his appeal. He bases this argument on decisions by
other courts which have drawn an analogy between the right to a
timely appeal and the right to a speedy trial. See, e.g., United
States v. Hawkins, 78 F.3d 348, 350 (8th Cir. 1996); United States
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v. Mohawk, 20 F.3d 1480, 1486 (9th Cir. 1994); Rheuark v. Shaw, 628
F.2d 297, 303 (5th Cir. 1980). We reject the argument and differ
from these courts. We explain why.
A due process claim about delays on appeal is not the
same as a Sixth Amendment speedy trial claim. In Barker v. Wingo,
407 U.S. 514 (1972), a case under the Sixth Amendment, the Supreme
Court identified four criteria, of which prejudice is only one, to
determine when the right to a speedy trial is violated. Id. at
530. The Court held that it is possible to have a violation of the
speedy trial right without a specific showing of prejudice. Id. at
533. By contrast, there is no Sixth Amendment speedy trial claim
to be made as to appeals, with the possible exception, not involved
here, of interlocutory appeals. See United States v. Loud Hawk,
474 U.S. 302, 313-17 (1986); see also United States v. Smith, 94
F.3d 204, 206 (6th Cir. 1996) ("The speedy trial guarantee of the
Sixth Amendment applies only to proceedings in the trial court.").
The right of appeal is statutory, and the grant is subject to due
process requirements. Evitts v. Lucey, 469 U.S. 387, 393 (1985).
In Barker, three categories of potential prejudice were
identified: oppressive pretrial incarceration, anxiety and concern
of the accused, and the possibility that the accused's defense
might be impaired. 407 U.S. at 532. Those courts that have
accepted the analogy between pretrial delay and appellate delay
have adopted this inquiry almost whole cloth and looked for three
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kinds of potential prejudice from appellate delay: "(1) oppressive
incarceration pending appeal, (2) anxiety and concern of the
convicted party awaiting the outcome of the appeal, and (3)
impairment of the convicted person's grounds for appeal or of the
viability of his defense in case of retrial." Hawkins, 78 F.3d at
351 (internal quotation marks omitted) (quoting Tucker, 8 F.3d at
646); see also Rheuark, 628 F.2d at 303 n.8.
In our view, the due process issues caused by delay on
appeal are more limited than those resulting from delay in the
trial court. Cf. Ross v. Moffitt, 417 U.S. 600, 610 (1974)
(noting, in the context of due process requirements, that "there
are significant differences between the trial and appellate stages
of a criminal proceeding"). And so we reject, at least in cases of
delayed transcripts on appeal, the direct analogy made to tests
involving the Sixth Amendment speedy trial right, which underlies
the so-often articulated three-factor prejudice test quoted above.
Other courts have shared this concern. See, e.g., Cody v.
Henderson, 936 F.2d 715, 719 (2d Cir. 1991) ("Certainly, the
differences in a defendant's situation before trial and after
conviction suggest that at the very least the Barker factors should
not be applied uncritically."); see also Arkin, Speedy Criminal
Appeal: A Right Without A Remedy, 74 Minn. L. Rev. 437, 473-81
(1990) (concluding that the concerns of Barker, and the Barker
test, do not translate to the appellate delay setting).
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The first two of the adopted Barker prejudice factors
have little rationale in the appellate context. A defendant who
has been convicted of a crime no longer enjoys a presumption of
innocence, Herrera v. Collins, 506 U.S. 390, 399 (1993), and so his
incarceration pending appeal cannot itself be said to be
"oppressive." Further, there are other remedies concerning
conditions of confinement. The appellant may or may not meet the
requirements for bail on appeal.13 If the conditions of
incarceration raise Eighth Amendment concerns, habeas corpus is
available. Similarly, while any defendant who has been convicted
of a crime may experience anxiety during the pendency of the
appeal, this consideration is not useful to evaluating prejudice
for due process purposes.
Because Garcia has not shown prejudice, we do not reach
the reasons for the delay. Sometimes the reasons involve
inadequate resources in the reporting services available to the
district court, or overly busy court reporters; sometimes there are
13
Indeed, delay in the appeals process may itself strengthen an
appellant's case for having met those requirements, so long as that
delay is not attributable to the appellant. See, e.g., Leigh v.
United States, 82 S.Ct. 994, 997 (1962) (Warren, Circuit Justice)
(granting bail where "th[e] appeal is not frivolous, . . . such
delays as have occurred can hardly be attributed to applicant . . .
[and] [t]he Government does not contend that there is a likelihood
that applicant will flee the jurisdiction."); United States v.
Bentvena, 308 F.2d 47, 48 (2d Cir. 1962) (rejecting bail but noting
that "[i]f for any reason there are delays in the hearing of these
appeals for which the appellants are not responsible these motions
may be renewed.").
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other reasons. The problem of delay in production of transcripts
is a very serious one, but one which cannot be used to benefit a
defendant absent a showing of prejudice.
IV.
Garcia's conviction and sentence are affirmed.
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