United States v. Perez-Hernandez

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT January 27, 2021
_________________________________
Christopher M. Wolpert
Clerk of Court
UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 19-2204
(D.C. No. 2:18-CR-03752-KG-1)
PEDRO PEREZ-HERNANDEZ, (D.N.M.)

Defendant - Appellant.

–––––––––––––––––––––––––––––––––––

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 19-2205
(D.C. No. 2:18-CR-04018-KG-1)
PEDRO PEREZ-HERNANDEZ, (D.N.M.)

Defendant - Appellant.
_________________________________

ORDER AND JUDGMENT *
_________________________________

Before HOLMES, BACHARACH, and MORITZ, Circuit Judges.
_________________________________

*
After examining the brief, pro se filings, and appellate record, this panel has
determined unanimously that oral argument would not materially assist in the
determination of these consolidated appeals. See Fed. R. App. P. 34(a)(2);
10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.
This order and judgment is not binding precedent, except under the doctrines of law
of the case, res judicata, and collateral estoppel. But it may be cited for its persuasive
value. See Fed. R. App. P. 32.1(a); 10th Cir. R. 32.1(A).
 Pedro Perez-Hernandez appeals his illegal-reentry conviction and two related

sentences. Defense counsel filed an Anders brief and moved to withdraw. See Anders

v. California, 386 U.S. 738, 744 (1967) (stating that if after “conscientious

examination” of record counsel finds appeal “wholly frivolous,” then counsel may

move to withdraw and contemporaneously file “brief referring to anything in the

record that might arguably support the appeal”). Perez-Hernandez filed three pro se

responses to the Anders brief, 1 and the government declined to file a brief. We have

reviewed the Anders brief and Perez-Hernandez’s pro se responses and have

conducted a full examination of the record to determine whether the consolidated

appeals are wholly frivolous. See United States v. Calderon, 428 F.3d 928, 930 (10th

Cir. 2005). Because we conclude that they are, we dismiss the appeals and grant

counsel’s motion to withdraw. See Anders, 386 U.S. at 744.

The government charged Perez-Hernandez with illegal reentry after removal in

violation of 8 U.S.C. § 1326(a) and (b). During his bench trial, Perez-Hernandez

asserted that he could not be convicted of illegal reentry because he has derivative

citizenship through his allegedly adoptive stepfather. The district court rejected this

derivative-citizenship defense, finding that Perez-Hernandez failed to present

sufficient evidence to substantiate his adoption claim. The district court then found

Perez-Hernandez guilty of illegal reentry. And after considering, among other things,

1
For clarity, we refer to Perez-Hernandez’s first pro se response, filed June 17,
2020, as “Aplt. Resp.”; his second pro se response, filed August 3, 2020, as “Aplt.
Supp. Resp.”; and his third pro se response, filed August 27, 2020, as “Aplt. Second
Supp. Resp.”
2
Perez-Hernandez’s significant criminal history, the district court sentenced him to 63

months in prison. Additionally, because Perez-Hernandez’s illegal reentry violated

the conditions of his supervised release from his prior illegal-reentry conviction, the

district court also imposed a consecutive eight-month sentence for that violation.

Counsel identifies two possible arguments for Perez-Hernandez’s appeal: the

first concerns Perez-Hernandez’s assertion that the district court erred in denying his

derivative-citizenship defense, and the second is Perez-Hernandez’s claim that he

received ineffective assistance of counsel (IAC). Perez-Hernandez agrees that these

claims support his appeal, and he separately asserts additional arguments.

Regarding the derivative-citizenship defense, we review a district court’s

factual findings for clear error and its legal determinations de novo. See United States

v. Patton, 927 F.3d 1087, 1093 (10th Cir. 2019). Perez-Hernandez contends that he

presented sufficient evidence to establish his alleged adoption and the district court

therefore erred in rejecting his derivative-citizenship defense.

Adoption involves a formal judicial act and thus can generally be established

through official court documents, including a judgment of adoption. See Ojo v.

Lynch, 813 F.3d 533, 535, 539 (4th Cir. 2016). But Perez-Hernandez presents no

official court documents, nor does he offer any explanation for his failure to do so.

Instead, Perez-Hernandez relies on an August 11, 2014 email from Immigration and

Customs Enforcement (ICE) stating that Perez-Hernandez would “NOT be taken into

ICE custody as he was determined to have derived [U.S.] citizenship status through

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his adopted father,” Case No. 19-2204, R. vol. 1, 43; an I-130 form 2 showing that his

stepfather claimed to be his adopted father; and a Social Security letter showing that

his mother at one time received Social Security benefits on his behalf. Perez-

Hernandez also selectively quotes from a prior hearing transcript to suggest that the

government once admitted that he was adopted: “[W]e do have these records and they

do show that those things that he’s asking us to take a look at, that he was actually

adopted and granted some sort of status for that adoption.” Aplt. Supp. Resp. 6.

Even assuming that adoption can be established without the judgment of

adoption or other official documents, the evidence Perez-Hernandez relies on here

falls short. As the district court explained, Perez-Hernandez fails to demonstrate how

an informal ICE email, an adoption claim on an I-130 form, or his mother’s receipt of

Social Security benefits on his behalf prove that he was legally adopted by his

stepfather. And as for the government’s supposed admission that Perez-Hernandez

was adopted, in full, the government actually stated:

[W]e do have these records and they do show that those things that he [is]
asking us to take a look at, it must have been a mistake or something other
than that, because he has no other proof, other than what we have, that he
was actually adopted and granted some sort of status for that adoption. We
[have] taken a look at extensive evidence. We [have] contacted his mother
and she [is] not able to provide us with anything that would show that he
was actually adopted.

2
An I-130 form is a form for U.S. citizens or lawful permanent residents to
petition the government to provide a permanent-resident card to the citizen or
permanent resident’s relative. See I-130, Petition for Alien Relative, U.S. Citizenship
and Immigration Services, https://www.uscis.gov/i-130 (last updated Dec. 14, 2020).
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Aplt. Supp. Resp. Ex. C (emphasis added). Thus, this transcript does not support

Perez-Hernandez’s adoption claim.

Perez-Hernandez contends that he is unable to present any additional evidence

because of an alleged loss of his property and the difficulties posed by the passage of

time. But Perez-Hernandez fails to identify any evidence that he could have presented

were it not for these circumstances to establish that he was legally adopted. Because

Perez-Hernandez has not submitted competent evidence establishing his adoption by

his stepfather, the district court did not err in concluding that Perez-Hernandez has

not met the requirements for derivative citizenship. See Patton, 927 F.3d at 1093.

Turning to the IAC claims, Perez-Hernandez alleges that his trial counsel

failed to investigate certain issues, to present evidence, and to call an expert in

immigration law. He further contends that his trial counsel was ineffective for failing

to file a motion for a new trial such that Perez-Hernandez filed his own pro se new-

trial motion. Yet, except in rare circumstances, we consider IAC claims on collateral

review only. See United States v. Hahn, 359 F.3d 1315, 1327 n.13 (10th Cir. 2004).

IAC claims pursued on direct appeal “are presumptively dismissible, and virtually all

will be dismissed.” United States v. Flood, 635 F.3d 1255, 1260 (10th Cir. 2011)

(quoting United States v. Galloway, 56 F.3d 1239, 1240 (10th Cir. 1995) (en banc)).

Here, Perez-Hernandez has not offered any “argument supporting a reason to

depart from our general practice.” United States v. Porter, 405 F.3d 1136, 1144 (10th

Cir. 2005). Even if he had, the record is not sufficiently developed for us to resolve

Perez-Hernandez’s IAC claims. Moreover, the district court acknowledged the claims

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but did not directly rule on them. “[T]his court has considered ineffective assistance

of counsel claims on direct appeal in limited circumstances, but only where the issue

was raised before and ruled upon by the district court and a sufficient factual record

exists.” Flood, 635 F.3d at 1260; see also Galloway, 56 F.3d at 1241 (noting that “we

will not remand” to develop record or obtain district-court ruling on IAC claims

brought “during the direct appeal of a case”). Accordingly, we decline to consider

Perez-Hernandez’s IAC claims.

We now turn to the additional arguments raised in Perez-Hernandez’s pro se

responses. He first contends that the district court erred by refusing to admit certain

exhibits that would allegedly support a finding of derivative citizenship. We review

evidentiary challenges for an abuse of discretion. See United States v. Tony, 948 F.3d

1259, 1261 (10th Cir. 2020). “A district court abuses its discretion when it renders an

arbitrary, capricious, whimsical, or manifestly unreasonable judgment,” and we will

reverse such a judgment only “if the court exceeded the bounds of permissible

choice.” United States v. Silva, 889 F.3d 704, 709 (10th Cir. 2018) (first quoting

Ralston v. Smith & Nephew Richards, Inc., 275 F.3d 965, 968 (10th Cir. 2001); and

then quoting United States v. McComb, 519 F.3d 1049, 1053 (10th Cir. 2007)), cert.

denied, 139 S. Ct. 1319 (2019).

The district court considered both parties’ extensive arguments regarding

Perez-Hernandez’s exhibits and made measured rulings as to the admissibility of

each exhibit. In particular, the district court found that the exhibits were hearsay and

were not sufficiently reliable or supported by guarantees of trustworthiness. The

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district court further found that the exhibits were not admissible as an opposing

party’s statement, see Fed. R. Evid. 801(d)(2); as a business record, see Fed. R. Evid.

803(6); or under the residual exception, see Fed. R. Evid. 807. We detect no abuse of

discretion in the district court’s decision to exclude these exhibits. 3

Perez-Hernandez also argues—for the first time on appeal—that the district

court erred by finding the “incorrect” testimony of four witnesses credible. Aplt.

Resp. 5. Because this is a new argument on appeal, we apply plain-error review. See

United States v. Hinson, 585 F.3d 1328, 1333 (10th Cir. 2009). Under this standard,

even assuming that some error occurred and that the error was plain, it is apparent

that any credence the district court gave the testimony at issue did not affect Perez-

Hernandez’s substantial rights and did not “seriously affect[] the fairness, integrity,

or public reputation” of his trial. Id. For example, Perez-Hernandez argues that one

witness incorrectly testified that the manner in which Perez-Hernandez entered the

United States was by climbing a fence. Similarly, he argues that another witness

incorrectly testified as to the number of his deportations. Because the nature of this

testimony would not have “affected the outcome of th[e] proceeding,” Perez-

Hernandez cannot carry his burden to show plain error, and reversal is not warranted.

Id. at 1335.

3
In addition, the district court never ruled on the admissibility of one exhibit
at issue because Perez-Hernandez expressly declined to offer the exhibit at trial. To
the extent that this nonruling constituted error, we conclude Perez-Hernandez invited
it by declining to offer the exhibit below.
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 Perez-Hernandez next challenges the substantive reasonableness of his

sentences, contending that the district court abused its discretion by imposing

excessive sentences. Sentences must be procedurally sound and substantively

reasonable. See Gall v. United States, 552 U.S. 38, 51 (2007). Our review does not

reveal any procedural errors with either sentence.

Substantive reasonableness depends on “whether the length of the sentence is

reasonable given all the circumstances of the case in light of the factors set forth in

18 U.S.C. § 3553(a).” United States v. Alapizco-Valenzuela, 546 F.3d 1208, 1215

(10th Cir. 2008) (quoting United States v. Conlan, 500 F.3d 1167, 1169 (10th Cir.

2007)). We review for an abuse of discretion, “a standard requiring ‘substantial

deference to district courts.’” United States v. Friedman, 554 F.3d 1301, 1307 (10th

Cir. 2009) (quoting United States v. Sells, 541 F.3d 1227, 1237 (10th Cir. 2008)).

Perez-Hernandez’s sentences fall within the ranges set forth by the advisory

United States Sentencing Guidelines (the Guidelines), and we therefore presume they

are substantively reasonable. See Alapizco-Valenzuela, 546 F.3d at 1215. This

presumption can be rebutted by a showing that the sentences are unreasonable in light

of the § 3553(a) factors. See id. Although Perez-Hernandez believes his sentences are

excessive, he fails to point to any facts undermining the district court’s rationale.

And the record supports the district court’s decisions to impose the 63-month and

eight-month sentences. For example, the district court explained that this is not

Perez-Hernandez’s first violation of the law, or even his first reentry, and it relied on

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this criminal history to justify the length of the sentences. Accordingly, any challenge

to the substantive reasonableness of either sentence would be wholly frivolous.

Perez-Hernandez also contends that he should have been fined rather than sent

to prison. But the Guidelines advise imposing sentences of imprisonment for both

Perez-Hernandez’s illegal-reentry conviction and his supervised-release violation.

See U.S.S.G. § 5C1.1(f) (instructing that minimum term “shall be satisfied by a

sentence of imprisonment”); id. § 7B1.3(a)(1), (c)(2) (advising revocation of

supervised release and imposition of prison sentence). And Perez-Hernandez fails to

demonstrate that the district court abused its discretion in declining to vary from the

Guidelines.

Finally, Perez-Hernandez argues that he should have been granted bail rather

than sent to prison, but bail is not an alternative to a prison sentence. Cf., e.g.,

18 U.S.C. §§ 3141–3143 (explaining availability of bail pending trial, sentencing,

and appeal but not discussing bail as alternative to prison). 4

Because our review of the submissions and examination of the record reveals

no nonfrivolous basis for appeal, we dismiss the consolidated appeals and grant the

4
Perez-Hernandez raises several additional arguments relating to his
conviction and sentences. We decline to consider these additional arguments as they
are either demonstrably untrue or lack legal or factual support.
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motion to withdraw. See Calderon, 428 F.3d at 930.

Entered for the Court

Nancy L. Moritz
Circuit Judge

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