People v. Garcia

2014 COA 85, 356 P.3d 913, 2014 WL 2980280, 2014 Colo. App. LEXIS 1084
CourtColorado Court of Appeals
DecidedJuly 3, 2014
DocketCourt of Appeals No. 11CA1178
StatusPublished
Cited by12 cases

This text of 2014 COA 85 (People v. Garcia) is published on Counsel Stack Legal Research, covering Colorado Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Garcia, 2014 COA 85, 356 P.3d 913, 2014 WL 2980280, 2014 Colo. App. LEXIS 1084 (Colo. Ct. App. 2014).

Opinion

Opinion by

JUDGE TAUBMAN

T1 Defendant, Esteban Zamora Garcia, - appeals the trial court's revocation of his probation based on its finding that he entered the United States illegally for the third time without a valid visa He argues that only a federal immigration judge may determine the legal status of an immigrant. The People, however, contend that the appeal is moot because Garcia was removed from the United States after serving his sentence, and is permanently barred from reentry as a result of his criminal impersonation conviction. We agree with the People, and dismiss the appeal.

I. Background

11 2 In 2010, Garcia pleaded guilty to erimi-nal impersonation for providing a false name and false identification documents to police officers when they pulled him over for driving under the influence (DUI), The trial court sentenced him to sixty months of probation and one year in jail for his DUI conviction, on condition that he "voluntarily or involuntarily depart [the United States] and not reenter without inspection and visa."

18 After Garcia filed a motion for sentence reconsideration, the trial court waived his remaining jail time and released him to the custody of Immigration and Customs Enforcement (ICE) for deportation.

T4 A year later, Garcia returned to the United States. The police arrested him again for a traffic violation and charged him with violating the conditions of his probation by returning to the United States without a valid visa.

visa. 15 The trial court revoked Garcia's probation after finding that he had reentered the United States without a valid passport or This finding was based on (1) ICE records verifying Garcia's identity. and May 2010 removal; (2) the ICE immigration de-tainer notice issued after his latest arrest; (8) Garcia's very presence, which showed that he had reentered the United States; and (4) his refusal to answer any questions on Fifth Amendment grounds during the probation revocation hearing.

T6 The trial court resentenced him to one year in the custody of the Department of Corrections, with credit for 211 days,.served. After Garcia completed his sentence, ICE deported him for the third time. In 201%, Garcia returned to the United States but ICE deported him for the fourth time.

II. Mootness

T7 In response to Garcia's notice of appeal, the People filed .a motion to dismiss, arguing that the appeal is moot. A motions division of this court deferred. its ruling to us. We now grant the People's motion to dismiss.

A. Standard of Review ,

18 Whether an appeal is moot is a question of law that we decide de novo,. Bd. of Dirs., Metro Wastewater Reclomation Dist. v. Nat'l Umion Fire Ins. Co., 105 P.3d 653, 656 (Colo.2005),

B. Analysis

19 The doctrine of mootness precludes us from reviewing a case in which our decision will have no practical effect on an actual or existing controversy. Id. When evaluating whether a conviction appeal is moot, courts should consider both the direct and collateral consequences of a conviction. See Moland v. People, 757 P.2d 137, 139 [916]*916(Colo.1988) (" '[A] eriminal case is moot only if it is shown that there is no possibility that any collateral legal consequences will be imposed on the basis of the challenged conviction. " (quoting Sibron v. New York, 392 U.S. 40, 57, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968))).

110 As relevant here, a defendant's appeal of an order revoking probation is rendered moot after the defendant completes the resulting term of imprisonment. United States v. Meyers, 200 F.3d 715, 722 (10th Cr.2000). The "potential impact of the revocation order and sentence on possible later sentencing proceedings does not constitute a sufficient collateral consequence to defeat mootness." Id.; see also United States v. Probber, 170 F.3d 345, 347-49 (2d Cir.1999) (holding that in an appeal of a revocation of supervised release in which the defendant had completed his term of imprisonment, the possible effect of the findings underlying the revocation order on future sentencing was too speculative to save the appeal from mootness).

$11 Here, the People contend that our ruling on the merits will not affect Garcia because: (1) he has served his sentence; (2) he is challenging his probation revocation, not his sentence or conviction; (8) he was deported; and (4) he is permanently barred from reentry. Conversely, Garcia contends that the appeal is not moot because his probation revocation has collateral consequences. Specifically, he argues that the trial court's decision would affect his future naturalization and legal admission into the United States. We agree with the People's contentions.

T12 We conclude that Garcia's appeal is moot for three reasons: (1) he has already served his sentence; (2) he is not contesting his conviction, which could affect his admission to the United States; and @) he is permanently barred from reentering the United States because criminal impersonation is a erime involving moral turpitude (CIMT). See Beltran-Rubio v. Holder, 565 Fed.Appx. 704, 708, No. 13-9565, 2014 WL 1690754 at *4 (10th Cir. Apr. 30, 2014) (unpublished opinion).

T13 First, Garcia has already completed his sentence; therefore, our decision will not affect him even if we were to reverse the trial court's probation revocation. See Meyers, 200 F.3d at 722.

T 14 Second, Garcia is not contesting his conviction. Garcia's bar to reentry is based on the nature of the erime for which he was convicted, not his probation revocation. See People v. Garcia, 89 P.3d 519, 519 (Colo.App. 2004) (stating the case is moot because the defendant is only contesting his sentence, not his conviction, and that he would not be able to serve his sentence in the United States). Thus, regardless of this appeal's outcome, his bar to reentry will remain in effect. See id.

115 Last, he is permanently barred from reentering the United States because his criminal impersonation conviction is a CIMT. Garcia disagrees. He contends that in Martinez-Osogobio v. Holder, 373 Fed. Appx. 830 (10th Cir.2010) (unpublished opinion), an immigration judge found that a defendant's "conviction for eriminal impersonation [under section 18-5-118(l)(e), C.R.S. 2013,] did not constitute a CIMT under 8 U.S.C. § Id. at 882 n. 1. The Tenth Circuit, however, did not review that finding because the Department of Homeland Security did not appeal that issue. Thus, Martines-Osogobio is distinguishable.

{16 Conversely, the Tenth Circuit's decision in Beltraon-Rubilo is on point. In that case, the court determined that a criminal impersonation conviction under section 18-5-118(l)(e), C.R.S.2018, constitutes a CIMT. The court reasoned that eriminal impersonation is a morally turpitudinous act that involves knowing or intentional fraud.

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Bluebook (online)
2014 COA 85, 356 P.3d 913, 2014 WL 2980280, 2014 Colo. App. LEXIS 1084, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-garcia-coloctapp-2014.