United States v. Ayala-Bojorquez

• Court: Court of Appeals for the Tenth Circuit
• Decided: February 2, 2024
• Docket: 23-2054
• Status: Unpublished

Opinion

Appellate Case: 23-2054 Document: 010110994032 Date Filed: 02/02/2024 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT February 2, 2024 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 23-2054 (D.C. No. 2:21-CR-00890-MIS-1) ANDRES GERARDO AYALA- (D. N.M.) BOJORQUEZ,

Defendant - Appellant. _________________________________

ORDER AND JUDGMENT* _________________________________

Before HARTZ, PHILLIPS, and McHUGH, Circuit Judges. _________________________________

Andres Gerardo Ayala-Bojorquez appeals his conviction for illegal reentry.

His counsel has filed a motion to withdraw, together with a brief under Anders v.

California, 386 U.S. 738 (1967), based on counsel’s assessment that any argument on

appeal would be frivolous. We agree Ayala-Bojorquez has no non-frivolous

arguments, so we grant counsel’s motion to withdraw and dismiss the appeal.

* After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. 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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. Appellate Case: 23-2054 Document: 010110994032 Date Filed: 02/02/2024 Page: 2

I. BACKGROUND & PROCEDURAL HISTORY

Ayala-Bojorquez is a Mexican citizen who has repeatedly entered the United

States without permission. Since 1999, he has been removed to Mexico eight times.

His two most recent unlawful entries are relevant here.

First, he was discovered in New Mexico in May 2016. He was charged with

illegal reentry and pleaded guilty. He served a prison sentence and was removed to

Mexico in August 2019.

Next, he was found in New Mexico in March 2021, and was again charged

with illegal reentry. He again decided to plead guilty. He executed a written plea

agreement in which he admitted his prior removal in August 2019, his Mexican

citizenship, and his unauthorized reentry in March 2021. His plea agreement also

contained a prospective waiver of Federal Rule of Evidence 410, which normally

prohibits introduction of, among other things, “a statement made during plea

discussions with an attorney for the prosecuting authority if the discussions did not

result in a guilty plea or they resulted in a later-withdrawn guilty plea,” Fed. R. Evid.

410(a)(4).

The Rule 410 waiver soon turned out to be important. Before pleading guilty,

Ayala-Bojorquez changed his mind and decided to go to trial. The government then

successfully moved in limine to introduce the portion of his plea agreement admitting

the factual basis for his crime, and, at trial, the government indeed introduced those

admissions against him. The jury convicted and the district court imposed a

78-month prison sentence. This appeal followed.

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II. ANALYSIS

If, after conscientiously examining a case, defense counsel concludes any

appeal would be frivolous, counsel may so advise the court and request permission to

withdraw, but counsel must submit a brief highlighting any potentially appealable

issues and provide a copy to the defendant. Anders, 386 U.S. at 744. The defendant

may then submit a pro se brief. Id. If the court determines the appeal is frivolous

upon careful review of the record, it may grant the request to withdraw and dismiss

the appeal. Id. “On the other hand, if it finds any of the legal points arguable on

their merits (and therefore not frivolous) it must, prior to decision, afford the

[defendant] the assistance of counsel to argue the appeal.” Id.

Ayala-Bojorquez’s counsel submitted the required brief, and Ayala-Bojorquez

then submitted a letter offering four one-sentence arguments he hopes to make in this

appeal. After reviewing these filings and independently reviewing the record, we

conclude there are no available non-frivolous arguments, as explained below.

A. The 2016 Prosecution

Ayala-Bojorquez writes, “The judge should have not allowed my case from

2016 to be used in court.” Letter dated Aug. 29, 2023 (filed Sept. 5, 2023).1 We

presume he means his 2016 illegal-reentry prosecution. The record shows the

government was prepared to introduce certain documents from that prosecution, but it

never actually introduced them. We therefore see no potentially meritorious issue.

1 All further direct quotations of Ayala-Bojorquez’s arguments are to this same one-page letter. 3 Appellate Case: 23-2054 Document: 010110994032 Date Filed: 02/02/2024 Page: 4

B. The Plea Agreement

Ayala-Bojorquez next argues, “The judge should have not allowed any other

case that was a guilty plea.” As far as we are aware, the only “other case” he could

be referring to (i.e., other than his 2016 prosecution) is this case, in which the judge

allowed the jury to hear the admissions from the defunct plea agreement. We

thus interpret this argument as a challenge to the judge’s decision on that issue.

Ayala-Bojorquez’s counsel specifically raises this argument as one that is

theoretically available, but, in counsel’s opinion, would be frivolous. We ultimately

agree there is no chance of success here, but for different reasons than those offered

by counsel.

The Supreme Court has held that Rule 410 waivers are usually enforceable, at

least for impeachment purposes. United States v. Mezzanatto, 513 U.S. 196, 204,

207, 210 (1995). In Mezzanatto, the government obtained such a waiver from the

defendant as a condition of his cooperation, and, after the cooperation broke down,

the government used what he had divulged to impeach him at trial. Id. at 198–99.

The Supreme Court said the waiver was enforceable “absent some affirmative

indication that the agreement was entered into unknowingly or involuntarily.”

Id. at 210.

This court has extended Mezzanatto to allow admission of statements made in

plea agreements during the government’s case-in-chief. United States v. Mitchell,

633 F.3d 997, 1004 (10th Cir. 2011). The defendant in Mitchell waived his Rule 410

rights through a plea agreement, and he actually pleaded guilty, but later successfully

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moved to withdraw the plea. Id. at 999. We held the government permissibly

used his plea admissions against him as part of its case-in-chief at the ensuing trial.

Id. at 1004.

Ayala-Bojorquez’s counsel says these cases control here.2 In Mezzanatto and

Mitchell, however, the defendants entered into the agreement and went through with

the actions contemplated in the agreement (cooperating with the government and

pleading guilty, respectively). Ayala-Bojorquez, in contrast, entered into the

agreement but he did not go through with the plea. This may be a distinction without

a difference, but it is still a distinction, and one we have never addressed.

Rather than resolving the issue through an Anders proceeding like this one, we

take a narrower approach here. Even assuming the district court should have

excluded the admissions Ayala-Bojorquez made through his plea agreement, the error

would be harmless.

A nonconstitutional harmless error is one that does not have a substantial influence on the outcome of the trial; nor does it leave one in grave doubt as to whether it had such effect. Thus, where there is an abundance of evidence regarding the defendant’s guilt, the nonconstitutional error will be deemed harmless.

United States v. Solomon, 399 F.3d 1231, 1238 (10th Cir. 2005) (internal quotation

marks and citations omitted). In this case, the jury heard abundant evidence of

Ayala-Bojorquez’s guilt, aside from the admissions contained in his plea agreement.

2 Counsel also cites United States v. Jim, 786 F.3d 802 (10th Cir. 2015), as controlling, but Jim is merely an example of upholding a Rule 410 waiver after concluding the defendant knowingly and voluntarily pleaded guilty. See id. at 805–13. Jim adds nothing to the holdings of Mezzanatto or Mitchell. 5 Appellate Case: 23-2054 Document: 010110994032 Date Filed: 02/02/2024 Page: 6

The crime of illegal reentry comprises four elements: (1) the defendant is a

noncitizen (2) who has previously been removed from the United States (3) and

thereafter intentionally reenters the United States (4) without permission from the

U.S. government. See 8 U.S.C. § 1326(a); United States v. Sierra-Ledesma, 645 F.3d

1213, 1221–22 (10th Cir. 2011). In this regard, the jury heard testimony from:

 the border patrol officers who handled Ayala-Bojorquez’s removal in August 2019, one of whom actually watched Ayala-Bojorquez walk back into Mexico;

 the border patrol officers who discovered Ayala-Bojorquez in the New Mexico desert in March 2021;

 the border patrol officer who interviewed Ayala-Bojorquez that day, and to whom Ayala-Bojorquez admitted—after waiving his Miranda rights—that he was a Mexican citizen and had recently reentered the United States without permission by climbing a border fence (essentially the same statement he made in his plea agreement);

 a fingerprint analysis expert who testified that Ayala-Bojorquez’s fingerprints match those of the person who had been removed in August 2019; and

 a government records specialist who found nothing when he searched government databases for any record that Ayala-Bojorquez had requested lawful entry.

Ayala-Bojorquez’s trial attorneys did not cross-examine some of these

witnesses. For others, they brought up issues that have no relevance to the elements

of the crime, as we explain below in Parts II.C (regarding Ayala-Bojorquez’s border

crossing card) and II.D (regarding his age when he was first removed). The only

relevant cross-examination involved pointing out that agents had not video- or audio-

recorded their encounters with Ayala-Bojorquez.

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Finally, the government did not introduce the admissions from

Ayala-Bojorquez’s plea agreement until late in its case, and the jury was told that

the admissions were part of a signed statement, not part of a plea agreement.

In closing arguments, the government pointed to the signed statement only as a

fallback position, should the jury have any doubt about the witnesses’ testimony.

In short, the evidence against Ayala-Bojorquez was overwhelming, and the

hypothetically erroneous admission of his statements in the plea agreement—the

substance of which was already in evidence through other means—had no

“substantial influence on the outcome of the trial,” Solomon, 399 F.3d at 1238

(internal quotation marks omitted). In other words, any Rule 410 error would be

harmless. We therefore see no potentially meritorious challenge on this account.

C. Ayala-Bojorquez’s “Passport” or Border Crossing Card

Ayala-Bojorquez’s next argument is, “I wasn’t allowed to present a copy of

my passport in [sic] which makes it legal for me to be in the United States.” We

have not found any dispute over Ayala-Bojorquez’s passport in the record. At trial,

however, two government witnesses testified they saw a copy of Ayala-Bojorquez’s

border crossing card in his official file (i.e., his “A-file”). One witness remembered

that the picture on the card was of a child, and the other witness said the picture was

of a baby. No party sought to introduce the document itself. Ayala-Bojorquez’s

attorney, however, asked the jury to keep the border crossing card in mind while

deliberating because, in the attorney’s view, it was relevant to intent.

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If “I wasn’t allowed to present a copy of my passport” is a reference to this

border crossing card, we see no potentially meritorious issue, for two reasons.

First, no one moved to put the border crossing card into evidence. Thus,

Ayala-Bojorquez’s only hope on appeal would be to show it was plainly erroneous

for the district court not to sua sponte order that the card be put into evidence. See,

e.g., United States v. Perez-Perez, 992 F.3d 970, 974 (10th Cir. 2021) (stating that

arguments not raised below are reviewed for plain error). We are confident there is

no hope of a successful plain-error argument on this issue.

Second, contrary to Ayala-Bojorquez’s attorney’s argument to the jury, the

existence of the border crossing card was not relevant to intent. His attorney’s

argument implied Ayala-Bojorquez thought he had permission to enter the country,

thus cutting against any inference of intent to violate the law. However, the

only intent the government must prove in an illegal-reentry prosecution is intent

to enter the United States, as distinct from being brought here involuntarily. See

Sierra-Ledesma, 645 F.3d at 1221–22. Intent to break the law is not necessary.

United States v. Hernandez-Hernandez, 519 F.3d 1236, 1239–40 (10th Cir. 2008).

For these reasons, we see no basis to allow this appeal to proceed on the issue

of the border crossing card. And if Ayala-Bojorquez genuinely meant to refer to a

dispute over his passport (not the border crossing card), we see no potentially

meritorious issue because the record contains nothing about his passport.

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D. Ayala-Bojorquez’s Age at the Time of His First Removal

Ayala-Bojorquez’s final argument is, “I was not allowed to present my birth

certificate because I was a minor.” In context, it is clear he means the district court

did not allow him to argue that his original removal (in 1999) had been invalid

because he was supposedly a minor at the time of that removal and the government

had not employed procedures specific to removing minors.

The district court did not completely disallow this argument. Rather, the

district court held that Ayala-Bojorquez could pursue this argument only if he was

prepared to “put on witnesses to talk about fundamental unfairness, showing [of]

prejudice.” R. vol. 3 at 242. The court appears to have been alluding to the last part

of the statutory standard for collaterally attacking a removal order:

In a criminal proceeding [for illegal reentry], an alien may not challenge the validity of the [underlying] deportation order . . . unless [he] demonstrates that—

(1) [he] 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 [him] of the opportunity for judicial review; and

(3) the entry of the order was fundamentally unfair.

8 U.S.C. § 1326(d). Ayala-Bojorquez did not put on a defense case about this or any

other issue.

His appellate counsel identifies the allegedly invalid original removal order as

a potential, but ultimately frivolous, argument. Counsel says the validity of the

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original order is irrelevant in light of the admissions from the plea agreement that

were introduced into evidence.

As before, we prefer not to rely on the plea agreement in these circumstances.

And, as before, there is a reason, apart from the plea agreement, to conclude there is

no potentially meritorious issue here—specifically, Ayala-Bojorquez did not attempt

to satisfy the § 1326(d) requirements. Thus, we see no basis to allow this appeal to

proceed on this issue.

E. The 78-Month Sentence

Counsel (although not Ayala-Bojorquez himself) suggests one more issue

that theoretically could be presented on appeal, regarding Ayala-Bojorquez’s

sentence. His sentencing guidelines calculation showed a total offense level of

20 and a criminal history category of V, for an advisory range of 63–78 months.

Ayala-Bojorquez did not dispute the calculation, but he moved for a downward

variance, arguing that the calculation overrepresented his criminal history because

most of his prior criminal offenses were non-violent immigration violations. He

suggested a range of 30–37 months (corresponding to offense level 17 and criminal

history category III) would satisfy the 18 U.S.C. § 3553(a) factors. The district court

disagreed and imposed a 78-month sentence—the high end of the guidelines

calculation—because the court believed the most important factor under the

circumstances was deterrence. See 18 U.S.C. § 3553(a)(2)(B). Specifically, the

court noted Ayala-Bojorquez had nine prior convictions, including a 2010 conviction

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for which he received a 70-month sentence. Thus, the court concluded that a

78-month sentence was the best option to deter further criminal conduct.

Appellate counsel notes that Ayala-Bojorquez could try to challenge the

district court’s denial of his motion for a variance, but counsel believes the challenge

would be frivolous. We agree. “This court reviews a district court’s decision to

grant or deny a request for variance under a deferential abuse of discretion standard.”

United States v. Beltran, 571 F.3d 1013, 1018 (10th Cir. 2009). The district court

provided a cogent and reasonable explanation for its decision. We see no colorable

claim that it abused its discretion.

III. CONCLUSION

We grant counsel’s motion to withdraw and dismiss this appeal as frivolous.

Entered for the Court

Gregory A. Phillips Circuit Judge