United States v. Rocha

• Court: Court of Appeals for the Sixth Circuit
• Decided: July 25, 2003
• Docket: 03-5149
• Status: Published

Opinion

RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 2 United States v. Rocha No. 03-5149 ELECTRONIC CITATION: 2003 FED App. 0251P (6th Cir.) File Name: 03a0251p.06 ASSISTANT UNITED STATES ATTORNEY, Lexington, Kentucky, for Appellee. ON BRIEF: Firooz T. Namei, Candace C. Crouse, MCKINNEY & NAMEI, Cincinnati, UNITED STATES COURT OF APPEALS Ohio, for Appellant. John Patrick Grant, Charles P. Wisdom, Jr., ASSISTANT UNITED STATES ATTORNEY, FOR THE SIXTH CIRCUIT Lexington, Kentucky, for Appellee. _________________ _________________ UNITED STATES OF AMERICA , X Plaintiff-Appellee, - OPINION - _________________ - No. 03-5149 v. - RONALD LEE GILMAN, Circuit Judge. A federal grand > jury indicted Alfonso Martinez-Rocha in May of 2002 on one , count of unlawfully reentering the United States after having ALFONSO MARTINEZ ROCHA, - Defendant-Appellant. - been deported. Martinez-Rocha moved to dismiss the indictment on the ground that the prior order of deportation N was predicated on the legal error that his 1999 driving-under- Appeal from the United States District Court the-influence (DUI) conviction was an “aggravated felony.” for the Eastern District of Kentucky at Covington. After the district court denied his motion, Martinez-Rocha No. 02-00030—Danny C. Reeves, District Judge. entered a conditional plea of guilty. He then appealed in order to challenge the alleged legal error. For the reasons set Argued: June 18, 2003 forth below, we AFFIRM the judgment of the district court.

Decided and Filed: July 25, 2003 I. BACKGROUND

Before: BOGGS and GILMAN, Circuit Judges; A. Factual background MARBLEY, District Judge.* Martinez-Rocha is a citizen of Mexico who entered the _________________ United States without authorization in 1993. Approximately six years later he was convicted in a Kentucky state court of COUNSEL DUI and was sentenced to 18 months in prison, followed by a probationary term. After Martinez-Rocha was released ARGUED: Firooz T. Namei, MCKINNEY & NAMEI, from prison, he was arrested in Kentucky for violating the Cincinnati, Ohio, for Appellant. John Patrick Grant, terms of his probation. The Immigration and Naturalization Service (INS) took him into custody. According to INS Agent Michael Galvan, who spoke with Martinez-Rocha shortly thereafter, Martinez-Rocha “said he wanted to go back * The Honorable Algenon L. Marbley, United States District Judge for to Mexico and that he wanted to do it as soon as possible. He the Southern District of Ohio, sitting by designation.

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actually contacted his probation officer, who in turn contacted B. Procedural background me.” A single-count indictment was returned against Martinez- Martinez-Rocha was then transported to Louisiana. He Rocha, charging him with violating 8 U.S.C. § 1326, which received a Notice of Intent to Issue Final Administrative prescribes a criminal penalty for “any alien who . . . (1) has Removal Order in June of 2000. This notice advised him that been . . . deported . . ., and thereafter (2) enters . . . the United the INS was seeking his deportation pursuant to 8 U.S.C. States” without authorization. 8 U.S.C. § 1326(a). The § 1227(a)(2)(A)(iii), which provides that “[a]ny alien who is indictment alleged that Martinez-Rocha was “an alien who convicted of an aggravated felony at any time after admission had previously been deported following his conviction for an is deportable.” aggravated felony.” An enhanced penalty applies to any alien “whose removal was subsequent to a conviction for On June 30, 2000, Martinez-Rocha signed an English- commission of an aggravated felony,” pursuant to 8 U.S.C. language form acknowledging that he had received the Notice § 1326(b)(2). of Intent. The form memorialized that the notice had been read to Martinez-Rocha in Spanish. Martinez-Rocha also Martinez-Rocha filed a motion to dismiss the indictment. signed his name below the following statement: He contended that his 1999 DUI conviction should not have been considered an aggravated felony, so that the order of I admit the allegations and charge in this Notice of Intent. removal in 2000 was erroneous. The government countered I admit that I am deportable and acknowledge that I am that the underlying deportation order was not subject to not eligible for any form of relief from removal. I waive collateral attack. After conducting a hearing, the district court my right to rebut and contest the above charges and my denied the motion to dismiss. Martinez-Rocha then entered right to file a petition for review of the Final Removal a conditional plea of guilty. He was sentenced to 15 months Order. I do not wish to request withholding or deferral in prison. Although the district court also imposed a two-year of removal. I wish to be removed to Mexico. term of supervised release, the judgment noted that this term would not be applicable if Martinez-Rocha was deported after The INS issued a final administrative removal order on the his imprisonment. This timely appeal followed. same day. On July 13, 2000, Martinez-Rocha was deported. II. ANALYSIS A few months later, Martinez-Rocha again entered the United States without authorization and returned to Kentucky. Martinez-Rocha argues that his 1999 DUI conviction State authorities arrested him in April of 2002 because he had should not have been characterized as an aggravated felony. not paid the financial penalties that he had incurred as the But a defendant charged with unlawfully reentering the result of a traffic conviction. An INS agent then interviewed United States after having been ordered deported may not Martinez-Rocha, who acknowledged that he had been challenge the validity of the underlying deportation order deported in July of 2000. unless three statutory conditions are satisfied. The defendant must demonstrate that: (1) the alien exhausted any administrative remedies that may have been available to seek relief against the order; No. 03-5149 United States v. Rocha 5 6 United States v. Rocha No. 03-5149

(2) the deportation proceedings at which the order was of right to an administrative appeal did not comport with due issued improperly deprived the alien of the opportunity process.”). for judicial review; and The district court, however, found that Martinez-Rocha’s (3) the entry of the order was fundamentally unfair. waiver was considered and intelligent. We will not reverse a district court’s factual finding unless it is clearly erroneous. 8 U.S.C. § 1326(d). United States v. Sykes, 292 F.3d 495, 497 (6th Cir.) (“A district court’s determination that a waiver was knowingly This court has not directly addressed the standard of review and voluntarily made is reviewed for clear error.”), cert. for a collateral challenge under 8 U.S.C. § 1326(d) to a prior denied, 123 S. Ct. 400 (2002). order of deportation. The circuits that have addressed the issue, however, are unanimous in deciding that de novo Although Martinez-Rocha testified that he did not fully review is appropriate. E.g., United States v. Zalaya, 293 F.3d understand the waiver because he did not speak “the whole 1294, 1297 (11th Cir. 2002) (holding that a district court’s English,” he signed a form stating that he did not wish to denial of a motion to dismiss an indictment on the basis of a contest the charges that was read to him in both English and collateral challenge to the underlying deportation order “is an Spanish. He also conferred with INS agents and with the issue of law to be reviewed de novo on appeal,” and noting Mexican consulate prior to being deported, and his waiver the agreement of the Second and Ninth Circuits). This was consistent with the testimony of Agent Galvan that matches the standard applicable to a review of the district Martinez-Rocha had expressed a desire to return to Mexico as court’s denial of a motion to dismiss an indictment on soon as possible. In addition, Martinez-Rocha’s testimony in grounds that involve questions of law. E.g., In re Ford, 987 the district court reflects his command of English. The F.2d 334, 339 (6th Cir. 1992) (“This court reviews de novo a district court therefore did not clearly err in crediting the district court’s denial of a motion to dismiss an indictment on testimony of Agent Galvan and the documentary evidence the grounds of double jeopardy.”). We find these authorities that Martinez-Rocha’s waiver was a knowing and considered persuasive, and therefore will review the district court’s choice. See Anderson v. Bessemer City, 470 U.S. 564, 574 denial of Martinez-Rocha’s motion de novo. (1985) (“Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be Martinez-Rocha admittedly did not exhaust his clearly erroneous.”); United States v. Cruse, No. 01-5874, administrative remedies when he waived his right to contest 2003 WL 344337, at *5 (6th Cir. Feb. 7, 2003) (holding that the ground on which he was deportable. But he claims that the district court did not clearly err in finding that the college- his waiver was invalid because he did not understand at the educated defendant had knowingly and intelligently waived time that he was, in fact, waiving his right to contest the his rights under Miranda v. Arizona, 384 U.S. 436 (1966), by charges against him. See United States v. Mendoza-Lopez, signing a waiver form so indicating, despite the defendant’s 481 U.S. 828, 840 (1987) (holding that an alien’s waiver of testimony that “he neither read nor understood the waiver the right to apply for suspension of deportation was invalid form before signing it”); United States v. Rangel de Aguilar, where it was not “considered or intelligent”); United States v. 308 F.3d 1134, 1138-39 (10th Cir. 2002) (holding that a Muro-Inclan, 249 F.3d 1180, 1183 (9th Cir. 2001) (“The defendant had no basis for collateral attack on her deportation exhaustion requirement of 8 U.S.C. § 1326(d) cannot bar order where the evidence indicated that she had made a collateral review of a deportation proceeding when the waiver considered and intelligent waiver of her right to contest the No. 03-5149 United States v. Rocha 7

deportation proceedings), cert. denied, 123 S. Ct. 1372 (2003). At oral argument, counsel for Martinez-Rocha contended that the waiver could not have truly been a considered choice because other immigration options were available to Martinez-Rocha in the summer of 2000 that did not have the negative consequences of a deportation order. But a waiver need not be the best choice under the circumstances in order for it to be “considered and intelligent.” See United States v. Turner, 287 F.3d 980, 984 (10th Cir. 2002) (acknowledging that “[t]he use of the word intelligent within the standard used to determine an effective waiver of counsel gives this court some pause,” but concluding that “knowingly and intelligently waiving the right to counsel is different from making a wise decision”); cf. United States v. Peck, No. 01- 5586, 2003 WL 1465563, at *4 (6th Cir. Mar. 19, 2003) (“Although the decision to represent himself may not have been in [the defendant’s] best interest, the record supports the district court’s conclusion that [the defendant] was competent to make that choice, and that he did so knowingly and voluntarily.”). Because the district court did not clearly err in deciding that the waiver at issue here met those criteria, Martinez-Rocha has failed to satisfy any of the requirements of 8 U.S.C. § 1326(d). He is therefore barred from collaterally attacking his prior order of deportation. III. CONCLUSION For all of the reasons set forth above, we AFFIRM the judgment of the district court.