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United States v. Valdez-Novoa

United States Court of Appeals, Ninth Circuit

July 28, 2014

UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
JESUS VALDEZ-NOVOA, Defendant-Appellant

Argued and Submitted, Pasadena, California: November 6, 2013.

As Amended October 24, 2014.

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Appeal from the United States District Court for the Southern District of California. D.C. No. 3:11-cr-00872-JAH-1. John A. Houston, District Judge, Presiding.

Criminal Law

The panel affirmed a conviction for attempting to enter the United States without consent after having been previously removed under 8 U.S.C. § 1326(a).

The defendant collaterally attacked the underlying June 11, 1999, removal order, alleging that the immigration judge erred in concluding that he had been convicted of an aggravated felony(based on his conviction of reckless driving causing great bodily injury) and therefore violated his right to due process by failing to advise him of his apparent eligibility for voluntary departure relief. The panel held that the defendant was not denied due process because the IJ's determination that he had been convicted of an aggravated felony was not contrary to this court's precedent at the time the removal order was issued and was the product of a reasonable reading of 18 U.S.C. § 16. Because the defendant had been convicted of an aggravated felony, the panel concluded that he was statutorily ineligible for voluntary departure, and the IJ was under no obligation to inform him of the existence of such relief for the proceedings to comport with due process.

Alternatively, the panel held that even if the IJ should have informed the defendant of his apparent eligibility for voluntary departure, the defendant was not prejudiced by the error because the defendant has not shown that it is plausible that an IJ would have granted a request for voluntary departure in light of his negative and positive equities at the time of the removal proceedings. Because the defendant was not prejudiced by the presumed error, the panel concluded that the removal order was not fundamentally unfair under 8 U.S.C. § 1326(d)(3).

The panel held that the conviction based on the defendant's videotaped confession does not run afoul of the corpus delicti doctrine because ample record evidence corroborates the defendant's confession to the gravamen of the offense and establishes the trustworthiness of his statement to a DHS officer.

Dissenting, Judge McKeown wrote separately because the government earlier conceded that there was a due process violation, and because the majority elevates the benchmark for prejudice, the " plausibility" inquiry, to the higher standard of either preponderance or probability. She would reverse the district court's judgment because it is plausible that the IJ would have exercised discretion to grant voluntary departure.

Kristi A. Hughes (argued) and Lauren D. Cusick, Federal Defenders of San Diego, Inc., San Diego, California, for Defendant-Appellant.

Daniel E. Zipp (argued), Assistant United States Attorney; Laura E. Duffy, United States Attorney; Bruce R. Castetter, Assistant United States Attorney, Chief, Appellate Section, Criminal Division, San Diego, California, for Plaintiff-Appellee.

Before: M. Margaret McKeown, Ronald M. Gould, and Jay S. Bybee, Circuit Judges. Opinion by Judge Bybee. Judge McKEOWN, Circuit Judge, dissenting.

OPINION

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BYBEE, Circuit Judge:

Jesus Valdez-Novoa, a native and citizen of Mexico, appeals his conviction for attempting to enter the United States without consent after having been previously removed in violation of 8 U.S.C. § 1326(a). We have jurisdiction under 28 U.S.C. § 1291. We affirm.

Valdez-Novoa entered the U.S. without inspection in 1983 and has never obtained legal status. On June 11, 1999, an Immigration Judge (IJ) deemed Valdez-Novoa removable and prohibited him from reentering the U.S. at any time because he had been convicted of an aggravated felony. Throughout the next decade, Valdez-Novoa returned to the U.S. on several occasions and each time he was subsequently removed pursuant to the IJ's 1999 order. On February 16, 2011, Valdez-Novoa attempted to reenter the U.S. on foot at the San Ysidro Port of Entry. At trial, the government introduced a videotaped conversation between Valdez-Novoa and a Department of Homeland Security (DHS) officer in which Valdez-Novoa explained that he was attempting to cross the border using an identification document bearing another person's name that he had purchased in Mexico. He also confessed that he had been previously removed several times and that he had not requested permission to return to the U.S. Valdez-Novoa was convicted and sentenced to seventy months' imprisonment.

Valdez-Novoa raises two issues on appeal. First, he collaterally attacks the underlying June 11, 1999, removal order under 8 U.S.C. § 1326(d). He alleges that the IJ erred in concluding that he had been convicted of an aggravated felony and therefore violated his right to due process by failing to advise him of his apparent eligibility for voluntary departure relief. We hold that Valdez-Novoa was not denied due process because the IJ's determination that he had been convicted of an aggravated felony was not contrary to our precedent at the time the removal order was issued and was the product of a reasonable reading of the statute. Because Valdez-Novoa had been convicted of an aggravated felony, he was statutorily ineligible for voluntary departure, and the IJ was under no obligation to inform him of the existence of such relief for the proceedings to comport with due process. Alternatively, we hold that even if the IJ should have informed Valdez-Novoa of his apparent eligibility for voluntary departure, the failure to do so did not render the removal proceedings " fundamentally unfair" under § 1326(d)(3) because Valdez-Novoa was not prejudiced by the alleged error. We therefore conclude that the June 11, 1999, removal order is a valid predicate to a conviction for attempted illegal reentry in violation of § 1326(a).

Second, Valdez-Novoa contends that the government failed to introduce sufficient independent evidence to satisfy the corpus delicti rule. We hold that ample record evidence corroborates Valdez-Novoa's confession to the gravamen of the offense and

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establishes the trustworthiness of his statement to the DHS officer. For these reasons, the conviction based on Valdez-Novoa's videotaped confession does not run afoul of the corpus delicti doctrine.

I

A. Valdez-Novoa's Immigration and Criminal History

Valdez-Novoa arrived in the U.S. without inspection in 1983 when he was nine years old. He lived with his parents and eight siblings in California. Although Valdez-Novoa's parents and siblings eventually obtained legal status, he remained in the U.S. without documentation.

Over the next two decades, Valdez-Novoa accumulated a substantial criminal record. In 1992, he was convicted of misdemeanor driving under the influence and sentenced to probation. Two years later, he was convicted of misdemeanor disobeying a court order and sentenced to six days in jail and probation. Later that same year, Valdez-Novoa was again convicted of misdemeanor driving under the influence as well as misdemeanor driving with a suspended license and sentenced to twelve days in jail and probation. In 1996, he was convicted of felony assault likely to cause great bodily injury. According to the probation officer's report, Valdez-Novoa grabbed his ex-girlfriend by the hair and threw her onto the hood of his car. Valdez-Novoa then fought his ex-girlfriend's companion when he intervened. He was sentenced to 180 days in jail and three years' probation. His parole was twice revoked, and he served additional time in custody.

After his conviction for felony assault likely to cause great bodily injury, the Immigration and Naturalization Service (INS) served Valdez-Novoa with a notice to appear. The agency released him on bond pending his removal proceedings. In 1998, while awaiting his removal proceedings, Valdez-Novoa was convicted of felony reckless driving causing great bodily injury and misdemeanor driving with a suspended license. According to the police investigation report, Valdez-Novoa followed a car carrying two men whom he had been harassing, caused a collision by cutting in front of them, and then rammed their car until it flipped off the road. One of the victims experienced significant bleeding while Valdez-Novoa fled the scene. He was sentenced to two years' imprisonment.

Upon Valdez-Novoa's release from California state prison on June 11, 1999, an IJ deemed him removable and prohibited him from reentering the U.S. at any time because he had been convicted of an aggravated felony. The INS removed Valdez-Novoa to Mexico four days later, but Valdez-Novoa quickly returned to the U.S. A police officer who recognized Valdez-Novoa detained him, and, on January, 18, 2000, he was again removed to Mexico pursuant to the June 11, 1999 removal order. At some point within the next few months, Valdez-Novoa crossed the border again. On October 1, 2000, he was convicted of misdemeanor driving under the influence and sentenced to 150 days in jail and probation.

Upon being released from jail, Valdez-Novoa was removed to Mexico for the third time on May 16, 2001. Two years later, he was again arrested for misdemeanor driving under the influence and sentenced to eleven days in jail and probation. On October 3, 2003, Valdez-Novoa was removed to Mexico for the fourth time. He returned to the U.S., and seven days later, he was removed again.

In 2004, Valdez-Novoa was convicted of misdemeanor driving under the influence and sentenced to twenty days in jail and probation. In 2005, he was again convicted of misdemeanor driving under the influence and sentenced to fourteen days in jail

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and probation. And, in 2006, he was convicted of felony driving under the influence and misdemeanor driving with a suspended license and sentenced to thirty months' imprisonment.

On June 2, 2008, after he was released from California state prison, Valdez-Novoa was removed to Mexico. Once more he returned to the U.S., and, nine days later, he was removed for the seventh time. Valdez-Novoa soon reentered the U.S. again. In November 2008, he was convicted of felony transportation or sale of methamphetamine and sentenced to four years in federal prison. On January 18, 2011, Valdez-Novoa was released from prison and removed to Mexico pursuant to the original June 11, 1999, removal order.

B. The Attempted Illegal Reentry at Issue in This Case

On February 16, 2011, Valdez-Novoa once more attempted to return to the U.S. This time he was detained by Customs and Border Protection officials at the San Ysidro Port of Entry and indicted for attempted illegal reentry in violation of 8 U.S.C. § 1326(a). At trial, DHS Customs and Border Protection Officer Edgar Pascua testified that he was working in the secondary screening area at the San Ysidro Port of Entry on February 16, 2011. Pascua explained that he prepared a report stating that on that date he fingerprinted a man who matched Valdez-Novoa's profile in the Integrated Automated Fingerprinting Identification System.

Next, DHS Criminal Enforcement Officer Sue Curtis testified that she placed Valdez-Novoa under arrest and advised him of his Miranda rights. The government introduced a videotaped recording of Curtis's interview with Valdez-Novoa. During the interview, Valdez-Novoa stated that he had presented an identification document bearing the name Omar Parra-Sanchez. He explained that he had purchased the document from a woman in Tijuana, Mexico. Valdez-Novoa acknowledged that he understood that it is illegal to present another person's identification in order to gain entry into the U.S. He further admitted that he had been removed to Mexico about a month earlier and on other occasions dating back to 1999 and that he had not requested permission to reenter the U.S.

After the jury returned a guilty verdict, the district court entered judgment and sentenced Valdez-Novoa to seventy months' imprisonment. Valdez-Novoa timely appealed.

II

Valdez-Novoa's first argument on appeal is that the district court erred in denying his motion to dismiss the indictment on the basis that the June 11, 1999, removal order was invalid under 8 U.S.C. § 1326(d). We " review[] de novo the denial of a motion to dismiss an 8 U.S.C. § 1326 indictment when the motion to dismiss is based on alleged due process defects in an underlying deportation proceeding." United States v. Muro-Inclan, 249 F.3d 1180, 1182 (9th Cir. 2001).

A. Statutory Framework

A jury convicted Valdez-Novoa of violating 8 U.S.C. § 1326(a), which imposes criminal sanctions on " any alien who--(1) has been denied admission, excluded, deported, or removed . . . and thereafter (2) enters, attempts to enter, or is at any time found in, the United States, unless . . . the Attorney General has expressly consented." In § 1326(d), the statute offers a limited avenue by which the defendant can collaterally attack the underlying removal order that ...


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