United States v. Peralta-Sanchez, 020717 FED9, 14-50393

Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
Attorney:Dissenting, Judge Pregerson would hold that there is a due process right to counsel during expedited removal proceedings. Kara Hartzler (argued), San Diego, California, for Defendant-Appellant. Michelle L. Wasserman (argued), San Diego, California, for Plaintiff-Appellee.
Judge Panel:Before: Harry Pregerson, Jay S. Bybee, and N. Randy Smith, Circuit Judges. PREGERSON, Circuit Judge, dissenting:
Opinion Judge:BYBEE, Circuit Judge.
Party Name:United States of America, Plaintiff-Appellee, v. Rufino Peralta-Sanchez, Defendant-Appellant.
Case Date:February 07, 2017
Docket Nº:14-50393, 14-50394
 
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United States of America, Plaintiff-Appellee,

v.

Rufino Peralta-Sanchez, Defendant-Appellant.

Nos. 14-50393, 14-50394

United States Court of Appeals, Ninth Circuit

February 7, 2017

          Argued and Submitted May 4, 2016 Pasadena, California

         Appeal from the United States District Court for the Southern District of California D.C. No. 3:12-cr-03370-LAB-1 Larry A. Burns, District Judge, Presiding

          Dissenting, Judge Pregerson would hold that there is a due process right to counsel during expedited removal proceedings.

          Kara Hartzler (argued), San Diego, California, for Defendant-Appellant. Michelle L. Wasserman (argued), San Diego, California, for Plaintiff-Appellee.

          Before: Harry Pregerson, Jay S. Bybee, and N. Randy Smith, Circuit Judges.

         SUMMARY[*]

         Criminal Law

         The panel affirmed a conviction and sentence for illegal entry, and the revocation of supervised release, in a case in which the defendant argued that his expedited removal was fundamentally unfair, and cannot serve as the basis of the illegal reentry count, because he was neither entitled to hire counsel nor advised of his right to apply for withdrawal of his application for admission.

         The panel held that the defendant had no Fifth Amendment due process right to hire counsel in the expedited removal proceeding under 8 U.S.C. § 1225, and that he cannot demonstrate prejudice from the failure to notify him of the right to withdraw his application for admission under 8 U.S.C. § 1225(a)(4). As a result, the panel concluded that the defendant's 2012 expedited removal could be used as a predicate for his illegal reentry conviction, and affirmed the denial of the defendant's motion to dismiss the indictment and the subsequent judgment and sentence as well as the revocation of his supervised release.

          OPINION

          BYBEE, Circuit Judge.

         Rufino Peralta-Sanchez (Peralta) was convicted of illegal entry in violation of 8 U.S.C. § 1325 and illegal reentry in violation of 8 U.S.C. § 1326. The predicate for his illegal reentry count was his expedited removal in 2012. Peralta argues that his expedited removal was fundamentally unfair and thus cannot serve as the basis of the illegal reentry count, because he was neither entitled to hire counsel nor advised of his right to apply for withdrawal of his application for admission. We find that Peralta had no Fifth Amendment due process right to hire counsel1 in the expedited removal proceeding and that he was not prejudiced by the government's failure to inform him of the possibility of withdrawal relief. Concluding that his 2012 expedited removal was not fundamentally unfair, we affirm his § 1326 conviction and sentence for illegal reentry. Because the revocation of his supervised release was premised on the § 1326 conviction, we affirm the district court's revocation as well.

         I. FACTS AND PROCEEDINGS

         A.

The Facts

         On March 7, 2014, at approximately 11:20 p.m., video surveillance along the U.S.-Mexico border spotted two individuals hiding in the brush about one mile north of the border. U.S. Border Patrol agents spent four to five hours tracking fresh footprints, which ultimately led the agents to Rufino Peralta-Sanchez and his companion, who were by that time approximately six miles from the border. A Border Patrol agent conducted a field interview, during which Peralta admitted to being a Mexican citizen without documents permitting him to enter or remain in the United States. The agents gave Peralta a Miranda warning, and Peralta agreed to talk and to waive his right to counsel. In a post-arrest interview, he stated that he was a citizen of Mexico; had no documents allowing him to enter or remain in the United States; had entered the United States illegally on March 7, 2014; had been previously deported from the United States; and had crossed the border from Mexico in order to travel to Fresno, California. Peralta was eventually charged with one count of improper entry by an alien, 8 U.S.C. § 1325, and one count of being a removed alien found in the United States, 8 U.S.C. § 1326. At the time of his arrest, he was still on supervised release for his most recent felony conviction for reentering the United States illegally.

         Peralta first entered the United States in 1979 at the age of twenty. He obtained legal status in 1986 and became a lawful permanent resident (LPR) in December 1990. Between 1990 and 2000, he maintained a relationship with a woman with whom he has three U.S. citizen children. Peralta's criminal history, including a history of immigration offenses, is extensive. In 1982, Peralta was arrested in Bakersfield, California, under the name Gabriel Sanchez for arson, although these charges were eventually dismissed. He was arrested in 1983 under the same name, again for arson. In 1990, he was arrested in Fresno under the name Rufino Peralta-Sanchez for giving a false identification to a peace officer. Between 1990 and 1996, Peralta collected a string of driving under the influence (DUI) convictions: five misdemeanor convictions and a 1996 felony DUI conviction for which he was sentenced to 16 months in prison. As a result of the 1996 felony DUI conviction, the then-Immigration and Naturalization Service (INS) issued Peralta a Notice to Appear, charging him as removable for having been convicted of an aggravated felony "crime of violence." Peralta was ordered removed on June 7, 1999.

         Peralta returned regularly to the United States. In January 2000, he was again convicted of felony DUI, as well as possession of cocaine, for which he was sentenced to 28 months in prison. Following this conviction, Peralta was convicted of misdemeanor illegal reentry. After serving his sentence, Peralta's 1999 removal order was reinstated in December 2001, and he was again removed from the United States. Undeterred, Peralta entered the United States again and was convicted of felony reentry in October 2002, for which he received 30 months in prison. After serving this sentence, his 1999 order of removal was again reinstated in July 2004, and he was again removed from the United States. After another illegal reentry, the 1999 deportation order was again reinstated on May 23, 2012, and Peralta was again removed. Three days later, Peralta was again apprehended by Border Patrol agents one mile north of the border, hiding in the brush with two others.2 He immediately admitted to being a Mexican citizen with no legal documents to enter the United States and, in a post-arrest interview, admitted that he had entered the United States by walking through the desert with the intent to travel to Los Angeles to find work. On July 17, 2012, Peralta was charged with and convicted of misdemeanor illegal reentry and sentenced to time served. He was ordered removed via expedited removal proceeding and removed on July 18. On July 22, Peralta returned again, was arrested, and in November 2012, was convicted of felony illegal reentry and sentenced to 21 months in prison. He was removed on January 30, 2014, and returned on March 7, 2014, bringing us back to this case, which arises out of Peralta's arrest on March 8, 2014.3

         B. The Proceedings

         As a result of his March 2014 arrest, Peralta was charged with improper entry into the United States under 8 U.S.C. § 1325 (count one) and with being a removed alien found in the United States in violation of 8 U.S.C. § 1326 (count two). Peralta moved to dismiss count two, arguing that his underlying 1999 and 2012 removal orders violated due process. Peralta argued that his original 1999 removal was invalid because felony DUI is no longer considered a crime of violence.4 He also argued that his July 2012 expedited removal was invalid because he was deprived of his purported due process rights to counsel in an expedited removal proceeding and to be informed of his right to seek withdrawal of his application for admission to the United States.

         The district court initially rejected Peralta's argument regarding his 1999 removal and denied the motion to dismiss count two of the indictment. It found that Peralta had suffered no due process violation, and that if he had, he suffered no prejudice because he did not qualify for any discretionary relief. Peralta was convicted on both counts of the indictment following a bench trial. He then filed a motion to reconsider the dismissal of count two. The district court denied the motion. However, in light of our then-recent decision in United States v. Aguilera-Rios, 754 F.3d 1105 (9th Cir. 2014), as amended, 769 F.3d 626, in which we held that intervening higher authority should be retroactively applied in determining whether an alien was deportable as charged, the district court concluded that Aguilera-Rios called into question the validity of the 1999 removal order. Nevertheless, the district court denied the motion to dismiss because Peralta's 2012 ...

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