133 F.3d 1194 (9th Cir. 1998), 97-10212, United States v. Zarate-Martinez

Docket Nº:97-10212, 97-10218.
Citation:133 F.3d 1194
Party Name:D.A.R. 421 UNITED STATES of America, Plaintiff-Appellee-Cross-Appellant, v. Jose Juan ZARATE-MARTINEZ, Defendant-Appellant-Cross-Appellee.
Case Date:January 13, 1998
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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133 F.3d 1194 (9th Cir. 1998)

D.A.R. 421

UNITED STATES of America, Plaintiff-Appellee-Cross-Appellant,

v.

Jose Juan ZARATE-MARTINEZ, Defendant-Appellant-Cross-Appellee.

Nos. 97-10212, 97-10218.

United States Court of Appeals, Ninth Circuit

January 13, 1998

        Argued and Submitted Dec. 12, 1997.

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        Maria C. Borbon, Rosemary Marquez, Assistant Federal Public Defender (oral argument), Tucson, AZ, for Defendant-Appellant-Cross-Appellee.

        John P. Leader, Assistant United States Attorney, Tucson, AZ, for Plaintiff-Appellee-Cross-Appellant.

        Before: ALDISERT, [*] D.W. NELSON and TASHIMA, Circuit Judges.

        ALDISERT, Circuit Judge:

        The appeal by Jose Juan Zarate-Martinez from judgment and sentence for a violation of 8 U.S.C. § 1326(b)(1), reentry after deportation subsequent to a felony conviction, requires us to decide if his due process rights were violated because he had no meaningful opportunity for judicial review of the underlying deportation order and whether he was denied equal protection because one of the cocaine convictions underlying his deportation resulted from California's unlawful failure to provide him with drug rehabilitation treatment. He entered a conditional guilty plea subject to our review of his claims of constitutional violations.

        We must consider also the cross-appeal of the government that the district court erred in reducing the offense from an "aggravated felony" charge under § 1326(b)(2) to the lesser included reentry offense under § 1326(b)(1). We affirm the judgment on Zarate-Martinez' appeal, but on the cross-appeal we vacate the judgment and sentence and remand with a direction that the district court reinstate the aggravated felony charge under § 1326(b)(2) and permit Zarate-Martinez to plead anew to the reinstated indictment.

       I.

        Zarate-Martinez first entered the United States when he moved with his family to Los Angeles in 1981. He was 13 at the time. Subsequent to his arrest by California authorities in January 1993 for possession of 0.66 grams of cocaine, Zarate-Martinez was convicted in Superior Court of possession of a controlled substance and sentenced to three years probation and 365 days in prison. In August 1993 he ran afoul of state law again. He was arrested for possession of 2.15 grams of cocaine, and again was convicted of possession of a controlled substance. He was sentenced to three years probation and 100 days in prison. In September 1993,

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his probation was revoked and he was sentenced to two additional years in prison. He was paroled in October 1994.

        Upon his release, the Immigration and Naturalization Service immediately sought to deport him. He attended a mass deportation hearing in El Centro, California on October 6, 1994. There, the immigration judge addressed 22 potential deportees as a group and Zarate-Martinez individually before determining that he was deportable. He was thereafter deported to Mexico. A mere three months later, on January 12, 1996, Zarate-Martinez was arrested by federal authorities after illegally reentering the United States through a hole in a fence near Nogales, Arizona. He was indicted and charged with violating 8 U.S.C. § 1326(b)(2), illegal reentry after deportation subsequent to an aggravated felony conviction. Zarate-Martinez made motions to dismiss alleging, inter alia, that: (1) he had not been convicted of an aggravated felony; (2) the unlawfulness of the underlying deportation was a due process bar to his conviction; and (3) he had been denied equal protection by California's failure to provide him substance abuse treatment following his first drug conviction in January 1993.

        The district court concluded that Zarate-Martinez' prior conviction for possession of cocaine was not an aggravated felony. Rather than dismiss the indictment, the court reduced the charge to a violation of 8 U.S.C. § 1326(b)(1), reentry after deportation subsequent to a felony conviction.

        The district court denied Zarate-Martinez' motion to dismiss based on unlawful deportation, holding that he had failed to show prejudice. The district court did not address the equal protection issue. On March 5, 1997, Zarate-Martinez entered a conditional guilty plea to violating § 1326(b)(1) and was sentenced to 24 months imprisonment and 36 months supervised release.

       II.

        In a criminal prosecution under § 1326, the Due Process Clause of the Fifth Amendment requires a meaningful opportunity for judicial review of the underlying deportation. United States v. Mendoza-Lopez, 481 U.S. 828, 839, 107 S.Ct. 2148, 2155-2156, 95 L.Ed.2d 772 (1987). If the defendant's deportation proceedings fail to provide this opportunity, the validity of the deportation may be collaterally attacked in the criminal proceeding. Id. Zarate-Martinez can succeed in this collateral challenge only if he is able to demonstrate that: (1) his due process rights were violated by defects in his underlying deportation proceeding, and (2) he suffered...

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