USA. v. Beltran, CORRALES-BELTRA

• Decision Date: 04 May 1999
• Docket Number: No. 98-50595,D,CORRALES-BELTRA,98-50595
• Citation: 192 F.3d 1311
• Parties: (9th Cir. 1999) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. JOSE DONATOefendant-Appellant
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1311

192 F.3d 1311 (9th Cir. 1999)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. JOSE DONATO CORRALES-BELTRAN, Defendant-Appellant.

No. 98-50595

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted May 4, 1999--Pasadena, California

Decided October 6, 1999

Benjamin L. Coleman, Federal Public Defenders of San Diego, Inc., San Diego, California, for the defendant appellant.

Jonah H. Goldstein and Sam T. Liccardo, Assistant United States Attorneys, San Diego, California, for the plaintiff appellee.

Appeal from the United States District Court for the Southern District of California; Howard B. Turrentine, District Judge, Presiding. D.C. No. CR-98-00030-HBT.

Before: Melvin Brunetti, Kim McLane Wardlaw, Circuit Judges, and John W. Sedwick,¹ District Judge.

WARDLAW, Circuit Judge:

We are asked to review a collateral challenge to a prior deportation order and to determine the applicable sentencing guideline for a violation of 8 U.S.C. S 1326(a). Jose Donato Corrales-Beltran was convicted of attempting to reenter the United States after being deported in violation of 8 U.S.C. S 1326(a). The district court denied his motion to dismiss the indictment, ruling that the Immigration Judge's failure to advise Corrales-Beltran of his right to appeal the bail amount did not render his prior 1991 deportation order constitutionally defective. Corrales-Beltran appeals this denial and challenges the district court's application of United States Sentencing Guideline ("U.S.S.G.") S 2L1.2 to his conviction, arguing that because he failed in his attempt to enter, the district court should have sentenced him under U.S.S.G. S 2X1.1, the guideline for attempt crimes. We have jurisdiction under 28 U.S.C. S 1291 and 18 U.S.C.S 3742(a), and we affirm.

I.

We review de novo Corrales-Beltran's claim that defects in the underlying deportation procedure invalidated the proceeding for use in his criminal proceedings. See United States v. Leon-Leon, 35 F.3d 1428, 1430 (9th Cir. 1994) (citing United States v. Proa-Tovar, 975 F.2d 592, 594 (9th Cir. 1992) (en banc)). We also review de novo the district court's interpretation of the Sentencing Guidelines. See United States v. Fuentes-Barahona, 111 F.3d 651, 652 (9th Cir. 1997).

II.

On March 27, 1991, Corrales-Beltran appeared before an Immigration Judge in deportation proceedings. The Immigration Judge reset the deportation hearing after Corrales-Beltran stated that he wished to procure the services of a lawyer. Before the hearing was adjourned, Corrales-Beltran inquired of the Immigration Judge as to his bail status, and was told that bail was set at $15,000. The deportation proceeding was reopened later that day when Corrales-Beltran indicated that he wished to proceed without a lawyer. During the hearing, Corrales-Beltran stated that he immigrated to the United States from Mexico on October 29, 1973, and admitted that on December 7, 1981, he was convicted of possession of heroin in violation of 21 U.S.C. S 844. The Immigration Judge then asked Corrales-Beltran whether he accepted the $15,000 bail amount or wanted a bond hearing. Corrales-Beltran requested a hearing and reiterated that he wished to proceed without an attorney. Bail was reset at $8,000. The Immigration Judge then inquired whether Corrales-Beltran wished to proceed with the deportation hearing or "bond out on the reduced bond." Corrales-Beltran responded that he did not have the money to bond out, and therefore, that he wished to proceed.

The Immigration Judge then informed Corrales-Beltran that the government contended that he was deportable and could lose his permanent resident status because of his prior conviction of a controlled substance offense. The Immigration Judge also informed Corrales-Beltran that he was eligible for a waiver of deportation pursuant to section 212(c) of the Immigration and Naturalization Act ("INA").² Corrales-Beltran stated that he wished to apply for a waiver. The Immigration Judge then set the case for a section 212(c) hearing on April 10, 1991.³

At the April 10, 1991, hearing, the Immigration Judge noted that Corrales-Beltran remained unrepresented and informed him that he would need people to testify or write letters in support of his section 212(c) application. The Immigration Judge also inquired as to how much time Corrales-Beltran would need to gather such evidence for presentation at the hearing. The following dialogue ensued:

C-B: You see from here, I cannot do anything.

IJ: Well, sir, the telephone is about the only thing you can do. You have already had a bond hearing and the bond amount has been set for your release. If you can't bond out and can't be released because of the money that you are unable to put up to be released, you will have to do it by telephone and that is why I am asking you, sir. Because, of course, you sit in custody until we are ready for the hearing. And I certainly do not want you to stay in custody any longer than you have to. C-B: I would like it if you could lower the bond and, if you cannot, then just to sign the papers and renounce.

IJ: And what, renounce? When you say renounce, sir, I think I know what the word means, but when you say renounce, do you mean, you renounce or give up your permanent residence, is that what you are telling me?

C-B: Yes, because you see there are a lot of problems and it's been a long time already with this problem.

The Immigration Judge did not lower the bail amount. Instead, he offered to immediately schedule the section 212(c) hearing. Corrales-Beltran accepted the offer. Twenty-three days later, on May 3, 1991, the section 212(c) hearing was held. The Immigration Judge denied the application for waiver of deportation and advised Corrales-Beltran of his right to appeal the denial of his section 212(c) application.

Although Corrales-Beltran originally expressed a desire to appeal the denial of his section 212(c) application, he later recanted, stating, "I don't want to be detained any longer so that if I am going to be deported I'd rather it be done now." The Immigration Judge then explained: "The Board of Immigration Appeals may reverse me and you won't be deported. But until your appeal is decided, you will be held in custody on an $8,000 [sic], unless of course the government determines to raise the bond, which the district director has the right to do, but I will not consider that unless that is done." Corrales-Beltran then asked, "Is there any possibility that the bond can be lowered more?" The Immigration Judge replied: "I see no purpose in reducing the bond. In fact, after having reviewed your case, I would probably raise the bond at this point, but I am not about to lower it." Corrales-Beltran then indicated that he wished to be deported as soon as possible. Upon Corrales-Beltran's change of heart, the Immigration Judge proceeded to fully advise Corrales-Beltran of his right to appeal the S 212(c) waiver and the consequences of failing to do so:

IJ: Well, sir, I want you to understand, however, that I can appreciate what you're saying, that you want to waive it. But, if the only reason you want to waive it is because you want to get out of jail or out of custody, I want you to understand that you won't have a right to come back here later and say I've changed my mind, I want to appeal the case. Once you're deported sir, you've lost your permanent residence. So, I want you to understand sir, that if you waive the appeal today and it's merely because you want to get out ofcustody and be deported to Mexico, that consequence of that waiving the appeal would be to lose your permanent residence. Do you understand that sir?

C-B: Well, as I understood it, either way I've lost it.

IJ: No, sir. As I've said that's why they have appeals of my decisions. I may be wrong, I may be reversed. And that's why you take an appeal, sir. And if you convince the Board of Immigration of Appeals that I am wrong, they'll permit you to stay here as a permanent resident. Until they make that decision, of course, you will be held in custody unless you post a bond. Now, with that explanation again, sir, are you still telling me that you've changed your mind and you accept my decision or do you still reserve the appeal and take that appeal as you indicated earlier.

C-B: I don't want to appeal because there's so many things that you're talking about that don't relate to me and I want to get it over with.

IJ: Sir, I have no idea what you mean that doesn't relate to you, what do you mean, sir?

C-B: Many of the things on there . . . .

IJ: But sir let's get back to your issues before me. Are you still determined at this time to waive appeal? You no longer wish to take an appeal?

C-B: No, I'm tired of being in detention. I want to get out.

IJ: So I gather sir you're telling me that you waive appeal at this point and that all you wish to be is deported back to Mexico. Is that correct?

C-B: Yes, because I feel maybe there later going to be another way that I can gain this back.

IJ: You mean your permanent residence?

C-B: Yes, because as I understand it that if five years go by, I can try again.

IJ: Well, sir, I want to tell you so that there's no misconception. The answer is no. Under the current laws of this country because of your conviction for a narcotics offense there is no waiver. Five years from now or anytime from now under the present law that would permit you to legally come back to this country.

C-B: Well if at any time I can hire an attorney and he can prove that all these things are not true what would happen?

IJ: Sir, I don't speculate as to what's going to happen. I only want you to understand that if you waive your appeal today, once you are deported, sir, you have lost your permanent residence, and to my knowledge under the present laws of this country, there's nothing you can do to come back here legally. Do you understand that?

C-B: Thank you, yes.

IJ: Well with that further...