USA. v. Garcia

• Citation: 210 F.3d 973
• Decision Date: 14 April 2000
• Docket Number: CORONA-GARCI,D,No. 98-50568,98-50568
• Parties: (9th Cir. 2000) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. BENJAMINefendant-Appellant
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 973

210 F.3d 973 (9th Cir. 2000)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. BENJAMIN CORONA-GARCIA, Defendant-Appellant.

No. 98-50568

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted November 2, 1999

Filed April 14, 2000

COUNSEL: Richard M. Barnett, San Diego, California, for the defendant appellant.

Bruce R. Castetter, Assistant United States Attorney and Carol C. Lam, Assistant United States Attorneys, San Diego, California, for the plaintiff-appellee.

Appeal from the United States District Court for the Southern District of California; Jeffrey T. Miller, District Judge, Presiding. D.C. No. CR-98-00999-1-JTM

Before: Myron H. Bright,^* Stephen Reinhardt, and Stephen S. Trott, Circuit Judges.

Opinion by Judge Bright; Dissent by Judge Reinhardt

BRIGHT, Circuit Judge:

A jury convicted Benjamin Corona-Garcia of reentering the United States after he had been previously deported, a violation of 8 U.S.C. S 1326(a). Corona-Garcia appeals and challenges both his conviction and sentence. Although we uphold Corona-Garcia's conviction because he was entitled to neither substitution of counsel nor judgment of acquittal, as he argues, we nevertheless agree with Corona-Garcia's contention that he was entitled to a three-level sentencing reduction for acceptance of responsibility rather than the two-level reduction he received. As a result, we VACATE his sentence and REMAND.

I. BACKGROUND

Benjamin Corona-Garcia ("Corona-Garcia") is a native and citizen of Mexico. While incarcerated in California for state crimes, the INS interviewed Corona-Garcia as part of an "Institutional Hearing Program" in which suspected criminal aliens are subjected to questioning. In his interview with an INS officer, and without the benefit of Miranda , CoronaGarcia admitted that: (1) he is a Mexican citizen; (2) he had previously been deported to Mexico from the United States; (3) he reentered the United States near Calexico, California, by "jumping the fence" sometime in April 1997; and (4) he had neither sought nor received permission to reenter the United States. See Trial Tr. at 59.

When Corona-Garcia was eventually paroled by the state, he was transferred to the custody of the INS. On March 23 1998, while housed in an INS detention center in San Diego, Corona-Garcia was interviewed by a second INS investigator, Special Agent Welch. Agent Welch informed Corona-Garcia of his rights: She read him the standard Miranda warnings from a pre-printed card, both in English and in Spanish, and insured his understanding by asking for explicit affirmative responses after each line of written text. Corona-Garcia acknowledged that he understood his rights, and then he again confessed that he is a citizen of Mexico, that he had been deported, and that after this deportation he entered the United States near Calexico without inspection or permission. See id. at 109-10. Based on this confession, Agent Welch referred the case to the United States Attorney for prosecution.

On March 31, 1998, a grand jury indicted Corona-Garcia and alleged that:

On or about April 1997, within the Southern District of California, defendant BENJAMIN CORONAGARCIA, an alien, after having been deported and removed from the United States to Mexico, through the Port of Entry, Calexico, California, on or about December 16, 1996, entered in San Diego County, without the Attorney General of the United States having expressly consented to the defendant's reapplication for admission into the United States; in violation of Title 8, United States Code, Section 1326.

E.R. at 1-2 (emphasis added).

Subsection (a) of 8 U.S.C. S 1326, titled "Reentry of removed aliens," states in relevant part that:

Subject to subsection (b) of this section, any alien who--

(1) has been denied admission, excluded, deported, or removed or has departed the United States while an order of exclusion, deportation, or removal is outstanding, and thereafter

(2) enters, attempts to enter, or is at any time found in, the United States, unless . .. the Attorney General has expressly consented to such alien's reapplying for admission . . . [shall be subject to criminal penalties].

8 U.S.C. S 1326 (1999) (emphasis added).

On the morning of trial, with a pool of prospective jurors waiting to be impaneled, Corona-Garcia moved for substitution of counsel. The district court promptly held a sealed, ex parte proceeding (subsequently unsealed) at which Corona Garcia's counsel informed the court that, although he was prepared for trial, he and his client disagreed on undisclosed matters of trial strategy. Addressing the court, Corona-Garcia indicated that he was confused, upset, and failing to communicate with his lawyer. After extensive efforts to elicit further information from both Corona-Garcia and his lawyer, the district court found that the basis offered for substituting counsel was inadequate and presented a substantial likelihood of inconvenience and delay. On that basis, the court denied the motion.

After opening arguments, Corona-Garcia moved to suppress his confessions. The district court heard extended argument on the question and agreed that the INS took Corona Garcia's first admission in violation of his Fifth Amendment rights. The court suppressed the confession on that basis. However, with respect to his second admission, the court found that Corona-Garcia's confession to Agent Welch was made under conditions which complied with Miranda. As a result, the court ruled that Corona-Garcia's confession to Agent Welch could be presented to the jury.

During trial, the government introduced several documents from Corona-Garcia's INS file. These documents showed that Corona-Garcia had been found deportable by an immigration judge in November 1996, see Ex. 3, and that he had in fact been deported at the Calexico border station in December 1996 pursuant to a Warrant of Deportation. See Ex. 4. The government also introduced a so-called "Certificate of NonExistence." See Ex. 6. This certificate showed that the INS conducted a search of both its automated and non-automated records and, after so doing, found no records pertaining to any applications for permission to reenter the United States by Corona-Garcia subsequent to his 1996 deportation.

Testimony was also given by several witnesses. Torres, a fingerprint expert from the San Diego Police Department, testified that the fingerprint card attached to Corona-Garcia's 1996 Warrant of Deportation matched a fingerprint exemplar taken from Corona-Garcia a few days before trial. McCormack, an immigration enforcement officer, testified that he witnessed Corona-Garcia's physical deportation at the Calexico border station on December 16, 1996. Carvajal, an INS agent, testified about the nature and contents of several of the INS documents introduced as exhibits, including the Certificate of Non-Existence. Finally, and most importantly, Agent Welch testified to the form and content of her interview with Corona-Garcia.

At the close of the government's evidence, and arguing that it had failed to show that he entered the United States illegally, Corona-Garcia moved for judgment of acquittal under Rule 29. After extended argument on this contention, the district court concluded that adequate evidence had been presented by the government for a jury to find all of the elements of a S 1326 violation beyond a reasonable doubt,¹ and specifically that Corona-Garcia had entered the United States. On that basis, the court denied the motion.

Corona-Garcia presented no witnesses and offered no evidence beyond several INS documents introduced as defense exhibits during cross-examination. After brief deliberations, the jury returned a verdict of guilty. On August 25, 1998, the district court sentenced Corona-Garcia to eighty-four months in prison. This sentence was at the bottom of the guideline range for an offender with a criminal history score of 23 and an offense level of 22. The district court reached this offense level calculation, in part, because it granted Corona-Garcia a two level reduction under United States Sentencing Guidelines ("U.S.S.G.") S 3E1.1(a) for acceptance of responsibility. However, the court refused to grant an additional one-level reduction under U.S.S.G. S 3E1.1(b)(1). Although Corona Garcia argued that he was entitled to this further reduction because he confessed fully even before the onset of his prosecution, the district court reasoned that an additional one-point reduction under S 3E1.1(b)(1) was not proper because "[t]here was no timely notice of a plea of guilty nor was there a plea of guilty." Sent. Tr. at 192.

On August 31, 1998, Corona-Garcia timely appealed to this court. He now asserts three errors.

II. DISCUSSION

A. Substitution of Counsel.

Corona-Garcia argues that the district court erroneously denied his motion for substitution of counsel. We review the denial of such motions for abuse of discretion. See United States v. Castro, 972 F.2d 1107, 1109 (9th Cir. 1992).

We focus on three considerations when addressing whether a defendant was wrongly denied the opportunity to substitute counsel: first, we consider whether the district court's inquiry on the matter was adequate; second, we study the extent of the conflict between the defendant and his counsel; and third, we weigh the timeliness of the motion against any inconvenience or delay that would result from granting the motion. See United States v. D'Amore, 56 F.3d 1202, 1204-05 (9th Cir. 1995), overruled on other grounds by United States v. Garrett, 179 F.3d 1143, 1145 (9th Cir. 1999) (en banc). In this case, it is clear that these considerations incline sharply toward refusing Corona-Garcia's motion for substitution of counsel.

First, when Corona-Garcia moved for substitution of counsel, the court immediately suspended the proceedings, cleared the courtroom, and held an ex parte hearing on the motion. At this hearing, the court inquired...