249 F.3d 1180 (9th Cir. 2001), 00-50016, United States v. Muro-Inclan

Docket Nº:00-50016
Citation:249 F.3d 1180
Case Date:May 08, 2001
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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249 F.3d 1180 (9th Cir. 2001)




No. 00-50016

United States Court of Appeals, Ninth Circuit

May 8, 2001

Argued and Submitted February 15, 2001

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Maria Elena Stratton, Federal Public Defender, Richard D. Burda, Deputy Federal Public Defender, Los Angeles, California, for the appellant.

Timothy Searight, Assistant United States Attorney, Los Angeles, California, for the appellee.

Appeal from the United States District Court for the Central District of California David O. Carter, District Judge, Presiding. D.C. No. CR-99-10 DOC

Before: A. Wallace Tashima and Raymond C. Fisher, Circuit Judges, and Thomas Zilly, District Judge.1

Zilly, District Judge

Appellant Juan Manuel Muro-Inclan appeals the district court's denial of his motion to dismiss the indictment. Appellant argues that he could not be convicted under 8 U.S.C. §§ 1326 as an illegal alien found in the United States following deportation because his due process rights were violated at his prior deportation proceedings. We affirm.


On February 2, 1999, Appellant Juan Manuel Muro-Inclan was indicted on one count of Illegal Alien Found in the United States Following Deportation in violation of 8 U.S.C. §§ 1326. On May 27, 1999, Appellant filed a Motion to Dismiss Charge Based On Unlawful Deportation Hearings. In the motion, Appellant argued that the underlying deportation proceedings were invalid because he had never been informed of his possible eligibility for a waiver of deportation under 8 U.S.C. 1182(h)(a "212(h) waiver"), and therefore the deportation proceedings violated his due process rights. On June 23, 1999, the District Court held a hearing on the motion, and on June 25, 1999, the court issued a written Order denying the motion. Appellant then entered a conditional guilty plea, reserving his right to appeal the denial of the motion to dismiss. At sentencing, Appellant received a 16 point enhancement based on prior aggravated felony convictions,

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and he was sentenced to 77 months incarceration.

Appellant then filed the present appeal of the denial of his motion to dismiss. He has also filed a supplemental brief arguing for the first time on appeal that his sentence of 77 months violates Apprendi v. New Jersey, 120 S.Ct. 2348 (2000). Appellant alleges that Apprendi was violated because his sentence was enhanced based on prior aggravated felony convictions that were neither admitted nor submitted to a jury and proven beyond a reasonable doubt.


Appellant was brought to the United States by his parents as an infant. In 1984, he married a United States citizen, and they have three children who are United States citizens. Appellant's parents are lawful permanent residents of the United States. Appellant has never achieved lawful permanent resident status. He has been deported from the United States on five separate occasions.


A. Due process requirements.

The Court of Appeals reviews 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. See United States v. Garza-Sanchez, 217 F.3d 806, 808 (9th Cir. 2000), citing United States v. Proa-Tovar, 975 F.2d 592, 594 (9th Cir. 1992)(en banc).

8 U.S.C. §§ 1326 prohibits any alien from entering the United States after he has "been denied admission, excluded, deported or removed[.]" 8 U.S.C. §§ 1326(a). The maximum sentence is two years unless the removal was subsequent to criminal convictions. A 10 year maximum sentence applies if removal followed "commission of three or more misdemeanors involving drugs, crimes against the person, or both, or a felony[.]" 8 U.S.C. §§ 1326(b)(1). A 20 year maximum sentence applies if removal followed "conviction for commission of an aggravated felony[.]" 8 U.S.C. §§ 1326(b)(2).

In a criminal prosecution under 8 U.S.C. §§ 1326, "the Due Process Clause of the Fifth Amendment requires a meaningful opportunity for judicial review of the underlying deportation." United States v. Arrieta, 224 F.3d 1076, 1079 (9th Cir. 2000), quoting United States v. Zarate-Martinez, 133 F.3d 1194, 1197 (9th Cir. 1998). Therefore, "the validity of the deportation may be collaterally attacked in the criminal proceeding." Arrieta, 224 F.3d at 1079. Such a collateral attack will only succeed where the defendant demonstrates that "(1) his due process rights were violated by defects in his underlying deportation proceeding, and (2) he suffered prejudice as a result of the defects." Id.

However, an alien is barred from collaterally attacking an underlying deportation order "if he validly waived the right to appeal that order" during the deportation proceedings. Arrieta, 224 F.3d at 1079, citing United States v. Estrada-Torres, 179 F.3d 776, 780-81 (9th Cir. 1999). "In order for the waiver to be valid, however, it must be both `considered and intelligent.' " Arrieta, 224 F.3d at 1079, citing United States v. Mendoza-Lopez, 481 U.S. 828, 840 (1987). Such a waiver is not "considered and intelligent" when "the record contains an inference that the petitioner is eligible for relief from deportation," but the Immigration Judge fails to "advise the alien of this possibility and give him the opportunity to develop the issue." Arrieta 224 F.3d at 1079, quoting Moran-Enriquez v. INS, 884 F.2d 420, 422-23 (9th Cir. 1989).

Appellee asserts, and the district court agreed, that Appellant is barred from pursuing his due process claim because he did

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not seek administrative review of his previous deportation orders, and therefore has not met the requirement of 8 U.S.C. §§ 1326(d) to exhaust administrative remedies. The district judge concluded that because Appellant waived his right to appeal at the 1995, 1996, and 1997 deportation hearings he failed to exhaust administrative remedies.

However, as discussed directly above, due process requires that such a waiver of appeal be "considered and intelligent." Arrieta, 224 F.3d at 1079. The exhaustion requirement of 8 U.S.C.§§ 1326(d) cannot bar collateral review of a deportation proceeding when the waiver of right to an...

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