U.S. v. Aranda-Hernandez, ARANDA-HERNANDE

• Decision Date: 30 August 1996
• Docket Number: D,ARANDA-HERNANDE,No. 95-3184,95-3184
• Citation: 95 F.3d 977
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Trinidadefendant-Appellant. Tenth Circuit
• Court: U.S. Court of Appeals — Tenth Circuit

Page 977

95 F.3d 977

UNITED STATES of America, Plaintiff-Appellee, v. Trinidad ARANDA-HERNANDEZ, Defendant-Appellant.

No. 95-3184.

United States Court of Appeals,Tenth Circuit.

Aug. 30, 1996.

Timothy J. Henry, Assistant Federal Public Defender (David J. Phillips, Federal Public Defender, with him on the brief), Wichita, Kansas, for Defendant-Appellant.

Brian R. Johnson, Special Assistant United States Attorney (Randall K. Rathbun, United States Attorney, with him on the brief), Wichita, Kansas, for Plaintiff-Appellee.

Before ANDERSON, McKAY, and JONES, ^* Circuit Judges.

NATHANIEL R. JONES, Senior Circuit Judge.

I.

Defendant Trinidad Aranda-Hernandez (hereinafter Aranda) appeals his conviction and sentence for illegal reentry into the United States after deportation, in violation of 8 U.S.C. § 1326. We affirm.

In 1984, Aranda was convicted of possessing marihuana with the intent to distribute and was subsequently deported to Mexico. After his deportation, Aranda returned to the United States. On August 2, 1994, Aranda was arrested and detained in Kansas by officials of the Immigration and Naturalization Service (INS) for illegally reentering the United States. Aranda was charged by Information with illegal reentry after deportation on August 5, 1994. Aranda did not waive his right to indictment.

At the detention hearing and arraignment, held August 15, 1994, Aranda moved to dismiss the Information and requested a preliminary examination pursuant to Federal Rules of Criminal Procedure 5(c) and 5.1. The magistrate concluded she did not have the authority to rule on Aranda's motion and referred the matter to the district court. Aranda remained in custody.

On August 24, 1994, a grand jury returned an Indictment against Aranda on the same charge contained in the Information. The district court then dismissed as moot Aranda's motion to dismiss the Information and motion for a preliminary examination. On December 23, 1994, Aranda filed a motion to dismiss the Indictment based upon an alleged illegality in his deportation proceeding and another motion for a preliminary examination.

Between the United States' response to Aranda's motions and the scheduled hearing, Aranda entered into plea negotiations. On January 30, 1995, Aranda entered a conditional plea of guilty, preserving for appeal the issues he raised in his pretrial motions. Aranda's plea was also conditioned on the determination of whether his 1984 conviction, which was the subject of his initial deportation proceeding, was an aggravated felony qualifying him for a sixteen- level sentencing guideline enhancement under U.S.S.G. § 2L1.1.

Aranda was sentenced on May 23, 1995. The district court determined that Aranda's past conviction was an aggravated felony which warranted the sixteen-level enhancement. Aranda was sentenced to the statutory maximum sentence of 60 months. Aranda then filed this timely appeal.

II.

A.

Aranda argues that the magistrate erred by not dismissing the Information filed against him because the government initiated his felony prosecution by information rather than by indictment. See Fed.R.Crim.P. 7(a) (effectuating Fifth Amendment requirement that "[n]o person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury"). Aranda contends that until the Indictment was returned, the court had no jurisdiction to detain him. Aranda further alleges that in this district the United States has adopted the practice of charging by information then subsequent indictment, rather than by complaint, in order to subvert defendants' right to a preliminary examination, as provided for by 18 U.S.C. § 3060 and Federal Rule of Criminal Procedure 5(c). Aranda claims that this charging practice, which allows the government to circumvent the preliminary examination requirement, violates his Fifth Amendment right to due process. We review these issues de novo.

We first dispense with Aranda's contention that he was prosecuted improperly by information for an offense punishable by more than one year of imprisonment. Although Aranda was initially detained on the Information, he was indicted before a grand jury within the time permitted by statute. See 18 U.S.C. § 3161(b) (providing that an indictment must be filed against a defendant within thirty days of the defendant's arrest). Clearly, the government did not violate Aranda's Fifth Amendment right to be prosecuted by indictment.

Next, we address whether the district court violated the requirements of Federal Rules of Criminal Procedure 5(c) and 5.1 or Aranda's Fifth Amendment right to due process by failing to provide him with a preliminary examination. A defendant is entitled to a preliminary examination, unless waived, when charged with any offense, other than a petty offense, which is to be tried by a judge of the district court. 18 U.S.C. § 3060; Fed.R.Crim.P. 5(c). If a defendant is in custody, the magistrate must schedule the preliminary examination within 10 days. 18 U.S.C. § 3060(b)(1); Fed.R.Crim.P. 5(c). If, however, an indictment is filed against the defendant before the date scheduled for the preliminary examination, the examination should not be held. 18 U.S.C. § 3060(e); Fed.R.Crim.P. 5(c). A defendant who has been held in custody without receiving a preliminary examination and without being charged by the appropriate indictment or information should be discharged from custody without prejudice to the filing of further criminal proceedings. 18 U.S.C. § 3060(d); Fed.R.Crim.P. 5(c); United States v. Taylor, 465 F.2d 1199 (10th Cir.1972). This remedy extends only to defendants who remain in custody without being properly charged. If an indictment has been returned and the defendant is subsequently convicted, the conviction will not be reversed for failure to hold the preliminary examination. Gerstein v. Pugh, 420 U.S. 103, 119, 95 S.Ct. 854, 865-66, 43 L.Ed.2d 54 (1975); United States v. Bohrer, 807 F.2d 159, 161 (10th Cir.1986); Taylor, 465 F.2d at 1199. There is no doubt that Aranda was denied a preliminary examination. Nevertheless, there is no relief this court can provide him for this departure from 18 U.S.C. § 3060(b) and Federal Rule of Criminal Procedure 5(c). As dictated by Gerstein and Bohrer, a conviction may not be overturned for a failure of the district court to conduct a timely preliminary examination. We can only acknowledge the irregularity in the proceedings in Aranda's case.

Further, we can provide no relief on Fifth Amendment due process grounds. Although the right to a preliminary examination is embodied in the United States Code and the Rules of Criminal Procedure, the right is not constitutional. Snow v. State of Oklahoma, 489 F.2d 278, 279 (10th Cir.1973). Due process attaches only to a right to a judicial determination of probable cause. Gerstein, 420 U.S. at 119, 95 S.Ct. at 865-66. This judicial determination of probable cause may be in the form of a preliminary examination or it may in the form of an indictment; both are not required. Id. Therefore, once the Indictment was returned, Aranda's Fifth Amendment rights had been satisfied, and there was no reason to hold the preliminary examination. Accordingly, we will not disturb Aranda's conviction on these grounds.

B.

We must next decide whether the district court erred in failing to dismiss the Indictment due to alleged violations of due process in the underlying immigration proceedings. We review this mixed question of law and fact de novo. United States v. Meraz-Valeta, 26 F.3d 992 (10th Cir.1994) (citing United States v. Valdez, 917 F.2d 466, 468 (10th Cir.1990)).

Aranda was deported in 1989 after being convicted for possessing marijuana with the intent to distribute. In early 1990, he was paroled back into the United States. The government terminated Aranda's parole in 1992 and placed him in exclusion proceedings under section 236 of the INA. See 8 U.S.C. § 1226. Aranda applied for asylum under section 208 of the INA and/or withholding of deportation under section 243 of the INA, claiming that he should be afforded protection as a member of a particular social group that has a well founded fear of persecution. See 8 U.S.C. §§ 1158, 1253. Aranda described this social group as consisting of those persons who have worked as informants for drug enforcement agencies of the United States and who are in danger of being retaliated against upon return to their home country.

The immigration judge rejected Aranda's asylum and withholding of deportation arguments. The immigration judge additionally concluded that Aranda was ineligible for relief under either section 208 or 243 because he had been convicted of a felony that was now, in 1992, considered an aggravated felony under the terms of the INA. Aranda was then ordered excluded and apprised of his right to appeal to the Board of Immigration Appeals. Aranda reserved his right to appeal; however, when Aranda failed to file a timely notice of appeal within the ten days permitted, the decision of the immigration judge became final.

After he was indicted for the present offense, Aranda moved to dismiss the indictment based upon irregularities in the underlying deportation proceedings. In his motion, Aranda contended that the immigration judge did not fully explain his rights to appeal and consequently deprived him of meaningful judicial review of the immigration proceedings. The district court denied the motion, finding that Aranda had "made no threshold showing that he was entitled to relief or suspension from deportation such that the alleged failure of the immigration judge to fully explain the defendant's rights made any difference in the outcome of the proceeding." Record, Vol. I at 3-4.

The Supreme Court has held that when determinations made in the immigration hearing played a substantive role in the subsequent imposition of a criminal sanction, a meaningful review of the administrative...