U.S. v. Bravo-Diaz, No. 02-50031.

• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)
• Writing for the Court: Per Curiam
• Citation: 312 F.3d 995
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Jose BRAVO-DIAZ, Defendant-Appellee.
• Docket Number: No. 02-50031.
• Decision Date: 03 December 2002

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312 F.3d 995 UNITED STATES of America, Plaintiff-Appellant,
v.
Jose BRAVO-DIAZ, Defendant-Appellee. No. 02-50031. United States Court of Appeals, Ninth Circuit. Submitted November 6, 2002.^* Filed December 3, 2002.

Patrick K. O'Toole, United States Attorney (on brief), Carol C. Lam, United States Attorney (when opinion was filed), Dorn G. Bishop, Assistant United States Attorney, U.S. Attorney's Office, San Diego, CA, for the plaintiff-appellant.

Benjamin Sanchez, Jr., San Diego, CA, for the defendant-appellee.

Appeal from the United States District Court for the Southern District of California. Thomas J. Whelan, District Judge, Presiding. D.C. No. CR-74-01853-TJW.

Before HALL, THOMPSON, and WARDLAW, Circuit Judges.

OPINION

PER CURIAM.

The United States of America appeals from an order of the district court vacating a 1974 drug-smuggling conviction of appellee, Jose Bravo-Diaz. The district court, purporting to act under 28 U.S.C. section 1651(a) (the "All Writs Act"), vacated Bravo-Diaz's conviction in a document styled as an "Order Granting Defendant's Writ

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for Relief from Judgment." The United States contends that the district court was without jurisdiction to issue such an order. We have jurisdiction pursuant to 28 U.S.C. section 1291. Because the district court did not have jurisdiction, we REVERSE.

FACTS

On November 18, 1974, Jose Bravo-Diaz was convicted of smuggling 84 pounds of marijuana into the United States in violation of 21 U.S.C. sections 952, 960 and 963. He was sentenced to 100 days in prison and 3 years of probation. He also was ordered not to re-entered the United States were he deported. Upon completion of his 100-day prison term, Bravo-Diaz was deported to Mexico. Subsequent to his deportation, he re-entered the United States illegally. He married a U.S. citizen in 1977. In 1997, Bravo-Diaz pleaded guilty to a domestic violence charge. He was again deported in 1998. He re-entered the country illegally and was deported for a third time in 2000.

In November 2001, Bravo-Diaz filed in the district court a "Motion for Relief in the Form of Writ of Audita Querela or or [sic] in the Alternative, Relief Under the All Writs Act."¹ In his brief in support of this motion, Bravo-Diaz submitted evidence tending to show that: he had paid taxes for the last several years; he held regular employment to the satisfaction of his employers; his wife may require some sort of surgery in the near future; and his son has had trouble sleeping since his deportation. He also submitted an unsworn letter from his wife declaring that "Robert Eddy, the head of I.N.S., said if we could expunge the record of 1974, he will allow Jose back into the U.S.A. to be with his family."

On December 10, 2001, a hearing on Bravo-Diaz's motion was held in the United States District Court for the Southern District of California. The court first held that it did not have jurisdiction to grant a writ of audita querela because Bravo-Diaz's conviction was "correct at the time it was entered and is correct today." However, the court found that it had jurisdiction directly under the All Writs Act to vacate Bravo-Diaz's 1974 conviction on solely equitable grounds. The district court granted the motion reasoning that the equities weighed in favor of vacating the conviction because Bravo-Diaz had been "law-abiding and working," and the INS might issue him a green card were his conviction vacated. The district court also took into account what it thought deceased District Judge Leland Neilson, before whom Bravo-Diaz pleaded guilty in 1974, would do in the situation:

I worked with Judge Neilsen on this court. And one of the things I did was asked myself what I think Judge Neilson would do in this case, and in my mind is not much doubt what Judge Nielson would do.... Once someone has repaid their debt to society, he was a compassionate person. I think here that Mr. Bravo has paid his debt to society.... Whether or not he should get issued a green card is really up to the Immigration & Naturalization Service, and I am sure that's how Judge Nielsen would feel about it. Judge Nielsen would want me to put Mr. Bravo in a position of being eligible to apply for a green card and let them make the determination as to whether or not it should be granted.

The district court...