U.S. v. Calderon-Pena

• Decision Date: 17 July 2003
• Docket Number: No. 02-20331.,02-20331.
• Citation: 339 F.3d 320
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Pedro CALDERON-PENA, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

339 F.3d 320

UNITED STATES of America, Plaintiff-Appellee, v. Pedro CALDERON-PENA, Defendant-Appellant.

No. 02-20331.

United States Court of Appeals, Fifth Circuit.

July 17, 2003.

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Tony Ray Roberts (argued), McAllen, TX, James Lee Turner, Asst. U.S. Atty., Houston, TX, for Plaintiff-Appellee.

Roland E. Dahlin, II, Fed. Pub. Def., Timothy William Crooks (argued), Asst. Fed. Pub. Def., Houston, TX, for Defendant-Appellant.

Appeal from the United States District Court for the Southern District of Texas.

Before SMITH and BARKSDALE, Circuit Judges, and DUPLANTIER,¹ District Judge.

JERRY E. SMITH, Circuit Judge:

Pedro Calderon-Pena was convicted of illegal reentry of a removed alien under 8 U.S.C. § 1326. He challenges his conviction, arguing that the underlying indictment was invalid because the prior removal order violated his due process rights. He also challenges his sentence, contending that his prior conviction for endangering a child was not a crime of violence under the sentencing guidelines, or alternatively that the use of the 2001 version of the guidelines violated the ex post facto clause of the Constitution. We affirm the conviction and sentence.

I.

In 1999, Calderon-Pena, a citizen of Mexico, was convicted in Texas of two counts of endangering a child and one count of felony criminal mischief for using his car to strike another car that contained his two children; he was sentenced to fifteen months' imprisonment. After his release, the Immigration and Naturalization Service ("INS") initiated removal proceedings, asserting that the child endangerment convictions were "crimes of violence" as defined by 18 U.S.C. § 16 and resulted in a term of imprisonment of at least one year, rendering them "aggravated felonies" under 8 U.S.C. § 1101(a)(43)(F). The immigration judge ("IJ") agreed and found Calderon-Pena deportable on that basis. Calderon-Pena neither appealed the removal order nor pursued administrative remedies; he was deported to Mexico in June 2000.

In January 2001, Calderon-Pena was found in the United States. A federal grand jury indicted him for entering the United States after being deported subsequent to conviction for an aggravated felony pursuant to 8 U.S.C. § 1326(a) and (b)(2). He moved to dismiss the indictment, contending that it was invalid because his removal order violated his right to due process. Specifically, he asserted that he was denied due process because the IJ erroneously had found that the criminal offense that served as the basis for his removal was an aggravated felony and because the IJ had failed to advise him of the availability of discretionary review.

The district court denied the motion. Calderon-Pena waived his right to a jury; all relevant facts were stipulated; and the district court found him guilty as charged.

The presentence report ("PSR") applied the 2001 version of the guidelines and assigned a base offense level of 8, then added a sixteen-level enhancement for being previously deported following a conviction for a felony crime of violence pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(ii). After making a three-point reduction for acceptance of responsibility, the PSR calculated Calderon-Pena's offense level at 21.

Calderon-Pena objected to the calculation, arguing that his child endangerment convictions did not qualify as crimes of violence, rendering the sixteen-level enhancement improper. Alternatively, he urged that the 2000 version of the guidelines should have been applied, because an amendment to § 2L1.2 that became effective after the commission of the offense impermissibly increased his punishment, thereby violating the ex post facto clause of the Constitution.

The district court reviewed the indictment from the child endangerment convictions and concluded that those convictions qualified Calderon-Pena for the same sentencing enhancements under either version of the guidelines. It therefore overruled Calderon-Pena's objections, adopted the total offense calculation of the PSR, and sentenced Calderon-Pena to seventy months' imprisonment, a three-year term of supervised release, and a $100 mandatory special assessment.

II.

Calderon-Pena asserts that the IJ incorrectly determined that his child endangerment convictions were aggravated felonies, and consequently failed to inform him of discretionary relief from deportation available to those not being deported subsequent to an aggravated felony. The government contends the IJ's failure to advise Calderon-Pena of the availability of discretionary relief did not violate his right to due process, and therefore entry of the removal order did not rise to the level of fundamental unfairness. We review de novo a constitutional challenge to an indictment. United States v. Lopez-Vasquez, 227 F.3d 476, 481-82 (5th Cir.2000).

In certain situations, an alien prosecuted under § 1326 may challenge the underlying removal order. United States v. Mendoza-Lopez, 481 U.S. 828, 839, 107 S.Ct. 2148, 95 L.Ed.2d 772 (1987).

Our interpretation of Mendoza-Lopez required an alien challenging a prior removal to establish that (1) the removal hearing was fundamentally unfair; (2) the hearing effectively eliminated the right of the alien to challenge the hearing by means of judicial review of the order; and (3) the procedural deficiencies caused the alien actual prejudice.

United States v. Lopez-Ortiz, 313 F.3d 225, 229 (5th Cir.2002), cert. denied, 537 U.S. 1135, 123 S.Ct. 922, 154 L.Ed.2d 827 (2003). To meet the prejudice prong, an alien must demonstrate a reasonable likelihood that, but for the errors complained of, he would not have been deported. United States v. Benitez-Villafuerte, 186 F.3d 651, 658-59 (5th Cir.1999). These requirements were effectively codified in § 1326(d), which provides:

In a criminal proceeding under this section, an alien may not challenge the validity of the deportation order described in subsection (a)(1) or subsection (b) of this section unless the alien demonstrates that —

(1) the alien exhausted any administrative remedies that may have been available to seek relief against the order;

(2) the deportation proceedings at which the order was issued improperly deprived the alien of the opportunity for judicial review; and

(3) the entry of the order was fundamentally unfair.

Eligibility for discretionary relief from a removal order is not "a liberty or property interest warranting due process protection"; thus, an IJ's failure to explain eligibility "does not rise to the level of fundamental unfairness." Lopez-Ortiz, 313 F.3d at 231. Considering that the failure to advise an alien of eligibility for discretionary relief is not a liberty interest warranting due process protections, a violation of an agency regulation requiring the IJ to inform the alien of eligibility for discretionary relief does not rise to the level of a due process violation, at least under the circumstances presented here.

Calderon-Pena urges that Lopez-Ortiz is not dispositive. Citing United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 267-68, 74 S.Ct. 499, 98 L.Ed. 681 (1954), Calderon-Pena contends that he has a due process interest in the INS's following its own regulations in adjudicating his removal, which the IJ violated by failing to advise him of the availability of discretionary relief. In Accardi, an alien attacked the validity of the denial of his application for suspension of deportation, contending that certain conduct by the Attorney General deprived him of the rights guaranteed to him by the applicable immigration statute and regulations. Specifically, the petitioner asserted that the Board of Immigration Appeals ("BIA") had failed to exercise its discretion in denying his application for suspension of deportation, as it was required to do under INS regulations; instead, it denied the application because Accardi was included on a confidential list of people the Attorney General wanted deported. In considering Accardi's application for writ of habeas corpus, the Court concluded that he had sufficiently alleged a due process interest in having the INS follow its own regulations, so the Court remanded to the district court with instruction to determine whether there had in fact, been a prejudgment and, if so, to order a new administrative hearing. Id. at 268, 74 S.Ct. 499.

Calderon-Pena does not cite, nor have we located, any cases applying Accardi in the criminal context; all examples of relief granted came either via direct appeal of an administrative ruling or by writ of habeas corpus.² In civil proceedings, Accardi is applied by ordering a new administrative hearing, and therefore courts do not require a showing of prejudice. Here, we are not empowered to order, nor has Calderon-Pena requested, a new deportation hearing; rather, we may only dismiss the indictment for his subsequent illegal reentry. This is not a remedy contemplated by Accardi or its progeny. Irrespective of whether Accardi provided a basis for Calderon-Pena to challenge his deportation in a civil proceeding, it is improper to seek its application now in an unrelated criminal proceeding.

Furthermore, the IJ did not, in fact, violate the regulation at issue, which requires that the IJ "shall inform the alien of his or her apparent eligibility to apply for any of the benefits enumerated in this chapter and shall afford the alien an opportunity to make application during the hearing." 8 C.F.R. § 1240.11(a)(2). Calderon-Pena's allegation that the IJ failed to follow this regulation is predicated on his initial allegation that the IJ's aggravated felony determination was erroneous, because discretionary relief is unavailable to aggravated felons.

Given the IJ's legal determination that the basis of deportation was an aggravated felony, Calderon-Pena's eligibility for discretionary relief was not apparent. Assuming that he should have been eligible for discretionary relief but was not informed, this...