U.S. v. Contreras

• Decision Date: 17 August 1995
• Docket Number: No. 94-30306,94-30306
• Citation: 63 F.3d 852
• Parties: 95 Cal. Daily Op. Serv. 6492, 95 Daily Journal D.A.R. 11,103 UNITED STATES of America, Plaintiff-Appellee, v. Manuel CONTRERAS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 852

63 F.3d 852

95 Cal. Daily Op. Serv. 6492, 95 Daily Journal

D.A.R. 11,103

UNITED STATES of America, Plaintiff-Appellee, v. Manuel CONTRERAS, Defendant-Appellant.

No. 94-30306.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted July 11, 1995.

Decided Aug. 17, 1995.

Linda Friedman Ramirez (argued), Leslie Kay (briefed), Portland, OR, for defendant-appellant.

John C. Laing, Sp. Asst. U.S. Atty., Portland, OR, for plaintiff-appellee.

Appeal from the United States District Court for the District of Oregon.

Before: GOODWIN and HUG, Circuit Judges, and SCHWARZER, ^* District Judge.

GOODWIN, Circuit Judge:

Manuel Contreras, a citizen of Mexico, appeals his conviction for Aggravated Illegal Reentry into the United States, 8 U.S.C. Sec. 1326(a) and (b)(2). The conviction is affirmed.

Background

On July 29, 1988, Contreras was arrested on a charge of possession with intent to distribute cocaine. On August 9, 1988, while in custody on this charge, Contreras was served with an Order to Show Cause why he should not be deported. Contreras requested a prompt hearing.

A telephonic deportation hearing was held August 12, 1988. Speaking through a Spanish interpreter, Contreras admitted the facts recited in the show-cause order. The Immigration Judge ordered deportation and advised Contreras of his right to seek judicial review of the order of deportation.

Contreras was not deported immediately following the August 12, 1988 hearing, however, because he still had to face the cocaine charge. On that charge he was convicted and, on May 1, 1989, sentenced to 47 months imprisonment and three years of supervised release. For purposes of this appeal, the terms of his supervised release are significant. They were that Contreras was prohibited from returning to the United States without first obtaining written permission from the U.S. Attorney for the District of Oregon and I.N.S. Officials.

Contreras served his prison term and, on December 30, 1991, was deported to Mexico. His three-year period of supervised release then began to run. In light of his physical expulsion from the United States, "supervised release" is not a very accurate description of his status. However, nomenclature is not important. What is important is that Contreras, without authorization and before the three-year period expired, returned to Oregon. On January 29, 1993, he was arrested on a second drug charge, and a federal indictment followed on February 17, 1993. On April 8, 1993, while in custody for this drug charge, Contreras was arraigned on an additional charge, namely that his unscheduled reappearance in the Pacific Northwest constituted a violation of the conditions of his supervised release.

On November 18, 1993, the United States dismissed the drug charge. Contreras admitted violating the terms of his supervised release and was sentenced to time served. Then came the indictment that eventually led to this appeal. On the same day that the government dismissed the drug charge, the grand jury indicted Contreras for Aggravated Illegal Reentry into the United States, a violation of 8 U.S.C. Sec. 1326(a) and (b)(2). He was convicted, and now appeals. We have jurisdiction. 28 U.S.C. Sec. 1291.

Discussion

1. Contreras argues that he was deprived of the right to a speedy trial. Although a speedy trial is guaranteed the accused by the Sixth Amendment to the Constitution, Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), Contreras premises his argument not on the Sixth Amendment but on the Speedy Trial Act, 18 U.S.C. Sec. 3161, et seq.

The Speedy Trial Act requires, inter alia, that

[a]ny ... indictment charging an individual with the commission of an offense shall be filed within thirty days from the date on which such individual was arrested ... in connection with such charges.

18 U.S.C. Sec. 3161(b). Failure to comply with Section 3161 requires dismissal of the indictment. 18 U.S.C. Sec. 3162(a)(1). "We review legal questions regarding application of the Speedy Trial Act de novo, but factual findings are reviewed for clear error." United States v. Hoslett, 998 F.2d 648, 652 (9th Cir.1993).

Contreras was arrested for the supervised release violation on April 8, 1993. The indictment on the illegal reentry charge was not returned until November 18, 1993, seven months later. Although the arrest and subsequent indictment were for different charges, Contreras argues that the arrest for the supervised release violation was "in connection with" the illegal reentry indictment because he was arrested and indicted for the same underlying conduct, i.e., reentering the United States without permission.

This is an inert argument because we do not use a "same conduct" standard for purposes of applying the Speedy Trial Act. We have held that "18 U.S.C. section 3161(b) requires something more than that the acts leading to the detention be the same as those underlying the eventual criminal charge." Hoslett, 998 F.2d at 653. In Hoslett we intimated that "something more" might mean using an earlier charge as "a ruse for delay in obtaining an indictment." Id.

Here we do not see "something more." We see, rather, that Contreras was held in custody on both the drug charge and the supervised release violation until November 18, the date on which he was indicted on the illegal reentry. The district court found that Contreras' detention from April to November was not on account of a government effort to gather evidence to obtain an indictment. The finding is not clearly erroneous.

It was, therefore, only upon Contreras' November 18, 1993 arrest and indictment for illegal reentry that the time periods of the Speedy Trial Act were triggered. We affirm the determination of the district court that, on this record, no violation of the Act has been made out.

2. Contreras next argues that the delay between his January 29, 1993 arrest on federal drug charges and the November 18, 1993 indictment on the illegal reentry charge was so excessive that it constitutes a violation of his due process rights under the Fifth Amendment.

We review claims of due process violations caused by pre-indictment delay under the abuse-of-discretion standard. United States v. Sherlock, 865 F.2d 1069, 1073 (9th Cir.1989). Pursuant to the Supreme Court decision in United States v. Lovasco, 431 U.S. 783, 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977), this court utilizes a two-pronged test to determine whether a pre-indictment delay has risen to the level of a denial of due process. United States v. Moran, 759 F.2d 777, 780 (9th Cir.1985), cert. denied, 474 U.S. 1102, 106 S.Ct. 885, 88 L.Ed.2d 920 (1986). Under the first prong, the defendant has the burden of proving that "actual prejudice" occurred from the delay. Id. If "actual prejudice" is established, the court then weighs the length of the pre-indictment delay against the reason for the delay. Id. The defendant's burden is a heavy one: "the proof must be definite and not speculative...."

United States v. Gonzalez-Sandoval, 894 F.2d 1043, 1050 (9th Cir.1990).

Contreras asserts that his prejudice results from not being able to seek consolidation of the sentencing for the supervised release violation with the illegal reentry charge. In Gonzalez-Sandoval, the appellant made a similar argument: had he been indicted, tried, and convicted earlier, he would have sought to receive sentencing concurrent with another sentence. Id. at 1051. We noted that "[p]revious decisions by this court have applied the actual prejudice test stringently," and held that "[t]his claim ... is entirely speculative." Id.

Contreras' argument is hardly less speculative than Gonzalez-Sandoval's. The Guidelines provide that "[i]t is the policy of the [United States Sentencing] Commission that the sanction imposed upon revocation [of supervised release] is to be served consecutively to any other term of imprisonment imposed for any criminal conduct that is the basis of the revocation." U.S.S.G. Ch. 7, Pt. B, Introductory Commentary. Chapter 7 policy statements are not binding on the district court, United States v. Forrester, 19 F.3d 482 (9th Cir.1994), as Contreras notes, but they are an element in the exercise of discretion and it would be an abuse of discretion for the district court to ignore them. Id. at 484. The district court did not abuse its discretion in finding that Contreras failed to show actual prejudice.

3. Contreras next attacks his 1991 deportation order, on three grounds: (1) that he was not advised properly of eligibility for relief from deportation; (2) that key portions of the hearing were not translated into Spanish; and (3) that the hearing was conducted by telephone. Whether the defects in an underlying deportation invalidated the proceeding and order for use in a later criminal proceeding is a mixed question of law and fact which we review de novo. United States v. Proa-Tovar, 975 F.2d 592, 594 (9th Cir.1992) (en banc).

In United States v. Mendoza-Lopez, 481 U.S. 828, 107 S.Ct. 2148, 95 L.Ed.2d 772 (1987), the Supreme Court held that an alien must be permitted to collaterally attack a deportation order where the deportation proceeding upon which it was based was so fundamentally flawed as to effectively foreclose judicial review. 481 U.S. at 839-40, 107 S.Ct. at 2155-56. In Mendoza-Lopez, the Court found that the respondents were effectively deprived of their right to judicial review where the IJ failed to inform them of their eligibility for suspension of the deportation and permitted waivers of the right to appeal that were not considered or intelligent. Id. at 840, 107 S.Ct. at 2155. Here Contreras does not allege that the IJ failed to inform him of his right to appeal. Therefore, we examine each of Contreras' three allegations to determine whether they, individually or in sum, constitute due process violations capable of sustaining a collateral attack on the deportation order.

a. Notice of eligibility for...