U.S. v. Deleon
| Decision Date | 07 April 2006 |
| Docket Number | No. 04-1592.,04-1592. |
| Citation | 444 F.3d 41 |
| Parties | UNITED STATES of America, Appellee, v. Dario DELEON, a/k/a Rafael Garcia, Defendant, Appellant. |
| Court | U.S. Court of Appeals — First Circuit |
Roberto M. Braceras, with whom Christine M. Genaitis and Goodwin Procter LLP were on brief, for appellant.
Randall E. Kromm, Assistant United States Attorney, with whom Michael J. Sullivan, United States Attorney, was on brief, for appellee.
Before SELYA, LYNCH, and LIPEZ, Circuit Judges.
It is a crime for an alien to re-enter the country after he has been deported, unless he has the express permission of the Attorney General of the United States (or unless such permission is unnecessary in his case for other reasons). 8 U.S.C. § 1326(a). The usual sentence for the crime is a term in prison, followed by deportation.
Somewhat unusually in the criminal law, there is an exception provided by statute, id. § 1326(d), for aliens who can prove that the original deportation order was based on administrative proceedings which were fundamentally unfair. Subsection 1326(d) codifies these due process concerns, which were originally set forth in United States v. Mendoza-Lopez, 481 U.S. 828, 107 S.Ct. 2148, 95 L.Ed.2d 772 (1987). See United States v. Luna, 436 F.3d 312, 317 (1st Cir.2006). The collateral attack on the deportation order pursuant to § 1326(d) requires that the alien make three showings: that he has exhausted administrative remedies, that he was improperly deprived of the opportunity for judicial review, and that the deportation order was fundamentally unfair.
Rafael Garcia was convicted after a jury trial of the crime of illegal re-entry and was sentenced on April 29, 2004 to 33 months' imprisonment and two years of supervised release; he was released from prison on September 2, 2005, and was in immigration custody awaiting deportation as of the close of briefing in this appeal.
His appeal turns largely on attacking rulings by the district court denying his motion to dismiss the indictment under § 1326(d) because he had not met the three criteria for a successful collateral attack, and denying dismissal on statute of limitations grounds. He challenges jury findings that the criminal proceedings were brought within the five-year statute of limitations and that he re-entered the country without the express consent of the Attorney General. Although he has served his term of imprisonment, will be deported,1 and cannot re-enter the United States legally, he also attacks his sentence of 33 months' imprisonment plus supervised release. Finally, and with some cause, he complains about the delay of more than one year before the district court provided him a transcript for appeal.
The one fact that permeates the analysis in this case, and that affects many of the issues, is that at the time of his original 1995 conviction for sale of crack cocaine and consequent deportation, Garcia gave the false name of Dario DeLeon. He chose to hide from the Immigration and Naturalization Service (INS)2 both his true identity and the fact that he had a green card in his true name (Rafael Garcia). Indeed, he asked for a prompt deportation and took no appeal. The district court found as a matter of fact that this was a deliberate scheme of deception on his part so that he could illegally re-enter the country by using his green card and his real name. This is exactly what he did a mere two months after his deportation; he then lived in the United States for nearly eight years as Rafael Garcia. In March 2003, the government learned for the first time that Rafael Garcia was the same person as the deported DeLeon and started these proceedings.
We affirm Garcia's conviction and sentence in all respects and note these key points in our holdings. First, in performing the collateral attack analysis under § 1326(d), the court ordinarily should address the initial test of exhaustion of administrative remedies before going on to the other two tests. Second, we address the situation where an alien claims that the statute of limitations applicable to § 1326 prosecutions has run but the government's lack of knowledge of the alien's presence is a result of the alien's misrepresentations as to his identity. Third, we clarify and reinforce that a defendant who has been delayed in resolution of his appeal by delay in preparation of the trial transcript cannot establish a violation of due process absent a showing of prejudice.
The following facts are undisputed except where otherwise noted.
Garcia, a native of the Dominican Republic, came to Puerto Rico in 1981 or 1982, when he was approximately twelve years old. He obtained temporary permanent resident status in 1987 and lawful permanent resident status in 1990. He later moved to Massachusetts.
In late February 1995, Garcia was arrested in Quincy, Massachusetts and charged with, among other things, selling crack cocaine to undercover officers. Garcia, who was carrying no identification, told the police his name was Dario DeLeon. He also gave a false birth date and lied about his father's name.
Garcia, who said he spoke no English, appeared at least twice in Quincy District Court, accompanied both times by an attorney and at least once by an interpreter. According to a notation in the court records, Garcia was "[a]dvised of right to counsel" and "[a]dvised of alien rights." He never told the judge or anyone else his real name. On March 28, still under the name DeLeon, Garcia entered a plea to the drug charge3 and was sentenced to time served, thirty days' incarceration.
Garcia was then transferred to the custody of the INS. There he again identified himself as DeLeon and consistently denied having legal status. He denied having a visa or a Social Security number and claimed to be unemployed.
The INS Order to Show Cause issued to Garcia (under the name of DeLeon), which was written in both English and Spanish, informed him, among other things, that he could "seek an attorney or representative, if [he] desire[d] to be represented." It also informed him that if he was not satisfied with the eventual decision of the Immigration Judge (IJ), he had the right to appeal. Garcia signed a form (using the name DeLeon) which stated that the Order to Show Cause had been read to him in Spanish. Garcia also signed (as DeLeon) a form that stated, in Spanish, that he was "not a citizen of the United States," that he "d[id] not wish to apply for relief from deportation," and that he "want[ed] to be deported as soon as possible." The form further stated:
Prior to his appearance before the IJ, Garcia was provided with a "Notice of Rights" in Spanish. The notice had two relevant sections. The first, entitled "Right to be Represented by an Attorney or Representative," stated:
If you have any questions regarding any of your rights you can speak with an attorney or representative who can explain your rights, including any relief that may be available to you from deportation. The officer who gave you this notice will give you a list of organizations that can provide legal information. Representatives from these organizations will speak to you for free or for a small fee, and some of them might speak your language.... You may contact a lawyer or other legal representative at this time or at any other time prior to your departure from the United States.
The second section, entitled "Right to a Hearing Before an Immigration Judge," stated in relevant part:
If you do not want to return to your country, you have a right to a hearing before an immigration judge, who will determine whether you can remain in the United States. If you request a hearing, you may be represented at the hearing by a lawyer or other legal representative at your own expense. If you cannot afford to pay a lawyer, you may contact an organization on the list of free legal services. For example, if you are married to a U.S. citizen or permanent resident, or have lived in the U.S. for seven years or longer, and have not been convicted of a serious crime, you may be eligible for relief from deportation.
(emphasis in the original). Garcia signed the bottom of the form (as DeLeon), indicating he had read it.
Garcia also received, as part of the Order to Show Cause, a page of written information entitled "Notice of Rights and Consequences." It stated, in both English and Spanish: It noted that hearings before the IJ were typically scheduled no sooner than fourteen days after the issuance of the Order to Show Cause "to allow you to seek an attorney or representative, if you desire to be represented."
On April 26, 1995, Garcia appeared before an IJ in Oakdale, Louisiana. A court interpreter was present. The following colloquy ensued:
IJ: Mr. DeLeon, sir, this is your first appearance in my court, Immigration Court. As such, you're entitled to delaying your case, if you wish, to better prepare your case or to acquire an attorney or we may go forward today, whichever you desire.
Garcia: I cannot afford an attorney. I would like to — I would like to ask for deportation.
IJ: Do you understand the nature of Immigration Court, sir?
Garcia: Yes.
At that point Garcia took an oath to testify truthfully. The colloquy then continued:
IJ: Sir, do you understand that you have the right to have an attorney represent you at no expense to the government?
Garcia: Yes.
....
IJ: And you understand, sir, that you have the right to appeal any decision of this court to a higher...
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