U.S. v. Fernandez-Antonia

• Decision Date: 29 January 2002
• Docket Number: Docket No. 01-1030.
• Citation: 278 F.3d 150
• Court: U.S. Court of Appeals — Second Circuit
• Parties: UNITED STATES of America, Appellee, v. Pablo FERNANDEZ-ANTONIA, aka "Pablo Fernandez", Defendant-Appellant.

278 F.3d 150

UNITED STATES of America, Appellee, v. Pablo FERNANDEZ-ANTONIA, aka "Pablo Fernandez", Defendant-Appellant.

Docket No. 01-1030.

United States Court of Appeals, Second Circuit.

Argued October 17, 2001.

Decided January 29, 2002.

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Henry E. Mazurek, Jr., New York City (Kramer Levin Naftalis & Frankel, New York City, of counsel), for Appellant.

Harry Sandick, Assistant United States Attorney, Southern District of New York, New York City (Mary Jo White, United States Attorney for the Southern District of New York, Jamie L. Kogan, Assistant United States Attorney, Southern District of New York, New York City, of counsel), for Appellee.

Before: MESKILL and JACOBS, Circuit Judges, and LYNCH, District Judge.^*

MESKILL, Circuit Judge:

Defendant-appellant Pablo Fernandez-Antonia (Fernandez-Antonia) appeals from a judgment of the United States District Court for the Southern District of New York, Buchwald, J., convicting him, after a guilty plea, of violating 8 U.S.C. § 1326 by unlawfully entering the United States after having been removed.¹ In the district court, Fernandez-Antonia moved to withdraw his guilty plea and dismiss the indictment. He argued that he was prejudiced by the fundamental unfairness of his removal proceeding and thus his removal properly could not form an element of the criminal offense to which he had pled guilty.

The district court held that the removal proceeding was not fundamentally unfair because Fernandez-Antonia could not demonstrate that he was prejudiced by any deficiencies in the proceeding. The district court concluded that there was no "reasonable likelihood" that Fernandez-Antonia would have escaped removal even if he had appealed the removal order and been granted a new hearing. Based on this holding, the district court denied Fernandez-Antonia's motion to withdraw his guilty plea and his motion to dismiss the indictment. The district court then sentenced him to a term of imprisonment of 57 months with two years supervised release, and imposed a mandatory assessment of $100. As part of its sentencing calculation, the district court enhanced Fernandez-Antonia's offense level by sixteen, concluding that his prior conviction in New York state of attempted robbery in the third degree constituted a violent felony under U.S. Sentencing Guidelines § 2L1.2(b)(1)(A).

On appeal, Fernandez-Antonia contends that his removal proceeding was fundamentally unfair because it suffered from procedural flaws and thus he is entitled to relief on collateral review. He also claims that the district court incorrectly enhanced his sentence. We find no merit in either claim.

In order to obtain relief on collateral review, Fernandez-Antonia had to demonstrate prejudice resulting from procedural flaws in his removal proceeding. The district court correctly determined that he had failed to do so. The district court also did not err in enhancing Fernandez-Antonia's sentence. Therefore, we affirm the judgment of the district court.

BACKGROUND

Fernandez-Antonia is a citizen of the Dominican Republic. He illegally entered the United States prior to 1991 and remained here until 1997. On April 22, 1991, Fernandez-Antonia was arrested for attempted robbery in the third degree. He was released on bail but failed to appear at a scheduled court conference. In late 1996, Fernandez-Antonia was arrested for selling cocaine to an undercover narcotics officer. He avoided prosecution for the narcotics charges by pleading guilty to disorderly conduct. He also pleaded guilty to attempted robbery in the third degree and attempted bail jumping in the first degree in connection with the 1991 robbery. On December 11, 1997, he was sentenced to a term of imprisonment of one year.

About one week later, Immigration and Naturalization Service (INS) officers visited and interviewed the incarcerated Fernandez-Antonia. At the second of these visits he was given INS Form I-826, entitled, "Notice of Rights and Request for Disposition." Although the Notice of Rights was printed in English, an INS officer read it to Fernandez-Antonia in his native Spanish. The Notice of Rights provided, in pertinent part: "You have the right to a hearing before the Immigration Court to determine whether you may remain in the United Stated[sic].... Upon your request, the officer who gave you this notice will provide you with a list of free legal organizations that may represent you for free or for a small fee." Although the box for "I request a hearing before the Immigration Court" is marked, Fernandez-Antonia refused to initial next to the box to indicate his assent to that request and also refused to sign the form.

On January 9, 1998, the INS served Fernandez-Antonia with INS Form I-862, a "Notice to Appear" at an INS removal hearing. The Notice to Appear charged Fernandez-Antonia with being in the United States without being admitted or paroled by an immigration officer. The form was printed in English, although an INS officer read it to Fernandez-Antonia in Spanish. The Notice to Appear informed Fernandez-Antonia that he would be provided a list of qualified attorneys who might be available to represent him without charge. A review of Fernandez-Antonia's immigration A-file indicates that the INS officers failed to include this attorney list with the Notice to Appear. The Notice to Appear also provided: "At the conclusion of your hearing, you have a right to appeal an adverse decision by the immigration judge." Fernandez-Antonia requested an immediate hearing.

The INS transferred him from New York City to York, Pennsylvania for his immigration hearing. On January 18, 1998, Fernandez-Antonia signed a form entitled, "Request for Expedited Deportation/Exclusion/Removal Order."² The form presents a series of questions in both English and Spanish, although only the English answers on Fernandez-Antonia's form are circled. By the circled answers, Fernandez-Antonia expressed his desire to be removed from the United States, stated that he did not intend to ask the immigration judge to redetermine his bond, that he had not yet been seen by an immigration judge, and had not yet been ordered removed.

On January 22, 1998, Fernandez-Antonia appeared before immigration judge Walter Durling with approximately twelve other aliens as part of a group deportation or removal hearing. At the beginning of the hearing, the judge addressed the group as follows:

Good. Okay. Now I'm the only one talking. If you talk and I don't, I'm not talking to you. I'll postpone your case and have you reappear next month. This way we can [get] this over with as quickly as possible and you can be on your way. Now it's my understanding that all you gentlemen are here today because you're going to, you're willing to accept orders of deportation. It's the only thing I'm doing today. If you think that this hearing is for something else, kindly raise your hand. No one has raised their hand. Now by being here today at this particular hearing you are giving up certain rights that you would otherwise have had. You are giving up your right, first of all, to be represented by a lawyer at no expense to the United States government.... You are giving up your right to have the United States government prove to me that you're unlawfully in the United States. You are also giving up your right to have me, the Judge, figure out if there is any way for you lawfully to remain in this country.... Now my decision today will be a final decision, you will not have a right to appeal my order, you do not have it by being here today. Now after telling you all of these rights that you are giving up, is there anyone here that wants to change their mind? Just raise your hand if you want to change your mind.

None of the aliens raised a hand.

The immigration judge then proceeded to question the members of the group individually. The judge asked Fernandez-Antonia if he was a citizen or national of the United States, when he had last entered the United States and whether he had been inspected by an immigration official at the time of this entry. Fernandez-Antonia disclosed that he had been convicted of attempted robbery and bail jumping. When the judge told Fernandez-Antonia that he was going to be deported, Fernandez-Antonia asked, "How long will it take, like what I want to do is to leave it [sic] right away." On February 24, 1998, Fernandez-Antonia was removed from the United States to the Dominican Republic.

On or about October 14, 1999, an INS special agent arrested Fernandez-Antonia pursuant to an indictment charging him as a deported alien who has reentered the country in violation of 8 U.S.C. §§ 1326(a) and (b)(2). On January 18, 2000, Fernandez Antonia entered a guilty plea before the United States District Court for the Southern District of New York. On June 1, 2000, Fernandez-Antonia requested and received time from the district court to pursue possible claims of legal deficiencies in his removal order. He then moved to withdraw his guilty plea and dismiss the indictment. On November 15, 2000, the district court denied both motions. On January 9, 2001, the district court sentenced Fernandez-Antonia to a term of imprisonment of 57 months and two years supervised release.

Fernandez-Antonia timely filed this appeal.

DISCUSSION

On appeal, Fernandez-Antonia argues that (1) the district court abused its discretion by denying his motion to withdraw his guilty plea and denying him an evidentiary hearing under Federal Rule of Criminal Procedure 32(e) despite his substantiated claim of legal innocence, (2) the trial judge erred in denying his underlying motion to dismiss the indictment based on his collateral attack of the prior deportation order, and (3) his prior conviction for attempted robbery in the third degree does not constitute an aggravated felony under Guidelines § 2L1.2(b)(1)(A) and therefore he should not have received a sixteen-level upward adjustment in...