U.S. v. Garcia-Echaverria

Decision Date01 July 2004
Docket NumberNo. 03-3655.,03-3655.
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Marco GARCIA-ECHAVERRIA, Defendant-Appellant.
CourtU.S. Court of Appeals — Sixth Circuit

Thomas O. Secor (argued and briefed), Assistant United States Attorney, Toledo, OH, for Appellee.

Jeffrey M. Gamso (argued and briefed), Gamso, Helmick & Hoolahan, Toledo, OH, for Appellant.

Before MERRITT and MOORE, Circuit Judges; DUGGAN, District Judge.*

OPINION

MOORE, Circuit Judge.

Defendant-Appellant, Marco Garcia-Echaverria ("Garcia-Echaverria"), appeals his conviction pursuant to a conditional guilty plea for "Unlawful Reentry by an Illegal Alien," in violation of 8 U.S.C. § 1326(b). On appeal, Garcia-Echaverria argues that his conviction for unlawful reentry should be vacated because (1) his initial removal was unlawful, because at the time he was removed, the Kentucky drug conviction for which he was removed was on direct appeal; (2) his initial removal violated due process because at the time he was removed, his petition for review of the Board of Immigration Appeals ("BIA") decision and his motion for a stay of removal were pending before the United States Court of Appeals for the Fifth Circuit, he had filed a petition for a writ of habeas corpus in the United States District Court for the Southern District of New York ("S.D.N.Y."), which the S.D.N.Y. had transferred to the United States District Court for the Western District of Louisiana ("W.D.La."), and the S.D.N.Y. had issued a stay of removal until the W.D.La. took further action; and (3) his indictment should have been dismissed due to violations of § 3161(b) of the Speedy Trial Act and Federal Rule of Criminal Procedure 5(a) because by the time he was indicted, he had been in detention for thirty-three days, and by the time he was first brought before a magistrate, he had been in detention for thirty-five days.

For the following reasons, we AFFIRM Garcia-Echaverria's conviction.

I. BACKGROUND

In this appeal, Garcia-Echaverria challenges his conviction for unlawful reentry. On October 3, 2001, a grand jury returned a one-count indictment, charging Garcia-Echaverria with being an alien found in the United States on or about August 31, 2001, after having been deported for committing an "aggravated felony" and without obtaining permission to reenter from the Attorney General, in violation of 8 U.S.C. § 1326(b). After his motions to dismiss the indictment were denied, Garcia-Echaverria pleaded guilty to the charge of unlawful reentry, and the district court sentenced him to thirty-seven months of imprisonment.

Several of Garcia-Echaverria's arguments on appeal attack the legality of his prior removal. Garcia-Echaverria, a native and citizen of Mexico, entered the United States on or about January 1, 1980, and became a lawful permanent resident on or about January 26, 1990. On January 6, 1997, Garcia-Echaverria was convicted by the State of Kentucky pursuant to a guilty plea, entered on December 16, 1996, to the charge of "Trafficking Marijuana over 8 ounces, less than 5 pounds," in violation of K.R.S. 218A.1421(3). Joint Appendix ("J.A.") at 125-26. On January 10, 1997, the Kentucky Circuit Court sentenced Garcia-Echaverria to five years of imprisonment for his Kentucky drug conviction. Several months later, on May 7, 1997, Garcia-Echaverria filed a motion in the Kentucky Circuit Court, requesting taped copies of the court proceeding leading up to his Kentucky drug conviction, and indicating that the tapes would be used to seek post-judgment relief. Then, on July 16, 1997, Garcia-Echaverria wrote a pro-se letter to the Kentucky Circuit Court, indicating that he wanted to appeal his conviction, or in the alternative, requesting shock probation. The Joint Appendix reflects that on March 29, 2000, the Kentucky Circuit Court entered an order overruling Garcia-Echaverria's "motion for appointment of counsel, motion for hearing and motion to set aside sentence."1 J.A. at 168. Subsequently, Garcia-Echaverria filed a motion to reconsider the March 29, 2000 order, which was captioned as a "`BELATED APPEAL RCr 11.42 MOTION TO VACATE, SE[T] ASIDE, CORRECT SENTENCE OR SET FOR NEW TRIAL AND APPEAL' `APPOINTMENT COUNSEL AND MOTION FOR HEARING.'" J.A. at 153. On April 18, 2000, the Kentucky Circuit Court overruled this motion to reconsider.

On May 30, 2000, Garcia-Echaverria filed a Notice of Appeal in the Kentucky Circuit Court, indicating that he sought to appeal the March 29, 2000 and April 18, 2000 orders. The Kentucky Court of Appeals's docket sheet also reflects that the appeal related to the March 29, 2000 and April 18, 2000 orders. The "General Case Information" section of the docket sheet, however, indicates that the document type is a "Matter of Right Appeal," and that the case type is a "Direct appeal-Criminal." J.A. at 114. On February 14, 2001, after Garcia-Echaverria had been removed, the Kentucky Court of Appeals dismissed the appeal upon its own motion. On August 14, 2002, the Clerk of the Court of Appeals for Kentucky wrote a letter to the U.S. Attorney's Office, expressing the opinion that the appeal docketed on May 30, 2000, "is a direct appeal from two judgments denying relief in a collateral attack on a judgment of conviction... not a direct appeal from a judgment of conviction." J.A. at 165.

On May 13, 1997, the Immigration and Naturalization Service ("INS") issued Garcia-Echaverria a Notice to Appear, charging that he was deportable due to his Kentucky drug conviction under two sections of the Immigration and Nationality Act ("INA")§ 237(a)(2)(A)(iii) (codified as 8 U.S.C. § 1227(a)(2)(A)(iii)) for being convicted of an "aggravated felony" and § 237(a)(2)(B)(i) (codified as 8 U.S.C. § 1227(a)(2)(B)(i)) for being convicted of controlled substance offense. On September 7, 1999, an Immigration Judge ("IJ") ordered Garcia-Echaverria removed from the United States. On July 20, 2000, the BIA dismissed Garcia-Echaverria's appeal, finding that a waiver of inadmissibility pursuant to § 212(c) of the INA (originally codified as 8 U.S.C. § 1182(c), but repealed by the Illegal Immigration Reform and Immigrant Responsibility Act ("IIRIRA"), 104 Pub. L. No. 104-208, § 304(b), 110 Stat. 3009 (1996)), was not available to him, and that he was statutorily ineligible for cancellation of removal pursuant to § 240A(a) of the INA (codified at 8 U.S.C. § 1229b).

Garcia-Echaverria was removed on either August 8 or 9, 2000, after he had made filings in the Fifth Circuit and the S.D.N.Y. On August 7, 2000, Garcia-Echaverria filed in the Fifth Circuit a petition for review of the BIA's decision and a motion for a stay of removal, which were docketed on August 10, 2000. After Garcia-Echaverria was removed, the Fifth Circuit declared moot the motion to stay removal and dismissed for lack of jurisdiction the petition for review. While he was held in Oakdale, Louisiana awaiting removal, Garcia-Echaverria sent a petition for a writ of habeas corpus to the S.D.N.Y.2 On August 8, 2000, the S.D.N.Y. ordered the habeas petition to be filed and docketed, transferred the petition to the W.D. La., and stayed removal pending further action by the W.D. La. However, neither Garcia-Echaverria's habeas petition nor the S.D.N.Y.'s orders transferring the petition and granting the stay were entered on the S.D.N.Y.'s docket sheet until August 9, 2000. The W.D. La. did not receive the transferred habeas petition until August 14, 2000, and dismissed the petition for non-payment of filing fees on November 1, 2000.

Garcia-Echaverria was found in the United States on August 31, 2001, when he was stopped for speeding by officers of the Ohio Highway Patrol at Fremont, Ohio. Officers of the Highway Patrol notified the INS, and Garcia-Echaverria was placed in Sandusky County jail pursuant to an INS detainer. On September 4, 2001, INS officer Matthew Hamulak interviewed Garcia-Echaverria after administering Miranda warnings. During this interview, Garcia-Echaverria admitted that he had previously been removed and that he had reentered without obtaining permission from the Attorney General. Garcia-Echaverria also consented to having his fingerprints taken at that time. On September 6, 2001, Hamulak requested from INS headquarters the records pertaining to Garcia-Echaverria's prior removal, which he received on September 22, 2001. On September 14, 2001, INS officer Neal Baker sent Garcia-Echaverria an "INS DETAINEE RESPONSE SHEET," informing Garcia-Echaverria that he would not receive an IJ hearing, that his prior order of deportation had been reinstated, and that he was "awaiting prosecution for Re-Entry after Deportation. No further contact will be made with you by the Detention & Deportation Office until that is resolved." J.A. at 89.

The district court had jurisdiction over Garcia-Echaverria's criminal prosecution pursuant to 18 U.S.C. § 3231 because Garcia-Echaverria was indicted for an offense against the laws of the United States. This court has jurisdiction over the appeal pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742.

II. ANALYSIS
A. Standard of Review

This court reviews de novo the denial of a motion to dismiss an indictment and a collateral attack upon a prior removal order underlying a conviction for unlawful reentry. United States v. Martinez-Rocha, 337 F.3d 566, 568-69 (6th Cir.2003) (discussing the standard of review for a collateral challenge under 8 U.S.C. § 1326(d)). This court also reviews de novo the district court's application of the Speedy Trial Act and of the Federal Rules of Criminal Procedure. United States v. Burke, 345 F.3d 416, 421 (6th Cir.2003), cert. denied, ___ U.S. ___, 124 S.Ct. 1731, 158 L.Ed.2d 412 (2004); United States v. Salgado, 250 F.3d 438, 453 (6th Cir.), cert. denied, 534 U.S. 916, 122 S.Ct. 263, 151 L.Ed.2d 192 (2001).

B. Finality of Kentucky Drug Conviction

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