U.S. v. Hernnadez-Avalos, HERNANDEZ-AVALO

• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)
• Writing for the Court: E. GRADY JOLLY
• Citation: 251 F.3d 505
• Parties: (5th Cir. 2001) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. JORGEefendant-Appellant
• Docket Number: HERNANDEZ-AVALO,D,No. 00-50186
• Decision Date: 11 May 2001

Page 505

251 F.3d 505 (5th Cir. 2001) UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
JORGE HERNANDEZ-AVALOS, Defendant-Appellant. No. 00-50186 UNITED STATES COURT OF APPEALS, FIFTH CIRCUIT May 11, 2001

Page 506

Appeal from the United States District Court for the Western District of Texas

Before JOLLY, MAGILL^* and BENAVIDES, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

Jorge Hernandez-Avalos ("Hernandez") appeals his conviction for unlawfully reentering the United States after having been removed. See 8 U.S.C. § 1326. Hernandez contends that the unlawful reentry indictment should have been dismissed because the earlier removal proceeding was fundamentally unfair because he was incorrectly removed as an "aggravated felon." He argues that the unfairness stems from the fact that although his conviction was a felony under Colorado law, it was not considered a felony under federal law. Because we do not agree that the removal proceeding was fundamentally unfair, we affirm his conviction.

I

In February 1999, Hernandez, a citizen of Mexico, pleaded guilty in a Colorado court to one count of possession of heroin, a class three felony punishable under the laws of Colorado by up to twelve years in prison. See Colo. Rev. Stat. Ann. §§ 18-18-203, 18-18-405, 18-1-105. A notation on the judgment of conviction suggests that one of the terms of the plea agreement was that Hernandez would "cooperate with [the] INS." The Colorado state court sentenced Hernandez to ninety days' imprisonment followed by six years' probation.

On March 24, 1999, the Immigration and Naturalization Service ("INS") commenced removal proceedings against Hernandez. The "Notice of Intent to Issue a Final Administrative Removal Order" informed Hernandez that his Colorado drug conviction qualified as an "aggravated felony" under 8 U.S.C. § 1101(a)(43). It further informed him that because he had been convicted of an aggravated felony, he was (1) deportable under 8 U.S.C. 1227(a)(2)(A)(iii); (2) subject to expedited administrative removal proceedings under 8 U.S.C. § 1228(b) without a hearing before an immigration judge; and (3) ineligible for any discretionary relief from removal pursuant to 8 U.S.C. § 1228(b)(5). The notice also advised Hernandez of his rights to obtain free legal services and to seek judicial review of a final administrative order within fourteen days unless he waived his right to appeal. The form indicates that an interpreter explained these provisions in Spanish.

Also on March 24, Hernandez signed a waiver (written in Spanish) stating that he did not dispute the INS's factual findings, that he waived his right to a hearing, that he consented to his removal to Mexico, and that he waived his right to seek judicial review of the removal order. The INS issued a "Final Administrative Removal Order," and Hernandez was then removed to Mexico (through El Paso, Texas) on March 30, 1999.

Three days later, on April 2, Hernandez was arrested in El Paso by border patrol agents. The instant indictment followed, which charged him with unlawfully reentering the United States after previously having been removed, in violation of 8 U.S.C. § 1326(a). Because Hernandez was considered an aggravated felon, the government sought enhanced penalties under section 1326(b). Although the maximum length of imprisonment under section 1326(a) is two years, an alien "whose removal was subsequent to a conviction for

Page 507

commission of an aggravated felony" may be sentenced to twenty years in prison. 8 U.S.C. § 1326(b)(2).

Hernandez filed a motion to dismiss the indictment on the grounds that the earlier removal proceeding upon which the indictment was predicated violated due process of law. Specifically, Hernandez argued that he had not been deportable under the aggravated felony provision because his Colorado conviction for simple heroin possession would not have been considered a felony under analogous federal drug laws. The district court denied Hernandez's motion to dismiss, relying on this court's decision in United States v. Hinojosa-Lopez, 130 F.3d 691 (5th Cir. 1997) (holding that a state drug conviction that is a felony under state law constitutes an "aggravated felony" for the purpose of the Sentencing Guidelines).

Following a bench trial on stipulated facts, Hernandez was convicted of unlawfully reentering the United States. The court granted Hernandez's request for a downward departure and sentenced him to thirty months' imprisonment and three years' supervised release. Hernandez now appeals.

II A

The sole issue before this court is whether Hernandez's instant conviction for illegal reentry must be vacated because of flaws in the earlier removal proceeding.¹ We review de novo Hernandez's due process challenge to his conviction. See United States v. Estrada-Tochez, 66 F.3d 733, 735 (5th Cir. 1995).

To successfully collaterally attack an earlier removal order, which serves as an element of an offense under 8 U.S.C. § 1326, an alien must establish that (1) the prior hearing was fundamentally unfair; (2) the hearing effectively eliminated the alien's right to seek judicial review of the removal order; and (3) the procedural deficiencies caused the alien actual prejudice. See United States v. Lopez-Vasquez, 227 F.3d 476, 483 (5th Cir. 2000)(citing United States v. Mendoza-Lopez, 481 U.S. 828, 107 S.Ct. 2148, 95 L.Ed.2d 772 (1987)).

B

Our analysis begins and ends with the question whether the removal proceeding was fundamentally unfair in the sense that it resulted in "a denial of justice" or of due process of law. Animashaun v. INS, 990 F.2d 234, 238 (5th Cir. 1993).

The crux of this case is the meaning of "aggravated felony," which is defined in the Immigration and Nationality Act ("INA") to include "illicit trafficking in a controlled substance . . . , including a drug

Page 508

trafficking crime (as defined in section 924(c) of Title 18)." 8 U.S.C. § 1101(a)(43)(B). In section 924(c), the term "drug trafficking crime" includes "any felony punishable under the Controlled Substances Act (21 U.S.C. § 801 et seq.). . . ." 18 U.S.C. § 924(c)(2)(emphasis added).

In United States v. Hinojosa-Lopez, 130 F.3d 691, 694 (5th Cir. 1997), we interpreted this definition from section 924(c) to mean that a state drug conviction is a "drug trafficking crime" (and thus an aggravated...