U.S. v. Reyna-Tapia
| Decision Date | 28 June 2002 |
| Docket Number | No. 01-10416.,No. 01-10415.,01-10415.,01-10416. |
| Citation | 294 F.3d 1192 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Jose Francisco REYNA-TAPIA, aka Jose Reyna, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Atmore L. Baggot, Apache Junction, AZ, for the defendant-appellant.
Linda C. Boone and Charles Huellmantel, Phoenix, AZ, for the plaintiff-appellee.
Appeal from the United States District Court for the District of Arizona Stephen M. McNamee, Chief District Judge, Presiding.
Before SCHROEDER, Chief Judge, B. FLETCHER and KOZINSKI, Circuit Judges.
We write primarily to establish whether a district court may delegate its duty to conduct a Rule 11 plea colloquy in a felony case to a magistrate judge with the defendant's consent. We hold that it may, provided the district judge reviews the record de novo. In addition, the appellant raises the issue of whether deportation terminates lawful permanent residence. To dispel any doubt, we hold that upon deportation an alien's status as a lawful permanent resident ends.
Reyna-Tapia originally entered the United States illegally in the mid-1980s. In 1990, he became a lawful permanent resident ("LPR") through the amnesty program. See 8 U.S.C. § 1255a (1988). In 1998, Reyna-Tapia pled guilty to the offense of sexual abuse of a minor, an aggravated felony. The INS initiated deportation proceedings against him, pursuant to 8 U.S.C. § 1229, based on the aggravated felony conviction. He was ordered removed from the United States on October 19, 1999.
On October 1, 2000, Reyna-Tapia was found a few miles north of the border between Mexico and Arizona. Magistrate Judge Irwin in Yuma issued an order of temporary detention, which indicated that Reyna-Tapia was "not a citizen of the United States nor lawfully admitted for permanent residence as defined at 8 U.S.C. § 1101(a)(2)." Reyna-Tapia was charged with illegal re-entry. He was also charged with violating the conditions of his supervised release, which he was serving for his prior conviction for sexual abuse of a minor. Reyna-Tapia entered into a written plea agreement with the government, pleading guilty to the offense of reentry after deportation in violation of 8 U.S.C. § 1326(a) enhanced by § 1326(b)(2)1 as charged. Reyna-Tapia consented to having the magistrate judge administer the Rule 11 plea colloquy, which the district court reviewed de novo before accepting the plea.
When the presentence report was prepared, it showed that Reyna-Tapia had become an LPR in 1990. Upon discovering this information in the report, the defense moved to withdraw the guilty plea and for an acquittal. The defense argued that the court should allow Reyna-Tapia to withdraw his guilty plea because his attorney was misled by Magistrate Judge Irwin's temporary order of detention and believed that Reyna-Tapia was not an LPR prior to his deportation. With the new information disclosed in the presentence report, the defense wanted to argue that Reyna-Tapia never lost his status as an LPR, and that if he did, that the termination of his LPR status did not comply with due process.
After listening to the tape of Reyna-Tapia's immigration proceeding, the district court concluded that the 1999 deportation terminated Reyna-Tapia's LPR status and that Reyna-Tapia was not denied due process at his deportation hearing. Therefore, the district court found no just reason to allow Reyna-Tapia to withdraw his plea.
At sentencing, Reyna-Tapia entered an admission to the allegation that he violated the conditions of his supervised release. As a result, his supervised release was revoked, and he was sentenced to 12 months imprisonment to be served concurrently with his 54-month sentence for illegal re-entry.
Reyna-Tapia appeals.2 He contends that the district court erred in refusing to allow him to withdraw his guilty plea and in allowing the magistrate judge to administer the Rule 11 allocution. We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291.
Reyna-Tapia argues that the district court erred in concluding that he did not provide a fair and just reason for withdrawing his guilty plea. He claims that, because his attorney was misled by Magistrate Judge Irwin and did not discover that Reyna-Tapia was an LPR until he read the presentence report, he was unaware of the potential defense that his LPR status was never properly terminated. If his 1999 deportation did not terminate his LPR status, the argument goes Reyna-Tapia committed no crime in re-entering the United States after deportation without the express consent of the Attorney General. The district court concluded that there was no merit to this argument.
The denial of a motion to withdraw a guilty plea prior to sentencing is reviewed for an abuse of discretion. United States v. Nagra, 147 F.3d 875, 880 (9th Cir.1998). The court may allow a defendant to withdraw his guilty plea prior to sentencing "if the defendant shows any fair and just reason." United States v. Hyde, 520 U.S. 670, 671, 117 S.Ct. 1630, 137 L.Ed.2d 935 (1997). Because we too find no merit to Reyna-Tapia's argument that deportation does not terminate an alien's LPR status, we affirm.
The term "lawfully admitted for permanent residence" means "the status of having been lawfully accorded the privilege of residing permanently in the United States as an immigrant in accordance with the immigration laws, such status not having changed." 8 U.S.C. § 1101(a)(20) (2000). According to INS regulations, LPR status terminates upon entry of a final administrative order of deportation.3 8 C.F.R. § 1.1(p) (1998). Reyna-Tapia argues that this regulation conflicts with the statutory definition of "Order of Deportation" at 8 U.S.C. § 1101(a)(47)(A), but we find no conflict between the regulation and the statute.
Section 1101(a)(47)(A) provides:
The term "order of deportation" means the order of the special inquiry officer, or other such administrative officer to whom the Attorney General has delegated the responsibility for determining whether an alien is deportable, concluding that the alien is deportable or ordering deportation.
The statute is silent as to whether or not a final order of deportation ends lawful permanent residence. "[When] the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency's answer is based on a permissible construction of the statute." Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984).
The INS's construction that an order of deportation ends lawful permanent residence is permissible. It is inherently reasonable to conclude that, when an alien is ordered deported, he has lost his "privilege of residing permanently in the United States as an immigrant." 8 U.S.C. § 1101(a)(20). In fact, we have held, without relying on the INS regulations, that an alien's lawful permanent residence terminates for certain purposes when the INS is legally permitted to deport the alien. Foroughi v. INS, 60 F.3d 570, 574 (9th Cir. 1995) ().
In short, the entry of the 1999 deportation order against Reyna-Tapia terminated his LPR status. He needed the Attorney General's express consent to re-enter. Because he did not have such consent, his re-entry was illegal.
Reyna-Tapia contends that, if deportation terminates an alien's LPR status, he was denied due process at his deportation hearing because he was not informed that his LPR status was at risk. In a criminal prosecution for re-entry by a removed alien, a defendant can collaterally challenge his underlying deportation only if he can demonstrate that: (1) his due process rights were violated by defects in the underlying proceeding, and (2) he suffered prejudice as a result of the defects. United States v. Zarate-Martinez, 133 F.3d 1194, 1197 (9th Cir.1998). No one questions that, as an LPR, Reyna-Tapia was entitled to due process of law before he could be removed from the United States.
The district court, after reviewing the record of the underlying removal proceeding, concluded that Reyna-Tapia was not denied due process. We too have reviewed the record of the removal proceeding, including the audio tape of his hearing, and agree with the district court that Reyna-Tapia was afforded due process.
In accordance with the requirements of due process and 8 U.S.C. § 1229, Reyna-Tapia was given notice that the INS was seeking to deport him based on his conviction for sexual abuse of a minor. The notice recognized that Reyna-Tapia was an LPR but asserted that he was deportable because of his aggravated felony conviction. This information should have put Reyna-Tapia on notice that his "privilege of residing permanently in the United States as an immigrant," in other words his LPR status, was at risk. 8 U.S.C. § 1101(a)(20). Reyna-Tapia has identified no valid basis for finding that he was denied due process in his removal proceeding.
Under Federal Rule of Criminal Procedure 11(f), the district court must confirm that there is a factual basis for a guilty plea before entering judgment upon the plea. In this case, the magistrate judge administered the Rule 11 colloquy with Reyna Tapia's consent.4 The magistrate judge verified that Reyna-Tapia understood the rights he was forfeiting by pleading guilty. She also confirmed that he was mentally competent to enter a guilty plea,...
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