U.S. v. Reyna-Tapia

• Decision Date: 09 May 2003
• Docket Number: No. 01-10415.,01-10415.
• Citation: 328 F.3d 1114
• 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

328 F.3d 1114

UNITED STATES of America, Plaintiff-Appellee, v. Jose Francisco REYNA-TAPIA, aka Jose Reyna, Defendant-Appellant.

No. 01-10415.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 27, 2003.

Filed May 9, 2003.

Atmore L. Baggot, Apache Junction, AZ, for the defendant-appellant.

Michael A. Rotker, United States Department of Justice, Criminal Division, Appellate Section, Washington, DC, for the plaintiff-appellee.

Appeal from the United States District Court for the District of Arizona; Stephen M. McNamee, Chief District Judge, Presiding, D.C. Nos. CR-98-00124-SMM, CR-00-01094-SMM.

Before SCHROEDER, Chief Judge, B. FLETCHER, O'SCANNLAIN, T.G. NELSON, KLEINFELD, HAWKINS, TASHIMA, SILVERMAN, WARDLAW, GOULD, and RAWLINSON, Circuit Judges.

OPINION

SILVERMAN, Circuit Judge:

"Congress intended magistrates to play an integral and important role in the federal judicial system." Peretz v. United States, 501 U.S. 923, 928, 111 S.Ct. 2661, 115 L.Ed.2d 808 (1991). We write to clarify the important role that magistrate judges play in conducting plea colloquies pursuant to Federal Rule of Criminal Procedure 11. We hold that Rule 11 plea colloquies involving felonies are additional duties that may be delegated to magistrate judges for findings and recommendation with defendants' consent, and that de novo review of the magistrate judges' findings and recommendations is required if, but only if, one or both parties file objections to the findings and recommendations.

I. Facts and Procedural History

Reyna-Tapia unlawfully entered the United States in the mid-1980s. However, he became a lawful permanent resident ("LPR") in 1990. In 1998, Reyna-Tapia was convicted of sexual abuse of a minor, an aggravated felony. The Immigration and Naturalization Service initiated deportation proceedings against him. He was ordered removed from the United States on October 19, 1999.

On October 1, 2000, Reyna-Tapia was discovered in Arizona and charged with unlawful re-entry after deportation in violation of 8 U.S.C. § 1326(a) enhanced by § 1326(b)(2), and with violating the conditions of his supervised release that he was serving for his prior sexual abuse conviction. Reyna-Tapia entered into a written plea agreement with the government in which he agreed to plead guilty to unlawful re-entry. Reyna-Tapia, his lawyer, and an Assistant U.S. Attorney consented in writing to have the guilty plea taken by a United States Magistrate Judge, whereupon Chief District Judge Stephen M. McNamee referred the matter to Magistrate Judge Virginia A. Mathis.

Judge Mathis conducted a meticulous Rule 11 proceeding after which, with the concurrence of both parties, she made findings that the plea was knowing and voluntary, and that there was a factual basis for it. She recommended that the plea be accepted, submitted her report to Judge McNamee, and provided copies to the parties. After the expiration of the time to file objections to Judge Mathis's report, and none having been filed, Judge McNamee issued a separate order accepting Reyna-Tapia's guilty plea, and directed preparation of a pre-sentence report.¹

When the presentence report was submitted, it reflected that Reyna-Tapia had become a LPR in 1990. Reyna-Tapia then moved to withdraw his guilty plea on the grounds that he had not lost his LPR status by virtue of having been deported, and that, even if he had, the termination of his LPR status did not comply with due process.

Judge McNamee denied Reyna-Tapia's motion for failure to show a fair and just reason. See Fed.R.Crim.P. 32(e). Reyna-Tapia appealed, arguing that the district court abused its discretion in denying his motion to withdraw his guilty plea, and that the district court failed to make a factual determination regarding the validity of the plea at the time of sentencing in accordance with Rule 11(f). A panel affirmed, holding that the district court did not abuse its discretion in denying Reyna-Tapia's motion to withdraw his plea, and that his due process rights had not been violated. United States v. Reyna-Tapia, 294 F.3d 1192, 1195-97 (9th Cir.2002).

The panel further used the case as an opportunity to clarify "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." Id. at 1194. The panel held, "it may, provided the district judge reviews the record de novo." Id. We agreed to rehear the case en banc. United States v. Reyna-Tapia, 315 F.3d 1107 (9th Cir. 2002).

II. Discussion

A. Motion to Withdraw the Guilty Plea

We review a denial of a motion to withdraw a guilty plea for an abuse of discretion. See United States v. Nagra, 147 F.3d 875, 880 (9th Cir.1998). Withdrawal of a guilty plea prior to sentencing may be granted in the district court's informed discretion if the defendant shows any fair and just reason supporting withdrawal. See Fed.R.Crim.P. 32(e).²

Reyna-Tapia asserts that his 1999 deportation did not terminate his LPR status and that, consequently, a fair and just reason to withdraw his guilty plea existed. Reyna-Tapia asserts that the district court's failure to credit his reason to withdraw was an abuse of discretion. We disagree.

An alien lawfully admitted to the United States for permanent residence is one who has "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). INS regulations establish that LPR status terminates upon entry of a final administrative order of deportation. See 8 C.F.R. § 1.1(p) (1998). In addition, we have held that LPR status terminates when an alien is deported. See Foroughi v. INS, 60 F.3d 570, 574 (9th Cir.1995). Furthermore, any reasonable person would know that deportation from the United States means that he or she is no longer permitted to live here. We therefore conclude that Reyna-Tapia failed to establish any fair and just reason to withdraw his guilty plea. The district court did not abuse its discretion by denying Reyna-Tapia's motion.

B. Due Process

Reyna-Tapia's fall-back argument is that, if deportation terminates LPR status, he was denied due process at his deportation hearing because he was never advised that his LPR status would be lost if he was ordered deported. Aliens are entitled to due process. See United States v. Zarate-Martinez, 133 F.3d 1194, 1197 (9th Cir.1998). A defendant charged with unlawful re-entry may collaterally challenge the underlying deportation by establishing that it was ordered in prejudicial violation of due process. Id.

The record establishes that Reyna-Tapia was given notice that the government intended to deport him based on his conviction for sexual abuse of a minor. The notice advised Reyna-Tapia that he was deportable. The district judge reviewed the record of the underlying removal proceedings and concluded that Reyna-Tapia was aware of his rights and voluntarily and intelligently consented to removal. Reyna-Tapia points to nothing in the record challenging the district court's conclusions or otherwise establishing that his due process rights were violated. We find nothing in the record supporting Reyna-Tapia's argument. We therefore conclude that Reyna-Tapia's due process rights were not violated.

C. Authority of Magistrate Judge to Preside over Rule 11 Plea Colloquy

We turn now to Reyna-Tapia's final argument: whether magistrate judges may preside over felony plea colloquies conducted with defendants' consent pursuant to Federal Rule of Criminal Procedure 11, and — if so — whether district court judges are required to review de novo findings and recommendations to which no objection has been filed.

1. The Federal Magistrates Act

The Federal Magistrates Act, 28 U.S.C. §§ 631-39, governs the jurisdiction and authority of federal magistrates. See 28 U.S.C. § 636. The Act provides that certain matters (for example, non-dispositive pretrial matters) may be referred to a magistrate judge for decision,³ while certain other matters (such as case-dispositive motions, petitions for writs of habeas corpus) may be referred only for evidentiary hearing, proposed findings, and recommendations.⁴ The Act also states that a magistrate judge may be "assigned such additional duties as are not inconsistent with the Constitution and laws of the United States." 28 U.S.C. § 636(b)(3).

When a magistrate judge makes proposed findings and recommendations, a copy of the report is to be filed with the court and mailed to the parties forthwith. See 28 U.S.C. § 636(b)(1)(C). The Act provides a procedure by which any party can object to the magistrate judge's findings and recommendations:

Within ten days after being served with a copy, any party may serve and file written objections to such proposed findings and recommendations as provided by rules of court. A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate. The judge may also receive further evidence or recommit the matter to the magistrate with instructions.

28 U.S.C. § 636(b)(1)(C) (emphasis added); see also Fed.R.Civ.P. 72.

2. Authority to Administer Rule 11 Colloquy

We join every other circuit examining the question in holding that the taking of a guilty plea by a magistrate judge, with the litigants' consent, qualifies as an additional duty under § 636(b)(3). See United States v. Torres, 258 F.3d 791, 795-96 (8th Cir.2001); United States v. Dees, 125 F.3d 261, 265 (5th Cir.1997); United States v. Ciapponi, 77 F.3d 1247, 1250-52 (10th Cir. 1996); United States v. Williams, 23 F.3d 629, 633 (2d Cir.1994).

It is true that the taking of guilty pleas is not listed among the duties that...