U.S. v. Romero-Ochoa

• Decision Date: 05 February 2009
• Docket Number: No. 08-30251.,08-30251.
• Citation: 554 F.3d 833
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Antonio ROMERO-OCHOA, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

554 F.3d 833

UNITED STATES of America, Plaintiff-Appellee, v. Antonio ROMERO-OCHOA, Defendant-Appellant.

No. 08-30251.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted January 22, 2009.

Filed February 5, 2009.

Stephen R. Sady, Federal Public Defender, Portland, OR, for the defendant-appellant.

Karin J. Immergut and Claire M. Fay, United States Attorney, Portland, OR, for the plaintiff-appellee.

Appeal from the United States District Court for the District of Oregon; Michael W. Mosman, District Judge, Presiding. D.C. No. 3:07-cr-00325-MO.

Before: ROBERT R. BEEZER, RICHARD C. TALLMAN and MILAN D. SMITH, JR., Circuit Judges.

MILAN D. SMITH, JR., Circuit Judge:

Defendant-Appellant Antonio Romero-Ochoa was indicted by a grand jury for knowingly and unlawfully re-entering the United States after having been previously arrested and deported subsequent to being convicted of an aggravated felony. In a pretrial motion, Romero-Ochoa sought dismissal of the indictment, claiming that the crime of which he was previously convicted was not an aggravated felony, and that, as a result, his indictment incorrectly allowed for a sentencing enhancement on the basis of his prior conviction. He asserted he was entitled under due process to know whether he faced the consequences of conviction following re-entry after an aggravated felony conviction because the sentence would be longer. He claims he cannot make an intelligent decision whether to enter a guilty plea or proceed to trial without a pretrial ruling on this issue.

When the district court denied his motion, Romero-Ochoa next requested that the district court revise the indictment by striking reference to the aggravated nature of the felony. The district court denied that relief as well, indicating that the court would resolve the issue at sentencing. Romero-Ochoa then filed this interlocutory appeal, arguing that the district court's failure to provide a pretrial judicial ruling on the disputed term "aggravated felony" in his indictment constitutes a violation of his Sixth Amendment due process right to notice. We conclude that we do not have jurisdiction to hear this appeal, and we dismiss it accordingly.

FACTUAL AND PROCEDURAL BACKGROUND

On August 21, 2007, a grand jury indicted Romero-Ochoa for knowingly and unlawfully re-entering the United States without express consent, after having previously been arrested and deported from the United States subsequent to an aggravated felony conviction, in violation of 8 U.S.C. § 1326(a) and (b)(2). Romero-Ochoa had two antecedent convictions in state court for Possession of a Schedule II Controlled Substance, Methamphetamine, which is a Class C felony pursuant to Oregon law. OR. REV. STAT. § 475.840(3)(b). Romero-Ochoa pleaded not-guilty to the federal government's unlawful re-entry charge on February 11, 2008.

On May 23, 2008, Romero-Ochoa moved to dismiss his indictment on the basis that it improperly alleged that he was previously convicted of an aggravated felony, as defined under 8 U.S.C. § 1101(a)(43)(B). Specifically, he argued that his prior possession conviction did not constitute an aggravated felony. The government filed a reply, and the district court heard argument on the motion on June 17, 2008. The district court rejected Romero-Ochoa's claims that dismissal or judicial rewriting of the indictment was warranted due to incorrect notice of a sentencing enhancement within the indictment. It then concluded that the issue of whether Romero-Ochoa's previous conviction constitutes an aggravated felony should not be resolved until sentencing, if there ultimately is a conviction in this case. Romero-Ochoa nonetheless filed this interlocutory appeal.

STANDARD OF REVIEW

We determine de novo whether this court may properly exercise jurisdiction over an interlocutory appeal. Special Invs., Inc. v. Aero Air Inc., 360 F.3d 989, 992 (9th Cir.2004).

DISCUSSION

Our jurisdiction is typically limited to final decisions of the district court. 28 U.S.C. § 1291; Abney v. United States, 431 U.S. 651, 656, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977). Romero-Ochoa concedes that the district court has not made a final decision regarding the merits of his claim. He argues, however, that we should exercise jurisdiction over his interlocutory appeal, either because his appeal meets the requirements of the collateral order doctrine, or because he is entitled to a writ of mandamus under the All Writs Act, 28 U.S.C. § 1651. As explained below, neither of these arguments has merit.

A. Collateral Order Doctrine

Romero-Ochoa first argues that the district court's denial of his motion gives us jurisdiction to decide his interlocutory appeal under the collateral order doctrine, first announced in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). The Supreme Court held that as a "practical construction" of § 1291's final decision requirement, appellate courts should exercise jurisdiction over a small class of decisions "too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated." Cohen, 337 U.S. at 546, 69 S.Ct. 1221; see also Digital Equip. Corp. v. Desktop Direct, Inc., 511 U.S. 863, 867, 114 S.Ct. 1992, 128 L.Ed.2d 842 (1994). In order to qualify as a member of this small class, an order must "`[1] conclusively determine the disputed question, [2] resolve an important issue completely separate from the merits of the action, and [3] be effectively unreviewable on appeal from a final judgment.' " Will v. Hallock, 546 U.S. 345, 349, 126 S.Ct. 952, 163 L.Ed.2d 836 (2006) (quoting P.R. Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 144, 113 S.Ct. 684, 121 L.Ed.2d 605 (1993)); Coopers & Lybrand v. Livesay, 437 U.S. 463, 468, 98 S.Ct. 2454, 57 L.Ed.2d 351 (1978). This three-pronged test is frequently referred to as the Cohen test. See, e.g., Digital Equip., 511 U.S. at 869, 114 S.Ct. 1992; Englert v. MacDonell, 551 F.3d 1099 (9th Cir.2009).

The Supreme Court has instructed that the Cohen test should be strictly applied so as to prevent the collateral order doctrine from "swallow[ing] the general rule ... that a party is entitled to a single appeal, to be deferred until final judgment has been entered, in which claims of district court error at any stage of the litigation may be ventilated." Digital Equip., 511 U.S. at 868, 114 S.Ct. 1992 (internal citation omitted). We have held that the decision to hear an order on appeal "should not be made lightly[,] because the principle that appellate review should be deferred pending the final judgment of the district court is central to our system of jurisprudence." United States v. Amlani, 169 F.3d 1189, 1192 (9th Cir.1999).

In applying the Cohen test, we also bear in mind "`the compelling interest in prompt trials'" and the inherent delay of final resolution caused by interlocutory appeals. United States v. Austin, 416 F.3d 1016, 1020 (9th Cir.2005) (quoting Flanagan v. United States, 465 U.S. 259, 265, 104 S.Ct. 1051, 79 L.Ed.2d 288 (1984)). This interest is particularly significant in criminal cases, where "`delay may prejudice the prosecution's ability to prove its case, increase the cost to society of maintaining those defendants subject to pretrial detention, and prolong the period during which defendants released on bail may commit other crimes.'" Austin, 416 F.3d at 1020 (quoting United States v. MacDonald, 435 U.S. 850, 862, 98 S.Ct. 1547, 56 L.Ed.2d 18 (1978)).

"Because collateral jurisdiction requires all three elements [to satisfy the Cohen test], we lack collateral order jurisdiction if even one is not met." McElmurry v. U.S. Bank Nat'l Ass'n, 495 F.3d 1136, 1140 (9th Cir.2007). In this case, none of the three Cohen prongs has been satisfied. Accordingly, we do not have jurisdiction to hear the merits of Romero-Ochoa's claim that the district court's failure to make a pretrial ruling as to the applicability of a sentencing enhancement violated his Sixth Amendment rights.

Under the first prong of the Cohen test, the relevant district court order must "conclusively determine the disputed question." Will, 546 U.S. at 349, 126 S.Ct. 952. Romero-Ochoa seeks to characterize the disputed question in this case as whether a district court judge is required to rule on a sentencing enhancement before trial. He asserts that the district court, by denying his motion to correct the indictment, answered the relevant question. However, the "disputed question" we must decide is the one Romero-Ochoa actually raised before the district court, not the question he has conjured up for purposes of this appeal. He asked the district court to strike the word "aggravated" so he could not be punished more severely and the jury could not make a determination on the question if he was convicted of the illegal re-entry following an unspecific generic felony.

After the district court refused to dismiss the indictment, Romero-Ochoa requested in oral argument that the court strike by interlineation that portion of the indictment alleging that he had been convicted of an aggravated felony. The district court declined to conclusively determine whether the indictment correctly included reference to an aggravated felony, and instead reserved its ruling for post-trial sentencing after any conviction. Because the district court did not "conclusively determine the disputed question" in a pretrial order, the first Cohen prong is not satisfied, and we lack jurisdiction under the collateral order doctrine.

The second Cohen prong is also not satisfied. It requires that the relevant district court order "resolve an important issue completely separate from the merits of the action." Will, 546 U.S. at 349, 126 S.Ct. 952. But, as the Supreme Court held in Abney, an issue at the core of what must be resolved during trial is, by its nature, not "collateral....