U.S. v. Roque-Espinoza, 01-3947.

• Decision Date: 30 July 2003
• Docket Number: No. 01-3947.,01-3947.
• Citation: 338 F.3d 724
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Miseal ROQUE-ESPINOZA, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 724

338 F.3d 724

UNITED STATES of America, Plaintiff-Appellee, v. Miseal ROQUE-ESPINOZA, Defendant-Appellant.

No. 01-3947.

United States Court of Appeals, Seventh Circuit.

Argued January 6, 2003.

Decided July 30, 2003.

Janis M. Susler (argued), People's Law Office, Chicago, IL, for plaintiffs-appellees.

Benna R. Solomon (argued), Meera Werth, Office of the Corporation Counsel, Appeals Division, Chicago, IL, for defendants-appellants.

James Barz (argued), Office of the U.S. Attorney, Chicago, IL, for plaintiff-appellee.

Richard H. Parsons, Andrew J. McGowan (argued), Office of the Federal Public Defender, Peoria, IL, for defendant-appellant.

Before POSNER, DIANE P. WOOD, and WILLIAMS, Circuit Judges.

DIANE P. WOOD, Circuit Judge.

After spending all but the first eight months of his life in the United States, Miseal Roque-Espinoza was removed from the United States and sent back to his native Mexico in July 1998, after serving time in prison for marijuana distribution and attempted murder. Roque-Espinoza illegally re-entered the United States some time in 1999 and was arrested for drunk driving in October 2000. His arrest alerted the immigration authorities to his return, and it was not long thereafter that he was charged with violating 8 U.S.C. § 1326(a) and (b)(2). Roque-Espinoza first pleaded guilty to the charge against him, but then he filed a motion to withdraw his guilty plea in light of the Supreme Court's intervening decision in INS v. St. Cyr, 533 U.S. 289, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001). The district court denied the motion and sentenced Roque-Espinoza to a term of 72 months followed by three years of supervised release. We affirm.

I

Roque-Espinoza was released from the Illinois Department of Corrections after serving three years for drug distribution and attempted murder. As we noted, Roque-Espinoza had lived in the United States since infancy. Nevertheless, he is not a United States citizen, and he suffered the normal consequence of removal (given the nature of his crimes of conviction) in 1998 after he was released from prison.

We have gleaned certain facts about the proceedings that led up to Roque-Espinoza's 1998 removal from the transcripts and the government's filings in the district court. Unfortunately, the record on appeal does not contain tape recordings or a transcript of Roque-Espinoza's removal hearings, and so we are unable to verify exactly what transpired there. We understand, however, that the tapes were available to the parties in the district court proceedings on this matter, and Roque-Espinoza does not now contest the government's characterization of those proceedings, on which we rely in what follows.

Roque-Espinoza was removed following a hearing conducted by an Immigration Judge (IJ) during which he was represented by a lawyer (whom he had obtained after the IJ granted two continuances for that purpose). After the IJ ruled at the merits hearing that Roque-Espinoza was to be removed, Roque-Espinoza's lawyer asked the IJ to grant his client discretionary relief from removal under § 212(c) of the Immigration and Naturalization Act, 8 U.S.C. § 1182(c) (1994) (repealed). The IJ denied that request because he believed that the legislation making such relief available had been repealed. Nonetheless, the IJ informed Roque-Espinoza of his right to appeal the removal order, and Roque-Espinoza's lawyer indicated that his client would take an administrative appeal from that order. Despite this representation, however, he never did so.

Prior to being removed, Roque-Espinoza was warned that he could re-enter the United States only with the permission of the Attorney General. This warning obviously made little impression on him, because a short time later, sometime in 1999, he surreptitiously returned to the United States. Once back, he failed to keep a low profile; instead, he was arrested on October 14, 2000, by the Bellwood, Illinois, police for drunk driving. That arrest set in motion the chain of events that led to federal charges of unlawful re-entry in violation of 8 U.S.C. § 1326(a) and (b)(2), which is the statute that makes it a crime for an alien to enter the United States following an earlier denial of admission, exclusion or removal without the permission of the Attorney General. It is uncontested that Roque-Espinoza did not seek permission from the Attorney General prior to re-entering the United States. Roque-Espinoza pleaded guilty to these charges on May 10, 2001.

Three and one half months after Roque-Espinoza entered his guilty plea, his lawyer sought permission from the court to withdraw the plea. His reason was that the Supreme Court's decision in St. Cyr, which was rendered after his guilty plea, demonstrated that his earlier removal in 1998 could not as a matter of law serve as a predicate for the § 1326 conviction. St. Cyr held that the repeal of § 212(c) discretionary relief from removal contained in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Pub. L. No. 104-208, 110 Stat. 3009 (Sept. 30, 1996), does not apply retroactively to defendants who pleaded guilty to criminal charges prior to the act's passage. 533 U.S. at 326, 121 S.Ct. 2271. Roque-Espinoza had pleaded guilty on June 15, 1995, to the state drug and attempted murder charges that had first landed him in state prison and then supported his 1998 removal. Roque-Espinoza argues that St. Cyr establishes that his 1998 removal was invalid because it was premised on the IJ's erroneous advice that he was ineligible for discretionary relief from removal. In fact, he continues, it is now clear that he was eligible to apply for such relief given the date of the state guilty plea. If he can strike down the 1998 removal, his § 1326 charges are also unsupported, because the 1998 removal is an essential element of the § 1326 offense. The district court, however, found that St. Cyr did not effect a change in the law that could help Roque-Espinoza. It denied his motion to withdraw the guilty plea on October 11, 2001, and sentenced him to 72 months' imprisonment on November 1, 2001.

II

The Federal Rules of Criminal Procedure allow a defendant to withdraw a guilty plea for "a fair and just reason." United States v. Bennett, 332 F.3d 1094, 1099 & n. 1 (7th Cir.2003) (citing FED. R. CRIM. P. 11(d)(2)(B)).¹ Nonetheless, this is a narrow escape hatch from a plea entered following a proper Rule 11 colloquy. See, e.g., Bennett, 332 F.3d at 1099 (explaining guilty plea following Rule 11 colloquy enjoys "presumption of verity"); United States v. Hodges, 259 F.3d 655, 661 (7th Cir.2001); United States v. Gomez-Orozco, 188 F.3d 422, 425 (7th Cir.1999). Roque-Espinoza bears the burden of showing that a fair and just reason exists for the withdrawal of his guilty plea, United States v. Parker, 245 F.3d 974, 976 (7th Cir.2001), and we review the district court's decision denying his motion to withdraw his guilty plea for an abuse of discretion, Bennett, 332 F.3d at 1099.

Roque-Espinoza urges us to find just such an abuse of discretion in the district court's ruling. In his view, St. Cyr establishes that the IJ erred in finding him ineligible for discretionary relief from removal. This error, he continues, is enough by itself to invalidate his original removal. If he is entitled to present his arguments on the merits of that removal in this collateral attack, and he persuades us that St. Cyr indeed has the effect he claims, then he asserts that he has a winning defense to the charge of illegal re-entry in violation of § 1326. In making this argument, Roque-Espinoza also invokes the Supreme Court's decision in United States v. Mendoza-Lopez, 481 U.S. 828, 107 S.Ct. 2148, 95 L.Ed.2d 772 (1987), which held that in order to rely on a prior deportation as an element of the crime of unlawful re-entry, the proceedings leading up to a deportation (as removal was then called) must comport with principles of due process. Id. at 837, 107 S.Ct. 2148. The IJ's mistake here, he concludes, was so serious that it tainted the entire removal proceeding and caused it to fall short of the due process to which he was entitled.

We pause at the outset to reject the "waiver" argument that the government advances in response to Roque-Espinoza's appeal. (The government uses the term "waiver" in its brief, but we think the more accurate characterization of the argument it presents is forfeiture.) The government asserts, in effect, that Roque-Espinoza has forfeited the argument that he presses on appeal because he failed to develop it fully before the district court. It seizes on the fact that Roque-Espinoza's motion to withdraw his guilty plea and memorandum of law in support of that motion did not in so many words allege a due process violation at his removal hearings or that he was deprived of the opportunity to seek judicial review of the removal order. In the government's view, these shortcomings in Roque-Espinoza's filings before the district court mean that he has forfeited his right to pursue this claim on appeal.

No one would call Roque-Espinoza's motion to withdraw his guilty plea and the supporting memorandum models of trial advocacy, but that does not mean that they were so wanting that we should find forfeiture. At worst, the arguments he is presenting now were woefully underdeveloped. But Roque-Espinoza did indicate that he was trying to make a collateral attack on the IJ's 1998 removal order on the basis of a violation of his due process rights at the removal hearing. His motion to withdraw his guilty plea and the supporting memorandum of law cited the Supreme Court's decisions in St. Cyr and Mendoza-Lopez. The district judge was plainly able to discern from Roque-Espinoza's filings that he was relying on a combination of Mendoza-Lopez and St. Cyr to attack his 1998 deportation. We therefore reject the government's argument and move on to the merits.

In United States v....