U.S. v. Sandoval, No. 03-4161.

• Decision Date: 08 December 2004
• Docket Number: No. 03-4161.
• Citation: 390 F.3d 1294
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Joselito SANDOVAL, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

390 F.3d 1294

UNITED STATES of America, Plaintiff-Appellee, v. Joselito SANDOVAL, Defendant-Appellant.

No. 03-4161.

United States Court of Appeals, Tenth Circuit.

December 8, 2004.

Michael S. Lee, Assistant United States Attorney, Salt Lake City, UT, for Plaintiff-Appellee.

Sharon Preston, Salt Lake City, UT, for Defendant-Appellant.

Before SEYMOUR, MURPHY, and McCONNELL, Circuit Judges.

McCONNELL, Circuit Judge.

Joselito Sandoval was removed from the United States to El Salvador in 1999. After he entered the United States through Mexico in 2002, Mr. Sandoval was arrested and charged with illegal reentry of a removed alien in violation of 8 U.S.C. § 1326. Mr. Sandoval entered a plea of guilty, but, immediately before sentencing, he filed a motion to withdraw his plea on the ground that his counsel failed to advise him of an available defense. In support of his motion, Mr. Sandoval argued that his 1999 deportation proceeding was fundamentally unfair and therefore could not be used to establish an element of the illegal reentry charge. The district court denied the Motion to Withdraw, finding that his deportation proceeding was not fundamentally unfair. The district court entered a judgment of conviction and sentenced Mr. Sandoval to 70 months imprisonment and 36 months of supervised release. Exercising jurisdiction under 18 U.S.C. § 3742(a)(2), we AFFIRM.

I.

Section 212 of the Immigration and Nationality Act of 1952(INA), 8 U.S.C. § 1182, authorized the exclusion of certain aliens from the United States, including aliens convicted of a crime of moral turpitude. Id. § 1182(a)(2)(A)(i)(I). As originally enacted, § 212(c) granted the Attorney General discretion to admit excludable aliens who had resided lawfully in the United States for seven consecutive years. See 8 U.S.C. 1182(c) ("Aliens lawfully admitted for permanent residence who temporarily proceeded abroad voluntarily and not under an order of deportation, and who are returning to a lawful unrelinquished domicile of seven consecutive years, may be admitted in the discretion of the Attorney General...."). The Board of Immigration Appeals interpreted this provision to permit any permanent resident alien with seven years of lawful unrelinquished domicile to apply for a waiver of deportation. See INS v. St. Cyr, 533 U.S. 289, 295, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001) (citing Matter of Silva, 16 I & N Dec. 26, 30 (1976)). However, aliens who had served more than five years in prison for an aggravated felony were not eligible to apply for discretionary relief under § 212(c). See id. at 297, 121 S.Ct. 2271 (citing INA § 511, 104 Stat. 5052).

In 1996, Congress passed two laws that limited the availability of relief under § 212(c). The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) provided that aliens convicted of an aggravated felony, among other offenses, could no longer apply for discretionary relief. See AEDPA § 440(d), Pub.L. 104-132, 110 Stat. 1214, 1277 (amending 8 U.S.C. § 1182(c)). The Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) repealed § 212(c) entirely. IIRIRA § 304(b), Pub.L. 104-208, 110 Stat. 3009-546 (codified at 8 U.S.C. § 1252(a)(2)(C)). The section that replaced § 212(c) does not authorize the Attorney General to grant relief to aliens who have been convicted of an aggravated felony. See 8 U.S.C. § 1229b. Shortly after AEDPA went into effect, the Attorney General ruled that § 440(d) was effective immediately and therefore applied retroactively to aliens in removal proceedings. See In re Soriano, 21 I & N Dec. 516, 519 (1996). The Attorney General ruled, however, that the amendments did not apply retroactively to aliens who had already submitted applications for relief under § 212(c). Id. at 519-21.

In INS v. St. Cyr, the Supreme Court considered the effect of these amendments on aliens who had pleaded guilty to deportable crimes before their effective dates. 533 U.S. at 292-93, 121 S.Ct. 2271.¹ Enrico St. Cyr pleaded guilty to a deportable offense in 1996. Because he had accrued over seven years of lawful permanent residence, he was eligible to apply for discretionary relief under § 212(c) at the time of his plea. Congress passed AEDPA before his removal hearing began, however, and he was not permitted to apply. Id. In his habeas petition, St. Cyr argued that AEDPA did not affect his rights under § 212(c) because he entered his guilty plea before it took effect. Id. at 293, 121 S.Ct. 2271. The Court found that AEDPA did not include a sufficiently clear statement of intent to apply the amendments retroactively; therefore, the statute could not be construed to have any retroactive effect. See id. at 326, 121 S.Ct. 2271. The Court agreed with Mr. St. Cyr that the denial of his right to apply for relief from deportation would give retroactive effect to the 1996 amendments. The Court therefore held that "§ 212(c) relief remains available for aliens, like respondent, whose convictions were obtained through plea agreements and who, notwithstanding those convictions, would have been eligible for § 212(c) relief at the time of their plea under the law then in effect." St. Cyr, 533 U.S. at 326, 121 S.Ct. 2271.

Joselito Sandoval, a native and citizen of El Salvador, came to the United States in 1986 and became a lawful permanent resident on December 1, 1990. In 1993, Mr. Sandoval pleaded guilty to two counts of burglary. The court sentenced him to seven years of imprisonment, with seven years suspended, and placed him on probation. In January 1994, he pleaded guilty to driving while intoxicated. Because this offense violated his probation, the court revoked his probation and sentenced him to five years of imprisonment. He was released after approximately three years and delivered into the custody of the Immigration and Naturalization Service.²

The INS commenced removal proceedings against Mr. Sandoval on August 19, 1997. Although the INS identified the burglary convictions as the grounds for removal, he had accumulated five DWI convictions and one theft conviction by the time of his removal hearing on September 11, 1997. At his hearing, Mr. Sandoval attempted to apply for a waiver of inadmissibility under § 212(c). In an oral ruling the Immigration Judge pretermitted his application, finding that AEDPA § 440(d) barred him from applying. The Board of Immigration Appeals affirmed the Immigration Judge's ruling, citing AEDPA § 440(d) and IIRIRA's specific repeal of § 212(c). Mr. Sandoval appealed the BIA's decision, but the Fifth Circuit dismissed for lack of jurisdiction based on IIRIRA's jurisdiction-stripping provisions. See 8 U.S.C. § 1252(a)(2)(C). The INS removed him to El Salvador on July 30, 1999.

Mr. Sandoval returned to the United States in 2002, crossing the U.S.-Mexico border without inspection. Federal authorities discovered Mr. Sandoval in the Cache County Jail in Logan, Utah on September 16, 2002, and charged him with illegal reentry by a removed alien in violation of 8 U.S.C. § 1326. After extensive questioning by the district court, he entered a guilty plea on January 3, 2003. As part of his plea agreement, he acknowledged that his decision to plead guilty was made knowingly, voluntarily, and with the advice of counsel. He also agreed not to collaterally attack his prior order of removal.

At the beginning of his sentencing hearing on April 24, 2003, Mr. Sandoval submitted a Motion to Withdraw his guilty plea. He argued that his counsel failed to inform him of his right to collaterally attack the underlying removal order. The district court continued the sentencing hearing and requested briefing from both parties. In support of his motion, he argued that the Immigration Judge's refusal to allow him to seek discretionary relief from removal under § 212(c) violated his right to a fair hearing, permitting him to collaterally attack the proceedings under 8 U.S.C. § 1326(d).

The district court denied Mr. Sandoval's motion. The court recognized that INS v. St. Cyr, 533 U.S. 289, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001), preserved the right to apply for discretionary relief for a certain class of deportable aliens. It held, however, that the residual right recognized by St. Cyr was limited to aliens who were eligible to apply for § 212(c) relief on the date of their plea. Because Mr. Sandoval had not yet accumulated seven years of lawful permanent residence, he was not eligible to apply for relief on the date of his plea. The district court therefore found that his right to apply for discretionary relief did not survive AEDPA and IIRIRA and that he failed to present a fair and just reason for withdrawal of his plea. At the sentencing hearing on June 24, 2003, the court sentenced Mr. Sandoval to 70 months imprisonment and 36 months supervised release. He now appeals the denial of his Motion to Withdraw.

II.

We review the district court's denial of the Motion to Withdraw for abuse of discretion. See United States v. Siedlik, 231 F.3d 744, 748 (10th Cir.2000). The district court's ruling on the alleged due process defects in the underlying immigration proceeding is a mixed question of law and fact subject to de novo review. See United States v. Rangel de Aguilar, 308 F.3d 1134, 1137 (10th Cir.2002).

III.

A.

Although a defendant does not have an absolute right to withdraw a guilty plea, see, e.g., Barker v. United States, 579 F.2d 1219, 1223 (10th Cir.1978), the court should view a motion to withdraw with favor, granting the defendant "a great deal of latitude." United States v. Rhodes, 913 F.2d 839, 845 (10th Cir.1990) (quoting United States v. Hickok, 907 F.2d 983, 986 (10th Cir.1990)). The ultimate decision lies within the trial court's discretion, however, and we will not reverse unless the trial court acted "unjustly or unfairly." Siedlik, 231 F.3d at 748 (quoting United States v. Kramer, 168 F.3d 1196, 1202 (10th Cir.1999)).

After the court accepts a plea, but before it imposes a...