U.S. v. Soriano-Hernandez

• Decision Date: 26 November 2002
• Docket Number: No. 01-2789.,01-2789.
• Citation: 310 F.3d 1099
• Parties: UNITED STATES of America, Appellee, v. Ascension SORIANO-HERNANDEZ, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

310 F.3d 1099

UNITED STATES of America, Appellee, v. Ascension SORIANO-HERNANDEZ, Appellant.

No. 01-2789.

United States Court of Appeals, Eighth Circuit.

Submitted: December 11, 2001.

Filed: November 26, 2002.

COPYRIGHT MATERIAL OMITTED

Brent D. Rosenberg, argued, Des Moines, Iowa, for appellant.

Edwin F. Kelly, argued, Des Moines, Iowa, for appellee.

Before McMILLIAN and MURPHY, Circuit Judges, and BATTEY,¹ District Judge.

McMILLIAN, Circuit Judge.

Ascension Soriano-Hernandez ("Defendant") appeals from a final judgment entered in the United States District Court for the Southern District of Iowa² finding him guilty of illegal entry by a removed alien in violation of 8 U.S.C. §§ 1326(a), (b)(2). United States v. Soriano-Hernandez, Crim. No. 00-182 (D.S.D. July 9, 2001) (judgment). For reversal, Defendant argues that the district court erred in holding that his guilty plea waived his statute of limitations defense. Id. (June 29, 2001) (order denying motion to withdraw plea) (hereinafter "District Court Order"). In addition, Defendant argues that the district court abused its discretion in denying his motion to withdraw his guilty plea. He argues that pursuant to Fed.R.Crim.P. 32(e) he presented a fair and just reason to withdraw his plea because his attorney failed to inform him that he had a valid statute of limitations defense, or, in the alternative, because he received ineffective assistance of counsel. For the reasons discussed below, we affirm the judgment of the district court.

Jurisdiction in the district court was proper based on 18 U.S.C. § 3231. Jurisdiction in this Court is proper based on 28 U.S.C. § 1291. The notice of appeal was timely filed pursuant to Fed. R.App. P. 4(b).

BACKGROUND

The facts of this case are not in dispute. Defendant is a Mexican citizen who entered the United States without inspection prior to 1991. On October 8, 1991, the United States Immigration and Naturalization Service ("INS") issued a warrant for deportation on Defendant. Defendant returned to Mexico and, sometime after deportation but prior to March 29, 1992, reentered the United States. He was arrested several times in 1992 and 1993 and gave a false name to the authorities each time he was arrested. In March 1992, he was arrested by the sheriff's office in Cerro Gordo County, Iowa, for possession of marijuana, and he used the alias "Raul Hernandez." In September 1992, Defendant was arrested by the Chicago Police Department in Chicago, Illinois, for possession of cannabis, and he used the alias "Reyes Maldonado." In November 1992, he was arrested by the Chicago Police Department for criminal damage to property, and he used the same alias "Reyes Maldonado." In April 1993, Defendant was arrested by the Chicago police for unlawful use of a weapon and theft of lost property, and he used the alias "Victor Montes." In June 1993, he was arrested by a county sheriff in Morris, Illinois, for possession of marijuana, and he again used the alias "Victor Montes."

After each arrest, local law enforcement authorities took Defendant's fingerprints and sent them to the Federal Bureau of Investigations ("FBI"). Each time, the FBI prepared an identification report on the basis of the fingerprints and sent a copy of the report to the local authorities within sixty days. At the time of the 1992 and 1993 arrests, the INS was not linked to the FBI computer system and did not receive copies of these reports.

The INS first became aware of Defendant's illegal presence in the United States in June 2000, after he was arrested by the Iowa state patrol on June 21, 2000, for falsifying public documents. At that time, Defendant used the alias "Ruben Solis-Martinez." On June 30, 2000, the INS notified Iowa state authorities that Defendant was a deported alien who had illegally reentered the United States.

In August 2000, Defendant was indicted by a federal grand jury and charged with illegal reentry in violation of 8 U.S.C. §§ 1326(a), (b)(2).³ A federal public defender was appointed to represent Defendant, and Defendant pleaded guilty to illegal reentry in October 2000. In January 2001, the federal public defender filed a motion to withdraw as counsel due to a conflict of interest. At the hearing on the motion to withdraw, the federal public defender testified that he had not been aware of the statute of limitations defense at the time he advised Defendant to plead guilty and that he did not discuss such a defense with Defendant at any time. The district court granted the motion and appointed another attorney to represent Defendant.

On April 13, 2001, represented by new counsel, Defendant filed a motion to withdraw his guilty plea on the basis that: (1) 8 U.S.C. § 1326 is subject to the five-year statute of limitations in 18 U.S.C. § 3282⁴; (2) at the time of his plea, Defendant's illegal reentry charge had been barred by the statute of limitations; and (3) Defendant's original attorney had failed to advise him of this defense. On May 4, 2001, the district court denied Defendant's motion, finding that the Defendant failed to present "any fair and just reason" to withdraw the plea under Fed.R.Crim.P. 32(e). United States v. Soriano-Hernandez, slip op. at 2 (May 4, 2001). On June 5, 2001, Defendant filed a second motion to withdraw his guilty plea and a motion to dismiss the indictment. On June 29, 2001, the district court again denied Defendant's motion to withdraw his guilty plea, finding that Defendant waived his statute of limitations defense when he pleaded guilty.⁵ District Court Order at 5-6. The district court also held that, even if the Defendant had not waived the defense by pleading guilty, the statute of limitations did not bar the prosecution because it did not begin to run until the INS was in possession of all the information necessary to bring a prosecution against a previously deported alien. See id. at 7. The district court reasoned that Defendant's use of aliases each time he was arrested prevented the INS from having all of the information required to bring charges against Defendant until June 30, 2000. See id. For that reason, the district court held that the five-year statute of limitations had not expired when defendant was indicted on August 16, 2000. See id. On July 9, 2001, the district court entered a judgment sentencing Defendant to eighty-four months imprisonment, two years of supervised release, and a special assessment of $100.00. This appeal followed.

DISCUSSION

Because it is a question of law, we review de novo the district court's determination that Defendant's guilty plea waived his statute of limitations defense. Cf. United States v. Young, 223 F.3d 905, 909 (8th Cir.2000) (whether a valid waiver of rights occurred is a question of law reviewed de novo) (citations omitted); United States v. Long Crow, 37 F.3d 1319, 1323 (8th Cir.1994) (whether there is sufficient evidence to submit an affirmative defense to a jury is a question of law subject to de novo review) (citations omitted).⁶

Defendant argues that the district court erred in holding that his guilty plea constituted a waiver of the statute of limitations defense. We disagree. As noted by the district court, "[a] plea of guilty, knowingly and understandably made, waives all non-jurisdictional defects and defenses and equates with an admission of guilt." Cantrell v. United States, 413 F.2d 629, 632 (8th Cir.1969) (citations omitted). This court has treated the statute of limitations as an affirmative defense, even when it was styled as a jurisdictional challenge. See United States v. Gomez, 38 F.3d 1031, 1033 n. 4 (8th Cir.1994) (upholding district court decision to deny defendant's motion to dismiss for lack of subject matter jurisdiction, which was based on the statute of limitations) (citing United States v. DeTar, 832 F.2d 1110, 1114-15 (9th Cir.1987)). Moreover, courts in other circuits that have considered the issue have found that the statute of limitations is an affirmative defense, not jurisdictional. See United States v. Williams, 684 F.2d 296, 299 (4th Cir.1982) (statute of limitations in 18 U.S.C. § 3282 is not jurisdictional, but a waivable affirmative defense); see also United States v. Najjar, 283 F.3d 1306, 1309 (11th Cir.2002) ("[T]he expiration of the statute of limitations does not divest a district court of subject matter jurisdiction, but rather constitutes an affirmative defense, which the defendant can waive ....") (citations omitted), cert. denied, ___ U.S. ___, 123 S.Ct. 108, 154 L.Ed.2d 32 (2002); United States v. Spector, 55 F.3d 22, 24 (1st Cir.1995) ("A statute of limitations defense is a waivable affirmative defense, not a jurisdictional bar to prosecution. Failure to raise the defense in a timely manner can result in its waiver, as can an unqualified guilty plea ....") (citations omitted); United States v. Wilson, 26 F.3d 142, 155 (D.C.Cir.1994) (same); United States v. Karlin, 785 F.2d 90, 92-93 (3rd Cir.1986) (same); United States v. Meeker, 701 F.2d 685, 687 (7th Cir.1983) (same). But see United States v. Crossley, 224 F.3d 847, 858 (6th Cir.2000) (the statute of limitations is a bar to prosecution absent an explicit waiver); United States v. Cooper, 956 F.2d 960, 961-62 (10th Cir.1992) (holding that the statute of limitations defense under 18 U.S.C. § 3282 is a jurisdictional bar to prosecution which must be expressly waived by the defendant). Although it has not addressed the issue directly, the Supreme Court has also implied that the statute of limitations is an affirmative defense and not jurisdictional. See Biddinger v. Commissioner of Police, 245 U.S. 128, 135, 38 S.Ct. 41, 62 L.Ed. 193 (1917) ("The statute of limitations is a defense and must be asserted on the trial by the defendant in criminal cases ...."). In this case, Defendant pleaded guilty to illegal reentry and did not raise a statute of limitations defense at the time his plea was entered. Therefore, as the district court correctly...