U.S. v. Torres-Sanchez, TORRES-SANCHEZ

CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)
Writing for the CourtBefore McMILLIAN, BEAM, and HANSEN; HANSEN
Citation68 F.3d 227
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Felipe, also known as Carlos Sanchez, also known as Felipe Lopez, also known as Carlos Fernandez, also known as Felipe Torres-Lopez, also known as Ramiro Hypolito-Sanchez, also known as Tomas Fernandez-Sanchez, also known as Felipe Lopez-Torres, also known as Felipe Torres, also known as Felipe Torrez-Lopez, also known as Carlos Hypolito-Sanchez, also known as Raymond Saenz, also known as Jesus Medina-Almada, also known as Remedios Fernandez-Sanchez, also known as Carlos Hipolito-Sanchez, also known as Felipe Torrez, Defendant-Appellant.
Docket NumberTORRES-SANCHEZ,No. 95-1457
Decision Date13 October 1995

Page 227

68 F.3d 227
UNITED STATES of America, Plaintiff-Appellee,
v.
Felipe TORRES-SANCHEZ, also known as Carlos Sanchez, also
known as Felipe Lopez, also known as Carlos Fernandez, also
known as Felipe Torres-Lopez, also known as Ramiro
Hypolito-Sanchez, also known as Tomas Fernandez-Sanchez,
also known as Felipe Lopez-Torres, also known as Felipe
Torres, also known as Felipe Torrez-Lopez, also known as
Carlos Hypolito-Sanchez, also known as Raymond Saenz, also
known as Jesus Medina-Almada, also known as Remedios
Fernandez-Sanchez, also known as Carlos Hipolito-Sanchez,
also known as Felipe Torrez, Defendant-Appellant.
No. 95-1457.
United States Court of Appeals,
Eighth Circuit.
Submitted May 15, 1995.
Decided Oct. 13, 1995.

Page 228

Fredilyn Sison, Asst. Federal Public Defender, of Omaha, Nebraska, argued, for appellant.

Daniel Alan Morris, Asst. U.S. Attorney, of Omaha, Nebraska, argued, for appellee.

Before McMILLIAN, BEAM, and HANSEN, Circuit Judges.

HANSEN, Circuit Judge.

Felipe Torres-Sanchez entered a conditional plea of guilty to a one-count indictment charging him with illegal reentry after deportation, in violation of 8 U.S.C. Sec. 1326. Torres-Sanchez reserved the right to appeal the district court's 1 denial of his pretrial motion

Page 229

to dismiss, in which he collaterally attacked the constitutional validity of his prior deportation hearing. We affirm.

I.

Felipe Torres-Sanchez is a Mexican national. He entered the United States on March 29, 1989, at Laredo, Texas. The same day, he was deported to Mexico for entering without being inspected or admitted by a United States Immigration Officer. Shortly thereafter, he returned to this country without the consent of the United States Attorney General. He was convicted in Nebraska of attempted possession of cocaine in October 1989 and of distribution of a controlled substance in May 1990. Based upon these Nebraska state drug convictions and his earlier deportation, an Immigration Law Judge (ILJ) entered a new deportation order against Torres-Sanchez after a hearing on June 6, 1991, again deporting him to Mexico.

Despite this deportation order, Torres-Sanchez returned to Nebraska. On June 17, 1994, the government filed a one-count indictment, charging him with the felony of unlawful reentry after deportation and after having been convicted of an aggravated felony. 8 U.S.C. Sec. 1326(b). The definition of an aggravated felony includes a conviction for illicit trafficking of a controlled substance. 8 U.S.C. Sec. 1101(a)(43)(B). Torres-Sanchez mounted a collateral attack against the prior predicate deportation by filing a motion to dismiss the indictment. He argued that several errors which he says occurred at the deportation hearing, including the denial of his right to counsel, violated his right to due process, and thus the 1991 deportation could not be used as the predicate to this criminal offense. Following an evidentiary hearing, the magistrate judge recommended that the district court deny the motion to dismiss, concluding among other things that Torres-Sanchez had knowingly and intelligently waived his right to counsel at the deportation hearing. The district court adopted the report and recommendation in its entirety and denied Torres-Sanchez's motion to dismiss the indictment.

Torres-Sanchez ultimately entered a conditional plea of guilty, reserving his right to appeal the disposition of his pretrial motion to dismiss. The district court sentenced him to 46 months of imprisonment to be followed by 3 years of supervised release.

II.

Torres-Sanchez now appeals, contending that the district court erred by denying his motion to dismiss the indictment in which he collaterally attacked the constitutional validity of his June 6, 1991, deportation proceeding. Specifically, he contends that he was deprived of his right to counsel and suffered prejudice as a result. We review de novo the district court's denial of the motion to dismiss because it addresses a mixed question of law and fact, involving the determination of whether the facts establish a constitutional violation. See Falls v. Nesbitt, 966 F.2d 375, 377 (8th Cir.1992) (findings of fact will not be set aside except for clear error, but we review de novo whether the facts establish a constitutional violation). See also United States v. Valdez, 917 F.2d 466, 468 (10th Cir.1990) (de novo review for collateral attack on deportation proceeding in Sec. 1326 prosecution because it is a mixed question of law and fact involving constitutional rights).

Section 1326 provides for the prosecution of an alien who, having been previously deported and previously convicted of an aggravated felony, reenters the United States without the consent of the Attorney General. 8 U.S.C. Sec. 1326(b). In a section 1326 prosecution for illegal reentry, proof that the prior deportation was lawful is not required as an element of the offense. United States v. Mendoza-Lopez, 481 U.S. 828, 837, 107 S.Ct. 2148, 2154-55, 95 L.Ed.2d 772 (1987). The Supreme Court in Mendoza-Lopez discerned that "[t]he text and background of Sec. 1326 indicate no congressional intent to sanction challenges to deportation orders in proceedings under Sec. 1326." Id. Nevertheless, the

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Court recognized that in certain circumstances, such a challenge is required to ensure due process. Id.

In a section 1326 prosecution, the defendant may collaterally attack the underlying deportation proceedings and prevent the government from using them as a basis for conviction if (1) an error in the deportation proceedings rendered the proceedings fundamentally unfair in violation of due process, and (2) the error functionally deprived the alien of the right to judicial review. 2 Mendoza-Lopez, 481 U.S. at 840, 107 S.Ct. at 2156. See United States v. Encarnacion-Galvez, 964 F.2d 402, 406 (5th Cir.) (noting that Mendoza-Lopez presupposes a two-step process), cert. denied, --- U.S. ----, 113 S.Ct. 391, 121 L.Ed.2d 299 (1992). Both components are required for a successful collateral attack. Encarnacion-Galvez, 964 F.2d at 406. We begin our analysis with the first component of Mendoza-Lopez--determining whether...

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60 practice notes
  • U.S. v. Fernandez-Antonia, Docket No. 01-1030.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • January 29, 2002
    ...proceedings "may well have resulted in a deportation that would not otherwise have occurred." United States v. Torres-Sanchez, 68 F.3d 227, 230 (8th Cir.1995) (quoting Santos-Vanegas, 878 F.2d at 251) (footnote and internal citations The purpose of collateral review in a § 1326 pr......
  • United States v. Charleswell, No. 04–4513.
    • United States
    • U.S. Court of Appeals — Third Circuit
    • August 1, 2006
    ...a fundamental procedural error and prejudice resulting from that error.”) (internal quotations omitted); United States v. Torres–Sanchez, 68 F.3d 227, 230 (8th Cir.1995) (“[T]he establishment of a fundamentally unfair hearing in violation of due process requires a showing both of a fundamen......
  • U.S. v. Charleswell, No. 04-4513.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • August 1, 2006
    ...procedural error and prejudice resulting from that error.") (internal quotations omitted); United States v. Torres-Sanchez, 68 F.3d 227, 230 (8th Cir.1995) ("[T]he establishment of a fundamentally unfair hearing in violation of due process requires a showing both of a fundamental ......
  • U.S. v. Aragon-Ruiz, Criminal No. 07-341 (DSD/JSM).
    • United States
    • United States District Courts. 8th Circuit. United States District Court of Minnesota
    • March 14, 2008
    ...to judicial review.'" United States v. Mendez-Morales, 384 F.3d 927, 929 (8th Cir.2004) (quoting United States v. Torres-Sanchez, 68 F.3d 227, 230 (8th Pursuant to § 1326(d), an alien may not challenge the validity of the deportation order unless the alien demonstrates that "(1) t......
  • Request a trial to view additional results
60 cases
  • U.S. v. Fernandez-Antonia, Docket No. 01-1030.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • January 29, 2002
    ...proceedings "may well have resulted in a deportation that would not otherwise have occurred." United States v. Torres-Sanchez, 68 F.3d 227, 230 (8th Cir.1995) (quoting Santos-Vanegas, 878 F.2d at 251) (footnote and internal citations The purpose of collateral review in a § 1326 pr......
  • United States v. Charleswell, No. 04–4513.
    • United States
    • U.S. Court of Appeals — Third Circuit
    • August 1, 2006
    ...a fundamental procedural error and prejudice resulting from that error.”) (internal quotations omitted); United States v. Torres–Sanchez, 68 F.3d 227, 230 (8th Cir.1995) (“[T]he establishment of a fundamentally unfair hearing in violation of due process requires a showing both of a fundamen......
  • U.S. v. Charleswell, No. 04-4513.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • August 1, 2006
    ...procedural error and prejudice resulting from that error.") (internal quotations omitted); United States v. Torres-Sanchez, 68 F.3d 227, 230 (8th Cir.1995) ("[T]he establishment of a fundamentally unfair hearing in violation of due process requires a showing both of a fundamental ......
  • U.S. v. Aragon-Ruiz, Criminal No. 07-341 (DSD/JSM).
    • United States
    • United States District Courts. 8th Circuit. United States District Court of Minnesota
    • March 14, 2008
    ...to judicial review.'" United States v. Mendez-Morales, 384 F.3d 927, 929 (8th Cir.2004) (quoting United States v. Torres-Sanchez, 68 F.3d 227, 230 (8th Pursuant to § 1326(d), an alien may not challenge the validity of the deportation order unless the alien demonstrates that "(1) t......
  • Request a trial to view additional results

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