U.S. v. Villanueva–diaz

• Decision Date: 01 March 2011
• Docket Number: No. 10–50176.,10–50176.
• Citation: 634 F.3d 844
• Parties: UNITED STATES of America, Plaintiff–Appellee,v.Antonio VILLANUEVA–DIAZ, Defendant–Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

634 F.3d 844

UNITED STATES of America, Plaintiff–Appellee,

v.Antonio VILLANUEVA–DIAZ, Defendant–Appellant.

No. 10–50176.

United States Court of Appeals, Fifth Circuit.

March 1, 2011.

Joseph H. Gay, Jr. and Margaret Mary Embry (argued), Asst. U.S. Attys., San Antonio, TX, for U.S.Javier N. Maldonado (argued), Law Office of Javier N. Maldonado, P.C., Alfonso Otero, Gonzalez & Otero, L.L.C., San Antonio, TX, for Defendant–Appellant.Appeal from the United States District Court for the Western District of Texas.Before GARZA, STEWART and HAYNES, Circuit Judges.HAYNES, Circuit Judge:

Antonio Villanueva–Diaz appeals from his conviction for unlawfully reentering the United States following removal in violation of 8 U.S.C. § 1326. Villanueva–Diaz, formerly a lawful permanent resident alien in the United States, was ordered removed by an immigration judge (“IJ”) in October 1998 after his third conviction under Texas state law for driving while intoxicated (“DWI”). The Board of Immigration Appeals (“BIA”) affirmed the removal order in November 1999, and Villanueva–Diaz was removed to Mexico in November 2000. He was found in the United States in 2009 and charged with unlawful reentry. Villanueva–Diaz contends that his 1999 removal order was obtained unconstitutionally such that his indictment for violating § 1326 was improper. We AFFIRM.

I. Facts and Procedural History

In September 1975, Antonio Villanueva–Diaz, a native and citizen of Mexico, was admitted into the United States as a lawful permanent resident. In April 1997, Villanueva–Diaz pleaded guilty in Texas state court to his third DWI offense, a felony, and received a nine-year suspended sentence. However, in September 1997, he pleaded true to the allegation that he had violated the terms of his supervision, and the nine-year term of imprisonment was enforced.

In June 1998, removal proceedings were instituted against Villanueva–Diaz based upon the allegation that his DWI conviction qualified as an “aggravated felony” under 8 U.S.C. §§ 1227(a)(2)(A)(iii) and 1101(a)(43)(F), that is, as a “crime of violence” under 18 U.S.C. § 16. ¹ During the removal proceedings, Villanueva–Diaz was represented by attorney Patrick Dunne. The IJ ordered Villanueva–Diaz to be removed to Mexico in accordance with that allegation and denied his application for cancellation of removal. On November 4, 1999, the BIA affirmed the IJ's decision.

In its decision, the BIA cited to this court's then-binding decision in Camacho–Marroquin v. INS, 188 F.3d 649, 652 (5th Cir.1999), withdrawn, 222 F.3d 1040 (5th Cir.2000), in which we held that a Texas felony DWI offense was a crime of violence that qualified as an aggravated felony, thereby rendering an alien convicted of that offense removable. Camacho–Marroquin was withdrawn at the alien's request on July 11, 2000. 222 F.3d at 1040. On November 2, 2000, Villanueva–Diaz was removed from the United States. On March 1, 2001, this court held in United States v. Chapa–Garza, 243 F.3d 921, 927 (5th Cir.2001), that a Texas felony DWI offense is not a crime of violence as defined by 18 U.S.C. § 16(b) and therefore did not constitute an aggravated felony for purposes of § 1101(a)(43)(F) and United States Sentencing Guidelines Manual § 2L1.2, which employs the § 1101(a)(43) definition. Although Chapa–Garza was a sentencing appeal, no one disputes that, had Chapa–Garza been decided before Villanueva–Diaz's original removal, our holding that Texas felony DWI was not a crime of violence under § 16(b) and § 1101(a)(43)(F) would also have established that Villanueva–Diaz's conviction was not a removable offense under § 1227(a)(2)(A)(iii).

In July 2009, Villanueva–Diaz was found in a county jail in Texas. He was charged with being unlawfully present in the United States after being previously removed. He filed a motion to dismiss the indictment alleging that he was denied due process in his removal proceedings because Dunne had never informed him of the BIA's decision and Villanueva–Diaz never received a copy of the BIA's decision. He alleged that, if he had known of the BIA's affirmance, he would have filed a petition for review and could have benefitted from this court's ruling in Chapa–Garza, which would have had the effect of restoring his legal resident status and preventing his removal. Villanueva–Diaz further noted that, subsequent to his removal, Dunne had been disbarred based upon Dunne's deficient representation of several other clients.

Other than materials from the immigration proceeding itself, the only evidence presented in the district court regarding what happened in his immigration proceeding came from Villanueva–Diaz's declaration in which he stated that he appeared before the IJ and was ordered deported. He then states that his “lawyer told me that he was going to appeal the decision. I never heard from the lawyer again. I never learned what happened to my appeal. On November 2, 2000, immigration agents took me from the jail and deported me to Mexico. They told me that I had lost my appeal. If I had known that I could appeal my deportation order, I would have asked my family to continue the appeal.” The district court record also contains a copy of Dunne's 2002 disbarment order; Dunne did not testify or file an affidavit in the district court.

The immigration record reveals that Dunne did, in fact, file an appeal of the IJ's ruling to the BIA and lost. Notice of the BIA's decision was sent to him. No evidence suggests that Dunne did not receive the BIA's decision in time to appeal the case to our court.

After conducting a hearing on the motion, the district court denied Villanueva–Diaz's motion to dismiss. Although the district court noted that the result was “very inequitable,” the court found that Dunne's neglect in failing to forward the BIA decision to Villanueva–Diaz or to file a petition for review on his behalf could not be attributed to the government. Accordingly, the district court stated that it was “left with no choice but on legal grounds to deny the motion to dismiss the indictment.”

Villanueva–Diaz entered a conditional guilty plea to the sole charge against him, thereby preserving his right to appeal the denial of his motion to dismiss. The district court sentenced him to time served and one year of supervised release. Villanueva–Diaz filed a timely notice of appeal.

II. Standard of Review

We review de novo the district court's denial of Villanueva–Diaz's motion to dismiss the indictment as well as his underlying constitutional claims. See United States v. Kay, 513 F.3d 432, 440 (5th Cir.2007). We accept all factual findings made by the district court in connection with that ruling unless clearly erroneous. See United States v. Thomas, 15 F.3d 381, 382–83 & n. 4 (5th Cir.1994).

III. Discussion

A. Jurisdiction

The question of whether an appeal is moot is jurisdictional. United States v. Lares–Meraz, 452 F.3d 352, 354–55 (5th Cir.2006) (per curiam). “This Court must raise the question of mootness sua sponte when, as here, it is not raised by a party, and the Court reviews the question de novo.” Id. at 355.² By the time of oral argument in this case, Villanueva–Diaz had only a few days of supervised release left, and that time has now expired. The conclusion of his supervised release raises the question of whether Villanueva–Diaz's appeal is moot. We conclude that it is not.

As Villanueva–Diaz notes, he is not challenging the term of supervised release in and of itself, which challenge might be mooted by the passage of time. Instead, he is challenging his conviction, from which he contends he continues to suffer collateral consequences. The Supreme Court has recognized a presumption “that most criminal convictions do in fact entail adverse collateral legal consequences,” and that “[t]he mere ‘possibility’ [of such consequences] is enough to preserve a criminal case from ending ignominiously in the limbo of mootness,” even after the immediate legal consequences—that is, the criminal sentence—have expired. See Sibron v. New York, 392 U.S. 40, 55, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968) (internal quotations omitted); see also Spencer v. Kemna, 523 U.S. 1, 11–12, 118 S.Ct. 978, 140 L.Ed.2d 43 (1998) (affirming validity of Sibron presumption).

The Government's arguments to the contrary are unavailing here. First, the Government cites United States v. Rosenbaum–Alanis, 483 F.3d 381, 383 (5th Cir.2007), in which we held that the appellant's appeal of his sentence was moot because he had “completed his term of imprisonment and ha[d] been deported.” Id. at 383. By contrast, here, Villanueva–Diaz seeks the vacatur of his conviction and dismissal of the indictment against him. Second, the Government argues that Villanueva–Diaz in fact suffers no collateral consequences from his conviction because he resides in Mexico and not the United States. Villanueva–Diaz does not, however, reside in Mexico willingly, and he would eventually be able to reapply for admission to the United States but for his criminal conviction in this case. See 8 U.S.C. § 1101(a)(43)( O) (defining “aggravated felony” to include a conviction under § 1326); 8 U.S.C. § 1182(a)(9)(A)(i), (ii) (rendering aliens convicted of aggravated felonies permanently inadmissible to the United States). We have previously held that the admissibility bar imposed by § 1182(a)(9)(A) is a “concrete disadvantage” that avoids mootness. See Alwan v. Ashcroft, 388 F.3d 507, 511 (5th Cir.2004). Accordingly, we conclude that this appeal is not moot.

B. Merits1. Exhaustion

The Government argues that Villanueva–Diaz's collateral attack on his removal must fail because Villanueva–Diaz did not first exhaust his administrative remedies as required by 8 U.S.C. § 1326(d)(1). The Government suggests that Villanueva–Diaz should have filed a motion to reopen with the BIA. We conclude that Villanueva–Diaz was not required to do so on the facts of this case. By its terms, the statute only...