U.S. v. Zuniga-Guerrero

• Decision Date: 23 August 2006
• Docket Number: No. 05-6457.,05-6457.
• Citation: 460 F.3d 733
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Francisco ZUÑIGA-GUERRERO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

460 F.3d 733

UNITED STATES of America, Plaintiff-Appellee, v. Francisco ZUÑIGA-GUERRERO, Defendant-Appellant.

No. 05-6457.

United States Court of Appeals, Sixth Circuit.

Argued: July 21, 2006.

Decided and Filed: August 23, 2006.

ARGUED:

Michael C. Holley, Federal Public Defender's Office, Nashville, Tennessee, for Appellant. Byron M. Jones, Assistant United States Attorney, Nashville, Tennessee, for Appellee.

ON BRIEF:

Michael C. Holley, Caryll S. Alpert, Federal Public Defender's Office, Nashville, Tennessee, for Appellant. Byron M. Jones, Assistant United States Attorney, Nashville, Tennessee, for Appellee.

Before: GILMAN and COOK, Circuit Judges; DOWD, District Judge.^*

OPINION

COOK, Circuit Judge.

Francisco Zuñiga-Guerrero ("Zuñiga") appeals his conviction and sentence for illegally reentering the United States following deportation. He argues that the deportation underlying his conviction was fundamentally unfair because the presiding immigration judge failed to consider him for a discretionary waiver of deportation. He also challenges the sentence imposed following his conviction. Because the immigration judge correctly determined Zuñiga to be ineligible for a waiver of deportation, and because Zuñiga fails to identify any sentencing error, we affirm.

I

Zuñiga entered the United States from Mexico in 1984 and became a lawful permanent resident in 1991. In 1995, he participated in a drug conspiracy, and, in September 1996, he pleaded guilty to unlawfully using a communication facility, 21 U.S.C. § 843(b), for which he received a 33-month prison sentence. The former Immigration and Naturalization Service ("INS") initiated removal¹ proceedings against Zuñiga while he served his prison sentence, and the immigration judge ("IJ") informed Zuñiga that he was ineligible for a discretionary waiver of deportation. Upon Zuñiga's release from prison, INS deported him to Mexico.

Zuñiga surfaced in Tennessee in 2004, and was prosecuted for illegal reentry after deportation in violation of 8 U.S.C. § 1326(b)(2). In the district court, Zuñiga challenged his indictment. He argued that, at the time of his removal hearing, he was eligible for a discretionary waiver of deportation, and the IJ's contrary statement rendered his deportation fundamentally unfair. The district court rejected Zuñiga's challenge to his indictment and convicted him of the charged crime after a bench trial in which Zuñiga stipulated to all facts except the propriety of his deportation. Zuñiga appeals his conviction and his 63-month sentence.

II

A. Fundamental Fairness

"This court reviews de novo the denial of a motion to dismiss an indictment and a collateral attack upon a prior removal order underlying a conviction for unlawful reentry." United States v. Garcia-Echaverria, 374 F.3d 440, 445 (6th Cir. 2004). Zuñiga correctly notes that a defendant accused of illegal reentry may collaterally attack his prior deportation if: (1) the defendant has exhausted his administrative remedies; (2) the deportation proceedings improperly deprived the defendant of judicial review; and (3) the deportation order was fundamentally unfair. 8 U.S.C. § 1326(d). This case centers on the third element.

B. Retroactivity

Zuñiga maintains that his deportation was fundamentally unfair because the IJ retroactively applied a 1996 law— passed as part of the Antiterrorism and Effective Death Penalty Act ("AEDPA")—in determining Zuñiga to be ineligible for a waiver of deportation. Before AEDPA, the Board of Immigration Appeals interpreted § 212(c) of the Immigration and Nationality Act, 8 U.S.C. § 1182(c) (1994), to grant the Attorney General discretion to waive the deportation of certain aliens, see INS v. St. Cyr, 533 U.S. 289, 294-95, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001), including lawful permanent residents domiciled in the United States for seven consecutive years. Elia v. Gonzales, 431 F.3d 268, 273 (6th Cir.2005). Section 212(c) prohibited waiver, however, for aliens convicted of aggravated felonies and sentenced to terms of five or more years in prison. Id.

With AEDPA, Congress substantially curtailed the Attorney General's discretion, eliminating waiver of deportation in any case in which the alien committed an aggravated felony. AEDPA took effect on April 24, 1996—after Zuñiga's indictment for the drug conspiracy but before he pleaded guilty, and before INS initiated removal proceedings. In In re Soriano, 21 I. & N. Dec. 516, 519-20 (BIA 1996), the Board of Immigration Appeals decided that AEDPA barred waiver in any proceeding where the alien had not applied for waiver before AEDPA's effective date. Adhering to Soriano, the IJ determined that AEDPA rendered Zuñiga ineligible for any waiver of deportation.

Zuñiga argues that applying AEDPA to his deportation proceedings created an impermissible retroactive effect. To support his argument, he points to St. Cyr, 533 U.S. 289, 121 S.Ct. 2271, 150 L.Ed.2d 347. There, the Supreme Court implicitly overruled Soriano with respect to "aliens . . . 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." Id. at 326, 121 S.Ct. 2271. St. Cyr involved the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), an act that took effect shortly after AEDPA and further reduced the Attorney General's discretion to grant relief. See id. at 297, 121 S.Ct. 2271. Noting the quid pro quo nature of a plea bargain, id. at 321-22, 121 S.Ct. 2271, the Court applied the Landgraf retroactivity analysis and determined that, "[b]ecause [St. Cyr], and other aliens like him, almost certainly relied upon [waiver eligibility] in deciding whether to forgo their right to a trial, the elimination of any possibility of § 212(c) relief by IIRIRA has an obvious and severe retroactive effect." Id. at 325, 121 S.Ct. 2271. Thus the Court held that "`familiar considerations of fair notice, reasonable reliance, and settled expectations'" prohibited retroactive application of the IIRIRA to bar relief for such aliens. Id. at 323-24, 121 S.Ct. 2271 (quoting Landgraf v. USI Film Prods., 511 U.S. 244, 270, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994)).

Like the Court in St. Cyr, we apply the Landgraf analysis in determining AEDPA's reach in this case. The first step of the analysis is to ascertain whether Congress clearly intended its legislation to operate retroactively. Id. at 316, 121 S.Ct. 2271. This court has already concluded that "the language of AEDPA reveals nothing regarding Congress's intent." Thaqi v. Jenifer, 377 F.3d 500, 503 (6th Cir.2004); see Armendariz-Montoya v. Sonchik, 291 F.3d 1116, 1121 (9th Cir.2002) ("Congress did not prescribe § 440(d)'s temporal reach."). We thus turn to the second step of the Landgraf analysis: whether applying AEDPA to Zuñiga's case creates a retroactive effect. St. Cyr, 533 U.S. at 320, 121 S.Ct. 2271.

"A statute does not operate `retrospectively' merely because it is applied in a case arising from conduct antedating the statute's enactment or upsets expectations based in prior law." Landgraf, 511 U.S. at 269, 114 S.Ct. 1483 (citation omitted). Instead, the retroactivity analysis turns on

whether the new provision attaches new legal consequences to events completed before its enactment. The conclusion that a particular rule operates "retroactively" comes at the end of a process of judgment concerning the nature and extent of the change in the law and the degree of connection between the operation of the new rule and a relevant past event. . . . [F]amiliar considerations of fair notice, reasonable reliance, and settled expectations offer sound guidance.

Id. at 270, 114 S.Ct. 1483.

Zuñiga asks us to adopt the view that AEDPA applies only to bar waiver for aliens who committed a deportable offense after April 24, 1996. See generally Mohammed v. Reno, 205 F.Supp.2d 39, 48 (E.D.N.Y.2002) (favoring such a rule). We know of no circuit that has adopted this approach; in fact, our sister circuits have uniformly noted "the absurdity of arguing that one would not have committed a crime in the first place . . . if he had known he could not ask for a § 212(c) waiver." Kelava v. Gonzales, 434 F.3d 1120, 1125 (9th Cir.2006); see also Khan v. Ashcroft, 352 F.3d 521, 523 (2d Cir.2003); LaGuerre v. Reno, 164 F.3d 1035, 1041 (7th Cir.1998). And our prior opinions foreclose Zuñiga's interpretation. See Garcia-Echaverria v. United States, 376 F.3d 507, 516 (2004) (holding that habeas petitioner "became ineligible for a waiver of deportation" "[b]ecause he pleaded guilty . . . after the AEDPA was enacted on April 24, 1996"); see also Patel v. Gonzales, 432 F.3d 685, 691 (6th Cir.2005) ("This Court stated [in Garcia-Echaverria] that the relevant conduct was the guilty plea and not when the offense was committed, presumably because the guilty plea was more likely than the criminal offense to be made in reliance on the waiver."). We conclude that AEDPA is permissibly applied to bar discretionary waiver to aliens who committed criminal conduct before AEDPA's enactment.

Zuñiga alternatively asks this court to find that AEDPA creates a retroactive effect in his situation because he rejected an offered plea bargain two days before AEDPA took effect. Pointing to the Third Circuit's decision in Ponnapula v. Ashcroft, 373 F.3d 480 (3d Cir.2004), he argues that aliens who reject offered plea bargains rely on waiver eligibility just as much as those who, like St. Cyr, accept such offers. See Ponnapula, 373 F.3d at 496 ("[I]f it was reasonable in St. Cyr for an alien to rely on the attenuated availability of § 212(c) relief in accepting a plea agreement, we see no reason why it would be unreasonable for the same alien to likewise rely in declining a plea agreement."). We disagree.

Unlike St. Cyr, Zuñiga does not belong to a class of aliens whose actions "were likely...