United States v. Barcenas-Rumualdo

• Decision Date: 18 November 2022
• Docket Number: 21-50795
• Parties: UNITED STATES of America, Plaintiff—Appellee, v. Yobani BARCENAS-RUMUALDO, Defendant—Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

53 F.4th 859

UNITED STATES of America, Plaintiff—Appellee,

v.Yobani BARCENAS-RUMUALDO, Defendant—Appellant.

No. 21-50795

United States Court of Appeals, Fifth Circuit.

FILED November 18, 2022

Scott A. C. Meisler, Esq., U.S. Department of Justice, Washington, DC, Joseph H. Gay, Jr., Assistant U.S. Attorney, U.S. Attorney's Office, Western District of Texas, San Antonio, TX, for Plaintiff-Appellee.

Erik Anthony Hanshew, Assistant Federal Public Defender, Maureen Scott Franco, Federal Public Defender, Federal Public Defender's Office, Western District of Texas, San Antonio, TX, for Defendant-Appellant.

Before Graves, Willett, and Engelhardt, Circuit Judges.

Don R. Willett, Circuit Judge:

Yobani Barcenas-Rumualdo was indicted for illegally reentering the United States, a violation of 8 U.S.C. § 1326. He unsuccessfully moved to dismiss the indictment on equal protection grounds. After a bench trial on stipulated facts, the district court sentenced him to 30 months' imprisonment and three years' supervised release.

On appeal, Barcenas-Rumualdo argues that § 1326 violates the Fifth Amendment's equal protection principles. As for his sentence, he asserts that the district court (1) failed to consider sentencing disparities, (2) improperly considered the timing of an appeal in sentencing him to three years of supervised release, and (3) failed to consider the Sentencing Guidelines' policy on supervised release for deportable defendants. The Government concedes that the district court erred in basing the term of supervised release on the timing of an appeal but otherwise defends Barcenas-Rumualdo's conviction and sentence.

We agree that the district court abused its discretion by considering the appeal clock in determining the appropriate term of supervised release. Accordingly, we VACATE that part of Barcenas-Rumualdo's sentence and REMAND for reconsideration of the supervised-release term. We otherwise AFFIRM Barcenas-Rumualdo's conviction and sentence.

I

On July 21, 2020, United States Border Patrol cameras detected several individuals crossing into the United States from Mexico about seven miles west of the Tornillo Port of Entry. Border Patrol agents found Barcenas-Rumualdo and four others, including his cousin, hiding in a nearby field. When questioned, Barcenas-Rumualdo admitted that he was a citizen of Mexico and had no permission to be in the United States. His immigration record confirmed this, showing that he had been removed from the United States twice before.

Barcenas-Rumualdo was indicted for unlawful reentry into the United States after a prior removal. He moved to dismiss his indictment, arguing that § 1326 is unconstitutional because (1) Congress enacted its predecessor, the Undesirable Aliens Act of 1929 (UAA),¹ out of animus toward Mexican and Latino immigrants, (2) more recent versions of the statute "d[id] not cleanse the law of its original taint," and (3) the statute has a disparate adverse impact on Mexican and Latino individuals.

The district court denied the motion. Starting with the standard, the court rejected the Government's argument that it must apply deferential review since § 1326 pertains to immigration. The district court viewed § 1326's criminal penalties as differentiating it from immigration statutes involving Congress's core power over admission and exclusion of aliens—a power that the Supreme Court has held requires limited judicial interference. Citing cases holding that noncitizen criminal defendants have certain constitutional protections, the district court determined that Congress's authority to adopt criminal immigration penalties was subject to constitutional restraints and the accompanying levels of scrutiny.

Applying general equal protection standards and the framework from Village of Arlington Heights v. Metropolitan Housing Development Corp. ,² the district court held that while the UAA violated equal protection principles, § 1326 and its later amendments did not. The court held that Congress enacted subsequent versions of § 1326 through a "deliberative process" without the desire to discriminate, thus removing any prior discriminatory taint. Because § 1326 had been cleansed, the court declined to address whether the statute could survive any level of scrutiny.

Barcenas-Rumualdo was convicted at a bench trial on stipulated facts. The presentence report (PSR) calculated the Guidelines range as 30–37 months of imprisonment and one to three years of supervised release. Barcenas-Rumualdo did not object to the PSR, and at sentencing he agreed with the district court's calculation of the range. But he argued for a downward departure so that his sentence would match that of his cousin who was arrested with him, had the same reasons for illegally reentering the United States, and had the same prior conviction enhancement for conspiracy to commit aggravated robbery. Barcenas-Rumualdo explained that, even though his cousin had a higher Guidelines range, the sentencing court departed downward because of the age of the identical prior conviction. The district court stated that it was "unimpressed" with Barcenas-Rumualdo's argument because the court had "no way of putting [itself] in [the] place" of his cousin's sentencing court or of knowing what that court "saw in that report, or whatever." After hearing from counsel again on the point, the court mentioned the aggravated robbery conviction and let Barcenas-Rumualdo allocute.

The district court sentenced Barcenas-Rumualdo within the Guidelines range to 30 months' imprisonment and three years' non-reporting supervised release. In sentencing him to a three-year supervised release term, the district court focused solely on allowing Barcenas-Rumualdo time to appeal his conviction. Barcenas-Rumualdo objected to basing the supervised-release sentence on the appellate timeline and reiterated his argument about sentencing disparity. The court overruled the objection, and Barcenas-Rumualdo timely appealed.³

II

We review de novo constitutional questions and the denial of a motion to dismiss an indictment.⁴ By contrast, "[w]e generally review sentences for abuse of discretion."⁵

III

A

Barcenas-Rumualdo challenges his conviction on the ground that the illegal reentry statute, 8 U.S.C. § 1326, is facially unconstitutional under the equal protection principles of the Fifth Amendment. We affirm the district court's holding that § 1326 does not violate the Fifth Amendment.

The Fifth Amendment of the U.S. Constitution provides that "[n]o person shall ... be deprived of life, liberty, or property, without due process of law."⁶ The Supreme Court has interpreted the Fifth Amendment to "contain[ ] an equal protection component prohibiting the United States from invidiously discriminating between individuals or groups."⁷ Generally, a statute that discriminates based on race or alienage is unenforceable unless it is "suitably tailored to serve a compelling state interest."⁸

Section 1326 makes it a crime for any alien who "has been denied admission, excluded, deported, or removed or has departed the United States while an order of exclusion, deportation, or removal is outstanding" to "thereafter enter[ ], attempt[ ] to enter, or [be] at any time found in, the United States" without appropriate authorization.⁹ On its face, § 1326 does not discriminate: All aliens who re-enter the United States without permission after a previous removal are subject to its terms regardless of race or alienage.

Even so, the Supreme Court has held that a facially neutral statute can violate equal protection principles if it has a racially disproportionate impact.¹⁰ To show that such a statute violates equal protection, a challenger must prove that the statute was enacted for a discriminatory purpose or intent and also that it has a disparate impact.¹¹ The burden then shifts to the government to show it would have enacted the law without the discriminatory purpose.

Barcenas-Rumualdo builds his argument around this framework. Pointing to the history of the UAA, Barcenas-Rumualdo argues that § 1326 is built on a rotten foundation of racial animus towards Mexican and Latino immigrants that subsequent amendments did not rectify. In Barcenas-Rumualdo's view, this history plus the statute's alleged disparate impact on Mexican and Latino individuals means that § 1326 is unconstitutional.

Before turning to the merits of Barcenas-Rumualdo's argument, the Government contends that Arlington Heights is the wrong framework to view this claim. Since § 1326 concerns immigration, the Government argues that we should review Barcenas-Rumualdo's challenge under a more deferential standard akin to rational-basis review.

There is ample support for both positions. On one hand, § 1326 is part of Congress's immigration scheme. The Supreme Court and this court have recognized that Congress's broad authority over admission and exclusion warrants limited judicial interference.¹² On the other, § 1326 relates to those already excluded, so it does not unequivocally fall under Congress's exercise of power over admission and exclusion. We have held that "the broad power to control immigration does not imbue Congress with plenary power over aliens themselves."¹³ And the Supreme Court has historically afforded some due process protections to aliens.¹⁴

The district courts that have addressed identical challenges are split on the correct standard of review. But every court but one agrees that § 1326 is constitutional.¹⁵ We need not now resolve which standard of review applies because Barcenas-Rumualdo's equal-protection challenge fails under either standard.

A statute satisfies rational basis review if "there is a rational relationship between the disparity of treatment and some legitimate governmental purpose."¹⁶ "We have stated that to uphold a [government's] classification, a court need find only ‘a conceivable rational basis for the official action.’ "¹⁷ Barcenas-Rumualdo makes no showing that § 1326 is not supported...