United States v. Lara-Unzueta

• Decision Date: 19 November 2013
• Docket Number: No. 13–1069.,13–1069.
• Citation: 735 F.3d 954
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Miguel LARA–UNZUETA, Defendant–Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

735 F.3d 954

UNITED STATES of America, Plaintiff–Appellee,

v.Miguel LARA–UNZUETA, Defendant–Appellant.

No. 13–1069.

United States Court of Appeals, Seventh Circuit.

Argued Oct. 2, 2013.

Decided Nov. 19, 2013.

Patrick M. McKenna, Attorney, Michelle Marie Peterson, Attorney, Office of the United States Attorney, Chicago, IL, for Plaintiff–Appellee.

Daniel T. Hansmeier, Attorney, Office of the Federal Public Defender, Springfield, IL, Jonathan E. Hawley, Federal Public Defender, Office of the Federal Public Defender, Peoria, IL, Peter W. Henderson, Attorney Office of the Federal Public Defender Urbana, IL, for Defendant–Appellant.

Before EASTERBROOK, MANION, and ROVNER, Circuit Judges.

MANION, Circuit Judge.

Miguel Lara–Unzueta,¹ a native and citizen of Mexico, was convicted of one count of illegal reentry in violation of 8 U.S.C. § 1326(a) and (b)(2). The district court sentenced him to 78 months' imprisonment. Lara appeals, arguing that the district judge erred by failing to disqualify himself from hearing Lara's motion to dismiss the indictment and that this failure requires vacating the conviction and sentence and remanding to a new judge. Alternatively, Lara argues that the district court erred in failing to dismiss the indictment because Lara was erroneously denied the opportunity to seek discretionary relief from deportation under the Immigration and Nationality Act (“INA”) § 212(c) in his first deportation proceeding in 1997–1998 ² Consequently, he argues that his conviction and sentence should be vacated and this case should be remanded for an evidentiary hearing regarding the likelihood of obtaining relief under INA § 212(c). We hold that the district judge was not disqualified from ruling on Lara's motion to dismiss the indictment. We do not reach the question of whether our circuit's precedents interpreting 8 U.S.C. § 1326(d) foreclose Lara's collateral attack on his underlying deportation order because his counsel concedes the issue. For the reasons that follow, we affirm Lara's conviction and sentence.

I.BACKGROUND

Miguel Lara–Unzueta was born in Mexico on August 13, 1977. He became a temporary resident alien in 1988 and a permanent resident alien in 1990. On March 1, 1996, following a guilty plea, he was convicted in the Circuit Court of Cook County of attempted first degree murder in violation of 720 Ill. Comp. Stat. 5/8–4 and 5/9–1(a)(1) and of armed violence in violation of 720 Ill. Comp. Stat. 5/33A–2. He was sentenced to six years' imprisonment. The indictment charged that Lara and his co-defendants attempted to kill a man by “beat[ing] him about the head and body with their fists, a 2x4 board and a baseball bat.” As a lawful permanent resident who had committed an aggravated felony, Lara was eligible for deportation from the United States to Mexico pursuant to 8 U.S.C. § 1251(a)(2)(A)(iii) (1994) (now 8 U.S.C. § 1227(a)(2)(A)(iii)).

At the time of Lara's 1996 conviction for attempted first degree murder and armed violence, § 212(c) of the INA provided that a person subject to deportation for the commission of an aggravated felony could apply for discretionary relief from deportation, provided that he or she had served no more than five years' imprisonment for all such aggravated felonies and had lived in the United States for at least seven years. On April 24, 1996, while Lara was serving his prison sentence, Congress passed the Anti–Terrorism and Effective Death Penalty Act (“AEDPA”), Pub.L. No. 104–132, 110 Stat. 1214 (1996). AEDPA made aliens deportable by virtue of having committed an aggravated felony ineligible for discretionary relief under § 212(c). AEDPA provided that the denial of discretionary relief from deportation was not reviewable by any court. (AEDPA § 440(a), 110 Stat. 1276–77, codified at 8 U.S.C. § 1105a(a)(10) (1997) (subsequently repealed).)

As a result of Lara's 1996 convictions, the INS initiated a deportation proceeding against Lara in January 1997. At his August 14, 1997, deportation hearing, Lara admitted that he had been convicted of attempted murder and armed violence, but requested a waiver under § 212(c) on the grounds that his convictions did not constitute aggravated felonies. The Immigration Judge (“IJ”) ordered Lara deported, noting that his prior convictions “clearly fall within the definition of ‘aggravated felony.’ ” The IJ further denied Lara's request for a waiver under § 212(c), stating that he was “ineligible for a § 212(c) waiver” under AEDPA.

Lara timely filed a notice of appeal and brief with the Board of Immigration Appeals (“BIA”) seeking discretionary relief.³ On March 30, 1998, the BIA dismissed his appeal, finding that he had been convicted of aggravated felony offenses, and was correctly found to be deportable. The BIA further held that Lara was “statutorily ineligible” for a § 212(c) waiver under AEDPA. The BIA noted that “[i]n reaching our decision, we have considered the respondent's argument that the AEDPA violates the equal protection clause ... because the provisions on § 212(c)” apply only “in deportation proceedings and not in exclusion proceedings.” A warrant for Lara's removal was issued on June 12, 1998, and he was removed from the country on June 25, 1998. Lara did not file a petition for judicial review.

Three years after Lara was removed from the United States, the Supreme Court held, as a matter of statutory interpretation, that the 1996 AEDPA amendments to the INA did not apply to aliens, like Lara, who pleaded guilty to criminal charges prior to the passage of those laws. INS v. St. Cyr, 533 U.S. 289, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001). Thus, in light of St. Cyr, the IJ's and BIA's determinations that the AEDPA amendments automatically precluded Lara from eligibility for discretionary relief under § 212(c) ultimately proved incorrect.

On October 3, 2002, Lara was arrested in Illinois for armed robbery and attempted armed robbery. He was transferred to INS custody and was indicted on October 17, 2002, on one count of illegally reentering the United States in violation of 8 U.S.C. § 1326(a) and (b)(2).⁴ Lara filed a motion to dismiss the indictment, collaterally attacking the underlying deportation order by arguing that he was denied due process when the immigration judge denied him a discretionary hearing under § 212(c). The district court denied Lara's motion to dismiss. United States v. Lara–Unzueta, 287 F.Supp.2d 888 (N.D.Ill.2003).

After denying Lara's motion to dismiss the indictment, the district court held a bench trial on December 5, 2003. Following the trial, Lara was convicted of illegally reentering the country. The district court sentenced him on April 7, 2004, to 65 months' imprisonment.

Lara appealed his 2003 illegal-reentry conviction and sentence, and on May 24, 2005, we affirmed his conviction. United States v. Lara–Unzueta, No. 04–1954 (7th Cir. May 24, 2005) (granting limited remand to solicit the sentencing court's view of the probable result of ordering resentencing under United States v. Paladino, 401 F.3d 471 (7th Cir.2005)). Following his term of imprisonment, Lara was removed on August 30, 2007. Sometime between August 30, 2007, and July 2011, Lara—for the second time—reentered the United States. On July 21, 2011, Lara was charged with one count of illegal reentry in the present case. Specifically, the indictment alleged that on or about June 30, 2011, Lara illegally reentered the United States after prior deportations and removals on June 25, 1998, and August 30, 2007. On April 23, 2012, Lara moved to dismiss the indictment, collaterally attacking (for the second time) the June 25, 1998, removal. On June 20, 2012, District Judge Samuel Der–Yeghiayan denied Lara's motion to dismiss.

After the district court's denial of Lara's motion to dismiss the indictment, he was found guilty following a jury trial on August 6, 2012. Lara was convicted and sentenced to 78 months' imprisonment.

Having concluded this procedural odyssey, we turn to Lara's arguments on appeal.

II.ANALYSIS

Lara first argues that District Judge Samuel Der–Yeghiayan was disqualified from presiding over his trial and sentencing. His arguments are based on 28 U.S.C. § 455(b)(3), the federal judicial disqualification statute, and can be distilled to two principal contentions. First, he argues that because Judge Der–Yeghiayan served as INS District Counsel when Lara was first deported, and because his conviction in this case relates back to that deportation order, he insists Judge Der–Yeghiayan had a role “concerning the proceeding” that subjects him to disqualification under § 455(b)(3). Second, he argues that in United States v. Ruzzano, 247 F.3d 688, 695 (7th Cir.2001), we recognized a rule that disqualifies a Presidentially-appointed United States Attorney who ascends to the federal bench from presiding over trials of defendants whose investigations initiated during the United States Attorney's tenure. Lara argues that this rule applies analogously to Judge Der–Yeghiayan by virtue of his past service as INS District Counsel, arguably the INS equivalent of the Presidentially-appointed United States Attorney. We address these arguments in turn.

A. Judicial Disqualification

Lara first argues that the district judge erred by failing to disqualify himself from ruling on Lara's motion to dismiss and that this failure requires vacating his conviction and sentence and remanding for new proceedings before a new judge. The parties acknowledge that Judge Der–Yeghiayan, who presided over the trial resulting in the conviction and sentence now on appeal, served as District Counsel for the INS in Chicago during 1997–1998.⁵ It is also a fact that INS was the agency responsible for Lara's deportation proceeding resulting from his felony convictions in 1997–1998.

The parties also agree that, if not raised below, a claim under the judicial disqualification statute, 28 U.S.C. § 455(b), is reviewed for plain error, United States v....