United States v. Rojas–Pedroza

• Decision Date: 28 May 2013
• Docket Number: Nos. 11–50379,11–50381.,s. 11–50379
• Citation: 716 F.3d 1253
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Venancio ROJAS–PEDROZA, Defendant–Appellant. United States of America, Plaintiff–Appellee, v. Vernancio Rojas–Pedroza, AKA Venancio Rojas–Pedroza, Defendant–Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

716 F.3d 1253

UNITED STATES of America, Plaintiff–Appellee,

v.Venancio ROJAS–PEDROZA, Defendant–Appellant.

United States of America, Plaintiff–Appellee,

v.Vernancio Rojas–Pedroza, AKA Venancio Rojas–Pedroza, Defendant–Appellant.

Nos. 11–50379, 11–50381.

United States Court of Appeals,Ninth Circuit.

Argued and Submitted Dec. 3, 2012.

Filed May 28, 2013.

James Fife, Federal Defenders of San Diego, Inc., San Diego, CA, for Defendant–Appellant.

Laura E. Duffy, United States Attorney, Bruce R. Castetter, Assistant United States Attorney, Chief, Appellate Section, Criminal Division, and Kyle W. Hoffman (argued), Assistant United States Attorney, San Diego, CA, for Plaintiff–Appellee.

Appeal from the United States District Court for the Southern District of California, Dana M. Sabraw, District Judge, Presiding. D.C. Nos. 3:10–cr–03309–DMS–1, 3:08–cr–02715–DMS–1.

Before: MARSHA S. BERZON, RICHARD R. CLIFTON, and SANDRA S. IKUTA, Circuit Judges.

OPINION

IKUTA, Circuit Judge:

Venancio Rojas–Pedroza challenges his conviction and sentence under 8 U.S.C. § 1326(a) and (b) for being an alien found in the United States after removal. We hold that the district court was correct to reject Rojas's collateral challenge to the validity of the removal order underlying his § 1326(b) sentencing enhancement. We also reject Rojas's arguments that the district court violated his Sixth Amendment right to confrontation by admitting documents from his immigration file, and his claims that the district court erred procedurally and substantively in imposing a sentence.

I

We begin with an overview of Rojas's relevant immigration and criminal background before turning to the proceedings in this case.

A

Rojas entered the United States illegally in 1982, when he was fourteen. The record shows that since that time, he has lived intermittently in the United States, but never had legal status.¹ His parents and his two daughters live in Mexico, although several of his siblings reside in the United States.

When in the United States, Rojas was convicted of a number of criminal offenses. In October 1993, he was convicted of unlicensed driving, possession of an open container while driving, and the failure to pay a fine. In April 1994, he was charged with and later convicted of driving under the influence. In August 1995, he was convicted of unlicensed driving. In March 1997, he incurred a second conviction for driving under the influence. Finally, in September 2008, he was convicted of aiding and abetting the transportation of illegal aliens in violation of 8 U.S.C. § 1324(a)(1)(A)(ii) and (a)(1)(A)(v)(II), which is an aggravated felony for purposes of immigration law. 8 U.S.C. § 1101(a)(43)(N). As a result of that conviction he was sentenced to two years in prison and two years of supervised release.²

In addition to these criminal convictions, Rojas was removed or deported from the United States on five occasions (June 1997, February 1998, November 2004, May 2007, and April 2010). Rojas illegally returned to the United States after each of these removals or deportations.

During the hearing for the June 1997 removal, Rojas admitted to entering the United States illegally. After concluding that Rojas was removable, the IJ considered whether he was eligible for relief from removal, including voluntary departure. In response to the IJ's questions, Rojas and his attorney stated that Rojas did not have any convictions,³ that he had never been to jail, that his Special Agricultural Worker application had been denied, that he was unmarried, that he did not have any children, and that his family was in Mexico. The IJ ordered Rojas removed and denied his request for voluntary departure “based upon [Rojas's] lack of ties to the United States.”

Rojas reentered the United States illegally after the June 1997 removal and was detected in the country again in 1998. At the hearing for his February 1998 removal, Rojas correctly informed the IJ that he had been “kicked out” in June 1997, but he also erroneously stated that he had been granted voluntary departure instead of being removed. Based on Rojas's illegal re-entry, the IJ found him removable. The IJ then asked Rojas a series of questions to determine whether he was eligible for relief from removal. In response to these questions, Rojas stated that his parents were not United States citizens or legal residents, that he was not married, and that he did not have children who were United States citizens. The IJ ordered Rojas removed, and determined that Rojas was ineligible for voluntary departure because he had previously been granted voluntary departure, and then illegally returned.

Rojas again returned to the United States illegally. In October 2009, Rojas's 1998 removal order was reinstated and used as a basis for a subsequent removal in April 2010.

B

We now turn to the proceedings in this case. After his April 2010 removal, Rojas was again found in the United States illegally, and the government indicted him in August 2010 under 8 U.S.C. § 1326(a) and (b). ⁴ Relevant here, § 1326(a) provides criminal penalties for an alien who was: (1) deported or removed from the United States; and (2) thereafter “enters, attempts to enter, or is at any time found in, the United States” without the express consent of the Attorney General. Section 1326(b)(2) establishes enhanced penalties for an alien who was described in § 1326(a) and “whose removal was subsequent to a conviction for commission of an aggravated felony.” In other words, under § 1326(a) and (b)(2), an alien is guilty of illegal reentry and subject to enhanced penalties if the alien was: (1) convicted of an aggravated felony, (2) subsequently removed from the United States, and (3) thereafter illegally reentered or was found in the United States. See United States v. Covian–Sandoval, 462 F.3d 1090, 1097 (9th Cir.2006).

The indictment charged Rojas under § 1326(a) and (b), and alleged that Rojas was an alien who had been removed from the United States after December 12, 2008, and was subsequently found in the United States. These allegations supported both the government's § 1326(a) charge (which required proving that Rojas was removed from the United States and subsequently found in the United States) and its § 1326(b) charge (which, under § 1326(b)(2), required proving that Rojas's removal from the United States occurred after his conviction for an aggravated felony in September 2008).

Before trial, Rojas moved to dismiss the indictment on the ground that his April 2010 removal was invalid. Because the April 2010 removal was the only removal that occurred after his conviction for an aggravated felony in September 2008, it was necessary to support the sentencing enhancement under § 1326(b)(2).

After the district court denied this motion, Rojas filed a second pretrial motion to bar the admission of documents from the individual case file maintained by the Department of Homeland Security (referred to as an “alien file” or “A–File”) for the purpose of proving alienage. The documents at issue here are a “Warrant of Removal/Deportation,” a “Notice of Intent/Decision to Reinstate Prior Order,” and an “Order of the Immigration Judge.” The “Warrant of Removal/Deportation” states that Rojas, “who entered the United States at Otay Mesa, CA on December 6, 1991 is subject to removal/deportation from the United States, based upon a final order by: an immigration judge in exclusion, deportation, or removal proceedings.” The warrant is signed by an INS official. The back of the warrant contains information “[t]o be completed by [the] Service officer executing the warrant.” It lists the “port, date, and manner of removal,” includes a photo and a fingerprint with the captions “photograph of alien removed” and “right index fingerprint of alien removed,” respectively, and is signed by a different INS official.

The second document at issue, the “Notice of Intent/Decision to Reinstate Prior Order,” consists of two parts. The first part notified Rojas that he was “an alien subject to a prior order of deportation/ exclusion/ removal entered on February 23, 1998,” that he “was removed on May 21, 2007,” and that he illegally entered in 2007. It also contains Rojas's signature, indicating that he was not contesting this information. The second part of this document records the immigration officer's final decision that Rojas was subject to removal.

The third document at issue, the “Order of the Immigration Judge,” summarizes the IJ's oral decision from Rojas's 1998 proceedings. The written order contains checked-off boxes indicating that Rojas was “ordered removed from the United States to Mexico,” and that his “application for voluntary departure was denied.” The document also states that Rojas “waived” appeal.

The district court denied Rojas's motion to suppress these documents. Rojas proceeded to trial and the jury convicted him on all counts.

At sentencing, Rojas argued that he was entitled to a Sentencing Guidelines adjustment for acceptance of responsibility because he admitted he was a Mexican citizen when apprehended and later admitted to immigration agents that he had been previously deported or removed. The district court declined to make a downward adjustment for acceptance of responsibility, stating that “Rojas did not accept responsibility, he elected to stand on his constitutional rights, hold the government to its burden of proof to establish beyond a reasonable doubt all the elements in the allegation.” In particular, the district court noted that Rojas had challenged whether he had actually been removed, given that the government agent who effectuated the removal and witnessed Rojas cross the border had inadvertently failed to sign the “witness of departure line” in Rojas's warrant.

As a result of the § 1326 conviction, Rojas was sentenced to 51 months' imprisonment, followed by three years of supervised release. The district court also revoked Rojas's...