United States v. Sorto-Munoz
| Docket Number | 4:21-CR-40155-KES |
| Decision Date | 09 June 2023 |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. ALAN SAMUEL SORTO-MUNOZ, Defendant. |
| Court | U.S. District Court — District of South Dakota |
REPORT & RECOMMENDATION
Defendant a person believed to be Alan Samuel Sorto-Munoz, is before the court on an indictment charging him with illegally re-entering the United States after having previously been deported, in violation of 8 U.S.C. § 1326(a). See Docket No. 1. He filed a motion to dismiss opposed by the government, which the district court referred to this magistrate judge for the holding of an evidentiary hearing and the recommending of a disposition. See Docket Nos. 24, 34 & 37.
The government obtained an indictment against the defendant and he made his initial appearance before this court approximately one month later. Docket Nos. 1 & 7. Counsel was appointed for the defendant. Docket No. 9. No preliminary hearing or other evidentiary hearing on the merits of the charge against the defendant have been held. The case was initiated via indictment not complaint, so there is no affidavit accompanying the charging document giving any details about the defendant or his nationality.
The facts adduced at the evidentiary hearing in connection with defendant's motion to dismiss were voluminous and pertain to legislative history and intent. Rather than describing that testimony in detail in a separate section of this opinion, the court discusses the relevant testimony as it relates to the legal issues in the DISCUSSION section, below.
A. Equal Protection Under the Fifth Amendment
The Fourteenth Amendment, applicable to the states, provides in pertinent part that “[n]o State shall . . . deny to any person within its jurisdiction the equal protection of the laws.” The Fifth Amendment, applicable to the federal government, contains no Equal Protection clause.[1] Nevertheless, at least since Chief Justice Warren's opinion in Bolling v. Sharpe, 347 U.S 497, 499-500 (1954), a companion case to Brown v. Bd. of Educ., 347 U.S. 483 (1954), an Equal Protection guaranty has been implied in the Fifth Amendment arising out of that amendment's Due Process Clause. Washington v. Davis, 426 U.S. 229, 239 (1976). Equal Protection analysis is the same under both the Fifth and Fourteenth Amendments. Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 201 (1995); Weinberger v. Wiesenfeld, 420 U.S. 636, 638 n.2 (1975).
Because the Fifth Amendment provides protections for “person[s],” its protections extend to all persons present in the United States, even noncitizens.[2] Zadvydas v. Davis, 533 U.S. 678, 690 (2001) (). This is true even for noncitizens who are here unlawfully. Mathews v. Diaz, 426 U.S. 67, 77 (1976).
Laws that discriminate on the basis of race are subject to strict scrutiny. Adarand Constructors, Inc., 515 U.S. at 220. If a statute is facially neutral, it may still violate the Equal Protection Clause if it has a racially disparate impact and the government acted with a racially discriminatory purpose. Vill. of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 265-66 (1977). Here, the statute defendant challenges-8 U.S.C. § 1326-is facially neutral.[3] When a criminal defendant raises an Equal Protection challenge to a criminal statute, he must show that Congress acted with a “discriminatory purpose.” United States v. Clary, 34 F.3d 709, 712 (8th Cir. 1994) (). It is insufficient that there is a disparate impact on an identifiable racial group. Id. The defendant must show that Congress “selected or reaffirmed a particular course of action at least in part ‘because of' not merely ‘in spite of,' its adverse effects upon an identifiable group.” Id. (quoting Pers. Admin. of Mass. v. Feeney, 442 U.S. 256, 279 (1979)).
The district court directed this magistrate judge to apply the Arlington Heights test to Mr. Sorto-Munoz's motion. See Docket No. 37 at pp. 4 & 8. Under the Arlington Heights test, the court evaluates the following to discern whether Congress acted with discriminatory intent: (1) whether the “impact of the official action . . . ‘bears more heavily on one race than another' ”; (2) “the historical background of the decision, particularly if it reveals a series of official actions taken for invidious purposes”; (3) “the specific sequence of events leading up to the” enactment of the legislation; (4) whether the legislation was enacted pursuant to “departures from the normal procedural sequence” or whether there were substantive departures; and (5) the “legislative or administrative history” of the enactment. Arlington Heights, 429 U.S. at 26768. Furthermore, the Arlington Heights Court indicated that the above list was not exhaustive, indicating that additional factors may also be relevant. Id. at 268 ( that its summary did not purport to be exhaustive).
If the defendant succeeds in showing disparate impact and that a discriminatory intent was a “substantial” or “motivating” factor, “the burden shifts to the [government] to demonstrate that the law would have been enacted” even absent unlawful discrimination. Hunter v. Underwood, 471 U.S. 222, 228 (1985); Arlington Heights, 429 U.S. at 271 n.21 (citing Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977)).
The starting point of any challenge to a duly enacted Congressional statute is the presumed good faith of the legislature. Abbott v. Perez, ___U.S. ___, 138 S.Ct. 2305, 2324 (2018).
That presumed good faith is not changed by a showing of past discrimination. Id.
While not addressed by either party, to demonstrate an Equal Protection claim, the defendant must first “show that he himself is injured by the challenged” law. Arlington Heights, 429 U.S. at 261. That is, a defendant must first demonstrate that he is a member of a protected group: in this case, Mr. Sorto-Munoz must show he is a member of a racial group or a national origin group disadvantaged by § 1326(a). Feeney, 442 U.S. at 272 (citing Arlington Heights, 429 U.S. 252) (the Equal Protection Clause protects against race discrimination and an Equal Protection claim based on race can be premised on an ostensibly neutral law that has a disproportionately adverse effect on a racial minority); Washington v. Davis, 426 U.S. 229, 239 (1976) (). See also United States v. Calvillo-Diaz, No. 21 CR 445, 2022 WL 1607525, at *1 (N.D. Ill. 2022) (); United States v. Machic-Xiap, 552 F.Supp.3d 1055, 1060 (D. Ore. 2021) ().
Parties generally are denied standing to assert the rights of third persons. Arlington Heights, 429 U.S. at 263. Mr. Sorto-Munoz's motion to dismiss is premised on the disproportionate impact of § 1326(a) on persons who are Latinx.[4] Therefore, Mr. Sorto-Munoz must show that he is Latinx or that he is from Mexico, South America or Central America. He has introduced no evidence to this end. He has not admitted any element of the crime charged in the indictment. Furthermore, he did not submit to a pretrial interview in this case, so he has not confirmed his identity, race, or national origin. See Docket No. 5, p. 1.
It is true Mr. Sorto-Munoz is charged with being an alien under 8 U.S.C. § 1326(a), but the indictment does not specify Mr. Sorto-Munoz's race or nationality. See Docket No. 1. And, in any event, the indictment is not proof of anything, it is simply the government's (and the grand jury's) allegations. This case did not originate with the filing of a complaint, so there was no preliminary hearing at which the government would have had the opportunity to introduce evidence relating to Mr. Sorto-Munoz's nationality or race.
Mr. Sorto-Munoz has filed two briefs in support of his motion to dismiss. See Docket Nos. 24 & 38. In neither of those briefs does he allege his nationality or profess to be a member of the Latinx class. Id. In short, the record before the court is bereft of any evidence that the defendant belongs to the protected group against which defendant argues Congress discriminated when it enacted § 1326.
The court is unwilling to assume that Mr. Sorto-Munoz is a member of a racial minority or national origin group based on his name. There are any number of names that can be extremely misleading as to one's race or national origin. In addition, it is not even known if the defendant who is before the court is indeed Alan Samuel Sorto-Munoz. One of the elements the government must prove beyond a reasonable doubt at trial is the defendant's identity-i.e., that the defendant found in the United States and who is before the court is the same person who was previously deported. See 8 U.S.C. § 1326(a); United States v. Alvarez-Ulloa, 784 F.3d 558, 570-71 (9th Cir. 2015); United States v. DeLeon, 444 F.3d 41, 53-54 (1st Cir. 2006).
The court is not requiring the defendant to make an admission against his own interests in violation of the Fifth Amendment. But he is required to assert that he belongs to a protected racial or national origin classification. He could assert his race or national origin without admitting his identity or...
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