USA. v. Aceves

• Decision Date: 06 July 1999
• Docket Number: LARA-ACEVE,D,No. 98-50522,98-50522
• Citation: 183 F.3d 1007
• Parties: (9th Cir. 1999) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. GUILLERMOefendant-Appellant
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1007

183 F.3d 1007 (9th Cir. 1999)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. GUILLERMO LARA-ACEVES, Defendant-Appellant.

No. 98-50522

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted May 4, 1999.

Decided July 6, 1999

Benjamin L. Coleman, Federal Public Defender of San Diego, San Diego, California, for the defendant-appellant.

Maura F. Quinn, Assistant United States Attorney, San Diego, California, for the plaintiff-appellee.

Appeal from the United States District Court for the Southern District of California

Marilyn L. Huff, District Judge, Presiding. D.C. No. Cr-98-00646-MLH.

Before: Melvin Brunetti and Kim McLane Wardlaw, Circuit Judges, and John W. Sedwick,^* District Judge.

WARDLAW, Circuit Judge:

Guillermo Lara-Aceves ("Lara") appeals his judgment of conviction and sentence received after entering a guilty plea to violating 8 U.S.C. S 1326, for being a deported alien found in the United States subsequent to conviction of an aggravated felony. We have jurisdiction pursuant to 28 U.S.C.S 1291, and we affirm.

In so doing, we reaffirm United States v. Robles-Sandoval, 637 F.2d 692 (9th Cir. 1981), which held that the use of a prior deportation proceeding as an element of the criminal offense of reentry under 8 U.S.C. S 1326 does not violate the Fifth Amendment to the United States Constitution, and further hold that in the absence of a basis for collateral attack of the proceedings under United States v. Mendoza-Lopez, 481 U.S. 828 (1987), such use does not violate the Sixth Amendment. We also conclude that, pursuant to this Court's recent decision in United States v. Estrada-Torres, 179 F.3d 776 (9th Cir.1999), Lara's 1987 conviction under California Health and Safety CodeS 11360(a) for selling/furnishing a controlled substance constitutes an "aggravated felony" within the meaning of U.S.S.G. S 2L1.2(b)(1)(A). Finally, we reject Lara's contention that the Sentencing Guidelines are unconstitutionally inconsistent because they require inclusion of Lara's prior state conviction in the calculation of the adjusted offense level but exclusion from the criminal history calculation.

I.

We review Lara's constitutional challenge to 8 U.S.C. S 1326 de novo. See Confederated Tribes of Siletz Indians v. United States, 110 F.3d 688, 693 (9th Cir.), cert. denied, 118 S. Ct. 625 (1997). We also consider de novo whether the aggravated felony provision is applicable. See Estrada Torres, 179 F.3d at 781 (citing United States v. Fuentes-Barahona, 111 F.3d 651, 652 (9th Cir. 1997)). The constitutionality of the Sentencing Guidelines is a question of law reviewed de novo. See United States v. Johnson, 130 F.3d 1352, 1354 (9th Cir. 1997).

II.

Lara is a citizen and national of Mexico. In 1987, he pled guilty to selling marijuana in violation of California Health and Safety Code S 11360(a). Following his conviction, Lara was deported on five occasions.¹ On January 16, 1998, a Border Patrol agent observed Lara running northbound on Interstate 5, one mile north of the San Ysidro, California, Port of Entry. The agent apprehended Lara, at which time Lara admitted that he was a citizen and national of Mexico. A computerized records check revealed that Lara had a prior immigration and criminal history.

On March 4, 1998, a grand jury charged Lara with being an alien found in the United States after deportation following conviction of an aggravated felony, in violation of 8 U.S.C. SS 1326(a) and (b)(2). Lara moved to dismiss the indictment, arguing that the use of an administrative deportation order as an element of a S 1326 offense violates due process. The district court rejected Lara's due process argument and denied the motion to dismiss. It granted Lara's motion to strike the aggravated felony allegations in the indictment, pursuant to Almendarez-Torres v. United States, 118 S. Ct. 1219 (1998) (holding that S 1326(b)(2) constitutes a sentencing factor and not a separate offense). On May 26, 1998, Lara entered a conditional guilty plea on the S 1326(a) charge, preserving various issues for appeal.

In its presentence report, the United States Probation Office recommended a sixteen level increase over Lara's base offense level of eight, pursuant to United States Sentencing Guideline ("U.S.S.G.") S 2L1.2(b)(1)(A), after determining that Lara's conviction for violation of California Health and Safety Code S 11360(a) was an aggravated felony. Because Lara's state conviction was more than ten years old, however, it was not counted in the criminal history calculation, pursuant to U.S.S.G. S 4A1.2(e)(3).

At his sentencing hearing on August 17, 1998, Lara contended that he did not qualify for a sixteen-level enhancement under U.S.S.G. S 2L1.2(b)(1)(A) because his prior conviction was too remote in time to be counted in his criminal history category calculation. Lara further argued that, even if his prior conviction was properly considered in the offense level determination, it was not an aggravated felony, and therefore the base offense level was properly increased by only four levels. The district court rejected Lara's legal arguments, but departed downward six levels based on the "totality of the circumstances." Lara was sentenced to twenty-four months in custody. This appeal followed.

III.

Lara contends that 8 U.S.C. S 1326 violates due process because it uses the outcome of an administrative adjudication -an order of deportation -as an element of the offense. He contends that without his allegedly unreliable deportation orders, he was subject only to prosecution for a misdemeanor violation of 8 U.S.C. S 1325, improper entry by an alien, rather than for the felony with which he was charged. This argument is without merit.

In United States v. Alvarado-Delgado, we held that lawfulness of the predicate deportation is not an element of the S 1326 offense and therefore a defendant is not entitled to have that issue determined by a jury. 98 F.3d 492, 493 (9th Cir. 1996) (en banc), cert. denied, 519 U.S. 1155 (1997). Nonetheless, under Mendoza-Lopez, a defendant in a S 1326 prosecution may challenge the government's proof of a prior deportation if the deportation proceeding was so procedurally flawed that it "effectively eliminate[d] the right of the alien to obtain judicial review." 481 U.S. at 839. To bring a successful collateral attack, however, the defendant must demonstrate prejudice as a result of the alleged error in the deportation proceeding. See United States v. Proa-Tovar, 975 F.2d 592, 595 (9th Cir. 1992) (en banc).

Lara concedes he has no basis upon which to collaterally attack the validity of his underlying deportation. He relies solely on the argument that S 1326 runs afoul of the due process protections of the Fifth and Sixth Amendments because it utilizes an administrative adjudication as an element of the criminal offense. Specifically, Lara maintains that the absence of a right to counsel, the relaxed use of the rules of evidence, and the lesser burden of proof (clear and convincing evidence) in deportation proceedings render their later use as an element of a criminal prosecution a due process violation.

It is axiomatic that civil and criminal proceedings differ substantially. Therefore, "the full panoply of . . . procedural and substantive safeguards which are provided in a criminal proceeding are not required at a deportation hearing." United States v. Solano-Godines, 120 F.3d 957, 960-61 (9th Cir. 1997), cert. denied, 118 S. Ct. 722 (1998). Given the civil nature of deportation proceedings, it is well established that aliens in such proceedings have no constitutional right to counsel under the Sixth Amendment. See MagallanesDamian v. INS, 783 F.2d 931, 933 (9th Cir. 1986).

Nonetheless, aliens in deportation proceedings are to be "accorded due process." Espinoza v. INS , 45 F.3d 308, 310 (9th Cir. 1995). We previously have concluded that the use of a deportation proceeding as an element of a S 1326 prosecution comports with the strictures of due process under the Fifth Amendment to the United States Constitution. In Robles-Sandoval, we found that a deportation order which the defendant conceded was proper "validly created the status of deportee for appellant and did so with all the procedural safeguards due him." 637 F.2d at 693.²

Well before Robles-Sandoval, the Supreme Court upheld the use of an administrative determination as the basis of a criminal proceeding in Yakus v. United States , 321 U.S. 414 (1944). In Yakus, the Court considered the constitutionality of the Emergency Price Control Act of 1942, which created the Office of Price Administration and gave the Price Administrator authority to promulgate regulations imposing price controls on certain items. Id. at 419-20. Under the Act, any person affected by such a regulation could file an administrative protest and, if dissatisfied with the administrative ruling, could appeal to an Emergency Court of Appeals. The protestor could also petition for review in the Supreme Court. See id. at 428-29. The Act provided that this means of review was exclusive -no other court could review a regulation's validity. See id. at 429.

The criminal defendants in Yakus were charged with violating a price regulation. Failing to use the review procedures delineated in the Act, the defendants attempted to attack the validity of the price regulation at their criminal trial. See id. at 431. The Court held the defendants did not have a due process right to raise such a challenge at trial, reasoning that persons affected by the regulation were required to attack it using the procedures created by the Act and that "the authorized procedure is not incapable of affording the protection to petitioners' rights required by due process." Id. at 435. The Court noted that due process safeguards existed in the defendants' right to attack the validity of the regulation before the administrative body and, if still dissatisfied, to appeal...