United States v. Gonzalez-Ferretiz

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. ISIDORO GONZALEZ-FERRETIZ,a/k/a Francisco Rodriguez-Vela, Defendant - Appellant.

No. 19-4409

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

Submitted: March 17, 2020

May 13, 2020

UNPUBLISHED

Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. Robert E. Payne, Senior District Judge. (3:18-cr-00117-REP-1)

Before KEENAN and RUSHING, Circuit Judges, and Thomas E. JOHNSTON, Chief United States District Judge for the Southern District of West Virginia, sitting by designation.

Affirmed by unpublished opinion. Judge Johnston wrote the opinion, in which Judge Keenan and Judge Rushing have joined.

Geremy C. Kamens, Federal Public Defender, Alexandria, Virginia, Joseph S. Camden, Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Richmond, Virginia for Appellant. G. Zachary Terwilliger, United States Attorney, Alexandria, Virginia, Heather Hart Mansfield, OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia for Appellee.

Unpublished opinions are not binding precedent in this circuit.

JOHNSTON, District Judge:

Isidoro Gonzalez-Ferretiz ("Gonzalez") was convicted of one count of illegal reentry by a removed alien. He now appeals his conviction and sentence on two grounds. First, Gonzalez argues that the district court erred in denying his motion to dismiss the indictment. Second, Gonzalez challenges the district court's application of the United States Sentencing Guidelines ("U.S.S.G.") with respect to a prior conviction. For the following reasons, we affirm.

I.

Gonzalez is a Mexican citizen. He illegally entered the United States sometime before July 22, 2008, when he was encountered in Pennsylvania by immigration authorities from the Department of Homeland Security ("DHS"). Gonzalez was offered a voluntary departure to Mexico, with which he complied. He again entered the United States illegally on some unknown date prior to an arrest in July 2012. On July 23, 2012, immigration authorities interviewed Gonzalez while in state custody, and he admitted that he had entered the United States unlawfully. No further action was taken to remove him at that time.

On June 2, 2014, Gonzalez pled guilty to theft from a motor vehicle, in violation of Pennsylvania law, 18 Pa. Code § 3934(A). Pursuant to Pennsylvania's indeterminate sentencing scheme, Gonzalez was sentenced to a minimum term of confinement of "time served 4/24/14-6/2/14" and a maximum of "23 mos." J.A. 148. Notably, the sentencing court also granted Gonzalez "immediate parole" as a "specific condition[]." Id.

The day after sentencing, the DHS initiated removal proceedings against Gonzalez by serving him with a Notice of Intent to Issue a Final Administrative Removal Order ("NOI"), also known as a Form I-851. The NOI stated that Gonzalez was removable due to his conviction of an aggravated felony as defined under 8 U.S.C. § 1101(a)(43)(G) of the Immigration and Nationality Act ("INA"). The NOI included an attachment listing Gonzalez's prior conviction for theft from a motor vehicle, in violation of Pa. Code § 18-3934(A), for which he was sentenced to a term of imprisonment of 23 months, as the basis for his removal. The NOI also contained a section explaining a charged alien's "Rights and Responsibilities," including the right to legal representation and the right to contest the charge. J.A. 149. The NOI was printed in English, and an immigration officer explained the form to Gonzalez in English. Gonzalez signed the NOI acknowledging service. In addition, he checked a box admitting the allegations in the charge and indicating that he did not contest his removal. He also checked a box waiving his right to remain in the United States for 14 days to apply for judicial review and signed below the assented waiver. A Final Administrative Removal Order issued on June 3, 2014, and Gonzalez was removed from the United States on June 19, 2014.

Sometime after his removal, Gonzalez again reentered the United States illegally and was discovered by immigration authorities. Pursuant to the 2014 removal order, he was deported to Mexico in March 2018. In September 2018, Gonzalez was again encountered by immigration authorities in Henrico County, Virginia. As a result, he was charged in a one-count indictment in the Eastern District of Virginia for illegal reentry, in violation of 8 U.S.C. § 1326(a).

Gonzalez filed a motion to dismiss the indictment, arguing that the underlying removal order was unlawful. The district court found after an evidentiary hearing that Gonzalez understood English at the time he completed the form and that he understood the waivers to which he assented. Gonzalez then entered a conditional guilty plea, preserving his right to appeal the motion to dismiss the indictment.

Prior to sentencing, the United States Probation Office prepared a presentence report ("PSR"). In the PSR, the probation officer determined that Gonzalez's base offense level under U.S.S.G. § 2L1.2(a) was eight. He then applied a six-level enhancement under U.S.S.G. § 2L1.2(b)(2)(C) based on Gonzalez's prior felony conviction, namely, the Pennsylvania theft from a motor vehicle conviction, for which the probation officer determined he had received a sentence exceeding one year and one month. After a two-level reduction for acceptance of responsibility, Gonzalez's offense level came to 12. His criminal history score was eight, which resulted in a criminal history category of IV. Based upon an offense level of 12 and a criminal history category of IV, Gonzalez's guidelines range was 21-24 months' imprisonment.

Gonzalez objected to the six-level enhancement and criminal history calculation, arguing that the probation officer incorrectly calculated the sentence of his prior theft offense in Pennsylvania. Specifically, Gonzalez argued that, although he was sentenced to time served to 23 months, he received immediate parole after serving five to six weeks, which constitutes a "suspended sentence" that should not be considered in calculating the guidelines range. The district court overruled the objection and, ultimately, imposed a sentence of 21 months' imprisonment. Gonzalez timely appealed.

II.

On appeal, Gonzalez contends that the district court erred in failing to grant his motion to dismiss the indictment based on a collateral attack of the underlying removal order. He also maintains that the district court committed procedural error in applying a six-level enhancement and calculating his criminal history score based on the imposed length of a prior sentence. We address each argument in turn.

A. Collateral Attack of Removal Order

On a motion to dismiss an indictment under 8 U.S.C. § 1326(d), we review a district court's factual findings for clear error and the court's legal conclusions de novo. See United States v. Hosford, 843 F.3d 161, 163 (4th Cir. 2016). In 1987, the Supreme Court recognized a due process right for an alien charged with unlawful reentry after removal under § 1326 to challenge the underlying removal order. See United States v. Mendoza-Lopez, 481 U.S. 828, 837-38 (1987) (explaining, "where a determination made in an administrative proceeding is to play a critical role in the subsequent imposition of a criminal sanction," due process requires "some meaningful review of the administrative proceeding.") (emphasis in original). Thus, the Supreme Court held that where a procedural defect in an immigration proceeding forecloses judicial review of a removal order, such proceeding may not be relied on to support a subsequent criminal conviction. See id. at 838; United States v. Guzman-Velasquez, 919 F.3d 841, 845 (4th Cir. 2019).

Thereafter, Congress codified this due process requirement in 8 U.S.C. § 1326(d), which provides a limited avenue to attack a prior removal order. See Moreno-Tapia, 848 F.3d 162, 165-66 (4th Cir. 2017). This section provides that an alien may challenge thevalidity of a removal order only if "(1) the alien exhausted any administrative remedies that may have been available to seek relief against the order; (2) the deportation proceedings at which the order was issued improperly deprived the alien of the opportunity for judicial review; and (3) the entry of the order was fundamentally unfair." 8 U.S.C. § 1326(d). As indicated by the statutory language, a defendant must "satisfy all three" requirements to successfully attack an underlying removal order. United States v. El Shami, 434 F.3d 659, 663 (4th Cir. 2005). However, an alien may be excused from meeting certain § 1326(d) requirements where the failure to do so "is itself the product of a procedural flaw in the immigration proceeding." Moreno-Tapia, 848 F.3d at 169; United States v. Lopez-Collazo, 824 F.3d 453, 459-62 (4th Cir. 2016) (excusing § 1326(d)(1) and (2)(2) requirements where language barrier prevented alien from understanding waivers contained in the I-851 form); El Shami, 434 F.3d at 662-64 (excusing § 1326(d) requirements and finding due process violation where alien did not receive notice of his immigration proceedings).

In Gonzalez's case, the district court ruled that he could not mount a collateral attack on his 2014 removal order. The district court reviewed the three-part standard of § 1326(d) and held that Gonzalez did not exhaust his administrative remedies and was not deprived of judicial review under requirements (1) and (2). We focus our discussion on the judicial review requirement under § 1326(d)(2).

1. Opportunity for Judicial Review

Gonzalez argues that his waivers on the I-851 form purportedly giving up any administrative or judicial review were not "considered and intelligent." Br. of Appellantat 10. Notably, Gonzalez does not rely on any assertion that he could not understand English or any other claim of limited capacity to make a knowing waiver. Cf. Mendoza-Lopez, 481 U.S. at 840 (holding that immigration proceedings deprived alien from seeking judicial...