United States v. Lim

897 F.3d 673

UNITED STATES of America, Plaintiff–Appellee,

v.Chhay LIM, Defendant–Appellant.

No. 17-30469

United States Court of Appeals, Fifth Circuit.

FILED July 31, 2018

Spiro G. Latsis, Assistant U.S. Attorney, Kevin G. Boitmann, Assistant U.S. Attorney, Diane Hollenshead Copes, Esq., Assistant U.S. Attorney, Jeffrey Ryan McLaren, Assistant U.S. Attorney, U.S. Attorney's Office, Eastern District of Louisiana, New Orleans, LA, for Plaintiff–Appellee.

Sara A. Johnson, Timothy Allison Meche, Attorney, New Orleans, LA, for Defendant–Appellant.

Before SMITH, WIENER, and WILLETT, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Chhay Lim conditionally pleaded guilty of possession of a firearm by an illegal alien. He appeals pre-plea rulings denying his motions to dismiss the indictment, to admit evidence relevant to his immigration status, and to suppress evidence. We affirm the refusal to dismiss the indictment and admit the evidence. We affirm in part and reverse in part the denial of the motion to suppress. The judgment of conviction is vacated and remanded.

I.

In 1997, Lim, while a lawful permanent resident ("LPR"), was ordered removed from the United States after serving three years in prison for rape. The removal order became final in December 1998, when the Board of Immigration Appeals ("BIA") dismissed Lim’s appeal. A warrant of removal was issued in February 1999, and Lim’s immigration bond was formally deemed breached in June 1999.

On March 2, 2015, Immigration and Customs Enforcement ("ICE") officers executed the removal warrant and seized two firearms from Lim’s house.¹ Lim had acquired the firearms after his removal order had become final. On March 27, 2015, Lim was indicted on two counts of possession of a firearm by an illegal alien under 18 U.S.C. § 922(g)(5).

In April 2015, Lim moved to reopen his removal proceedings to allow him to seek relief from removal under former section 212(c) of the Immigration and Nationality Act, 8 U.S.C. § 1182(c). The BIA granted the motion in May 2015. Those proceedings remain pending.

In his section 922 criminal proceedings, Lim moved to suppress the statements and evidence seized from his house. After a hearing, the district court denied the motion. Lim also moved to dismiss the indictment, asserting that, in light of the reopening of his removal proceedings, he was not an illegal alien at the time of the offense or indictment. The government opposed the motion, responding that on the date Lim possessed the firearms, he was an illegal alien subject to a final order of removal, and the reopening of the immigration proceedings did not retroactively restore him to LPR status for purposes of section 922. The district court denied the motion to dismiss.

Before trial, the parties filed several motions addressing the admissibility of evidence regarding Lim’s immigration status. Because the district court was not convinced that the BIA’s reopening of Lim’s immigration proceedings had retroactive effect, it determined that "any evidence of curative efforts made by [Lim], subsequent to his March 2, 2015 arrest, relative to the legality of his alien status, lack[ed] relevance and ... [was] inadmissible." Specifically, Lim would not be allowed to " ‘elicit factual testimony from his immigration attorney regarding the motion[s] that the attorney previously filed on [his] behalf ..., the procedure involved, and the result achieved.’ " Thus, the court also sustained the government’s relevance objections as to Lim’s boat registrations and commercial fishing licenses, though the relevance objections as to Lim’s government-issued identification cards and tax returns were referred to trial "for reconsideration in the event that [he chose] to testify."

In light of the legal and evidentiary rulings, Lim executed a written plea agreement and pleaded guilty to the two-count indictment. The district court sentenced him, within the advisory guidelines range, to concurrent terms of ten months of imprisonment and one year of supervised release. Lim remains on bond pending appeal.

II.

The government contends that Lim possibly did not preserve his right to appeal all pretrial decisions. A guilty plea generally "waives [the] right to challenge any nonjurisdictional defects in the criminal proceedings that occurred before the plea."² A defendant can, however, "enter into a conditional guilty plea preserving the right to appeal pretrial rulings."³ Because "[a] conditional guilty plea may not be implied," it must usually "be in writing and designate the particular issues that are preserved for appeal; the government must consent to it; and the district court must approve it."⁴ We can "excuse[ ] variances from these technical requirements where ‘the record clearly indicates that the defendant intended to enter a conditional guilty plea, that the defendant expressed the intention to appeal a particular pretrial ruling, and that neither the government nor the district court opposed such a plea.’ "⁵

The written plea agreement does not indicate that the plea was conditional. It also does not mention waiver of appellate rights. The record at rearraignment, however, plainly indicates that Lim’s plea was in fact conditional. First, the court summarized the rights Lim waived by pleading guilty—the rights to a speedy and public trial by twelve jurors, to be presumed innocent until proven guilty beyond a reasonable doubt, to confront witnesses, to call witnesses, to testify, and to present evidence.

Then, on confirming that Lim understood the rights he would be waiving, the court switched to discussing the rights he would be preserving:

THE COURT: Now, Mr. Lim, typically upon entering a guilty plea, a defendant waives the rights that he otherwise would have to appeal his conviction. In this instance, however, it is my understanding that you and the government have agreed that you will not waive any right to appeal your conviction or your sentence, and that you will also not waive any other post-conviction remedies that may be available to you.

THE DEFENDANT: Yes.

THE COURT: Mr. Lim, is that a correct understanding? Is that your understanding as well?

THE DEFENDANT: Yes.

THE COURT: All right. And [AUSA] Latsis, is that a correct statement?

[AUSA] LATSIS: Yes, Your Honor, that is correct. We have stripped out all of the appeal waiver language so he is reserving all of his appellate rights.

THE COURT: Okay. [Defense counsel] Meche, that an accurate statement?

[DEFENSE COUNSEL] MECHE: Yes.

After finishing the discussion of appellate rights, the court defined, for Lim, each element of the offense. During the explanation, Lim’s attorney began to interrupt, and the court immediately responded, "Mr. Meche, this is the part, I believe, that creates the issue you would like to have reviewed by the circuit; is that correct?" Meche responded, "That’s correct." After extended discussion, the court reemphasized that Lim "reserv[ed his] right to argue an appeal arising out of [the] statement" that "relates to a defendant who knows that he is an alien and that an immigration judge previously ordered him deported."

Later, the court attempted to summarize the factual issues. It explained that its "understanding, based on all the motion practice and what we have covered today, is that ... [t]he second fact [concerning Lim’s knowledge of his illegal status] is contested ... and [t]hat is the issue that [he] understand[s] [Lim] would like to have reviewed on appeal." Lim’s attorney agreed with that summary.

The government then summarized the terms of the plea agreement and again noted that the parties had "stripped out the appellate waiver so Mr. Lim [was] preserving all of his appellate rights." Finally, after accepting Lim’s plea, the court allowed Lim’s counsel to proffer his objections to the draft jury instructions on the immigration-status issues.

The government correctly concedes that Lim preserved his right to appeal the denial of his motions to dismiss the indictment and present evidence concerning his immigration status.⁶ The government weakly contends, however, that Lim did not do enough to preserve his right to appeal the denial of his motion to suppress. Though the government acknowledges that it stated on the record that it "stripped out all of the appeal waiver language so [Lim] is reserving all of his appellate rights," it claims that such a statement does not meet the particularity requirement.⁷

Lim properly preserved his right to appeal the denial of his motion to suppress. The discussion at the beginning of the rearraignment listed the rights that Lim agreed to waive, none of which included appellate rights. The court then moved on to determining whether everyone agreed that Lim was entering a conditional plea to preserve all appellate rights. During that discussion, everyone—Lim, his attorney, the AUSA, and the district court—agreed that he had preserved all appellate rights.

III.

Lim claims the indictment must be dismissed because the BIA’s order reopening his immigration proceedings returned him to LPR status and was retroactive, such that he was not an illegal alien at the time of the alleged offense. A denial of a motion to dismiss an indictment and issues of statutory interpretation are reviewed de novo . United States v. Arrieta , 862 F.3d 512, 514 (5th Cir. 2017).

Lim’s claim rests on Bonilla v. Lynch , 840 F.3d 575 (9th Cir. 2016). There the defendant illegally reentered the United States after deportation. The BIA denied his motion to reopen because he "had lost his [LPR] status when he was deported and, even if reopening were granted, would not thereby regain it pending a new removal determination." Id. at 589. The BIA thus "believed he could never have sufficient lawful presence to become eligible for § 212(c) relief." Id. The Ninth Circuit reversed, explaining that "if the BIA grants a motion to reopen ... the final deportation order is vacated—that is, it is as if it never occurred." Id. "[L]awful permanent resident...