United States v. Portillo-Gonzalez

80 F.4th 910

UNITED STATES of America, Plaintiff-Appellee, v. Praxedis Saul PORTILLO-GONZALEZ, aka Alex Ganes-Diarte,aka Jose Omar Reyes-Hernan, Defendant-Appellant.

No. 21-10260

United States Court of Appeals, Ninth Circuit

Argued and Submitted November 17, 2022 Phoenix, Arizona

Filed August 31, 2023

Appeal from the United States District Court for the District of Arizona Diane J. Humetewa, District Judge, Presiding, D.C. No. 2:19-cr-01331-DJH-1

Daniel L. Kaplan (argued), Assistant Federal Public Defender; Jon M. Sands, Federal Public Defender; Federal Public Defender's Office, Phoenix, Arizona; for Defendant-Appellant.

Timothy H. Courchaine (argued) and Ryan J. McCarthy, Assistant United States Attorneys; Krissa M. Lanham, Appellate Division Chief; Gary M. Restaino, United States Attorney; United States Attorney's Office, Phoenix, Arizona; for Plaintiff-Appellee.

Before: Jay S. Bybee, John B. Owens, and Daniel P. Collins, Circuit Judges.

OPINION

COLLINS, Circuit Judge:

Defendant-Appellant Praxedis Saul Portillo-Gonzalez appeals from his conviction after a conditional plea of guilty to a single count of unlawful reentry by a previously removed alien in violation of 8 U.S.C. § 1326. Portillo-Gonzalez contends that his indictment should have been dismissed on the ground that the 2000 removal order underlying his prior removals was invalid due to an error by the immigration judge ("IJ"), at his removal hearing, as to whether he was eligible for voluntary departure. Portillo-Gonzalez argues that, under controlling Ninth Circuit precedent, the IJ's error sufficed to establish that he satisfied all of the statutory requirements for collaterally challenging a removal order in the context of a § 1326 prosecution. See 8 U.S.C. § 1326(d) (listing these requirements). Thus, while he acknowledges that the Supreme Court's decision in United States v. Palomar-Santiago, — U.S. —, 141 S. Ct. 1615, 209 L.Ed.2d 703 (2021), abrogated Ninth Circuit caselaw holding that such IJ errors may excuse an alien from satisfying certain of § 1326(d)'s requirements, he insists that it left undisturbed our related caselaw holding that such errors may serve to automatically establish that those requirements have been met. Because we conclude that, in the respects relevant here, Palomar-Santiago abrogated that caselaw as well, we reject Portillo-Gonzalez's contentions and affirm the district court's decision and judgment.

I

A

Portillo-Gonzalez illegally entered in the United States in June 2000 near Sasabe, Arizona. On December 14, 2000, Portillo-Gonzalez was convicted in Arizona state court of one count of possession of drug paraphernalia and was sentenced to three years' probation. The next day, Portillo-Gonzalez was released from state custody into the custody of federal immigration authorities, and he was served with a "Notice to Appear" alleging that he was removable under § 212(a)(6)(A)(i) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1182(a)(6)(A)(i), as an alien present in the United States without being admitted or paroled. On December 21, 2000, Portillo-Gonzalez appeared before an IJ, conceded that he was removable as charged, and was ordered removed to Mexico. Portillo-Gonzalez confirmed to the IJ that he did not want to appeal to the Board of Immigration Appeals ("BIA"), and he was removed that same day.

Portillo-Gonzalez subsequently re-entered the United States illegally multiple times, resulting in six additional removals in 2002, 2003, 2008, 2010, 2012, and 2017. During his time in the United States, Portillo-Gonzalez amassed a variety of additional criminal convictions, including six convictions in state court, from 2002-2019, for driving while impaired or under the influence; a state court conviction in 2010 for possession of drug paraphernalia; and two federal convictions in the District of Arizona in 2012 and 2016 for unlawful reentry by a previously removed alien in violation of 8 U.S.C. § 1326.

While Portillo-Gonzalez was still on supervised release from his 2015 federal conviction, he again unlawfully re-entered the United States on or about December 6, 2018. Based on this unlawful reentry, the U.S. Probation Office in February 2019 filed a petition to revoke Portillo-Gonzalez's supervised release. Thereafter, in November 2019, Portillo-Gonzalez was indicted for a third violation of § 1326. Specifically, the indictment alleged that Portillo-Gonzalez was previously removed on February 27, 2017 and that he was thereafter found in the United States in June 2019 without having obtained the express consent of immigration authorities to reapply for admission.

B

Portillo-Gonzalez moved to dismiss the indictment on the ground that the removal order underlying his unlawful reentry charge under § 1326 was invalid. Section 1326(d) expressly authorizes such a collateral challenge pursuant to a 1996 statutory amendment enacted in response to the Supreme Court's decision in United States v. Mendoza-Lopez, 481 U.S. 828, 107 S.Ct. 2148, 95 L.Ed.2d 772 (1987). In Mendoza-Lopez, the Court held that the then-existing version of § 1326 violated due process to the extent that it did not allow a collateral challenge to an underlying removal order that was issued during procedurally defective removal proceedings that "effectively eliminate[d] the right of the alien to obtain judicial review." Id. at 839, 107 S.Ct. 2148; see also id. at 839 n.17, 107 S.Ct. 2148. That constitutional defect was addressed in the following new subsection (d):

In a criminal proceeding under this section, an alien may not challenge the validity of the deportation order described in subsection (a)(1) or subsection (b) unless the alien demonstrates that—

(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).¹

Here, the predicate 2017 removal alleged in Portillo-Gonzalez's indictment rested on the reinstatement of his 2000 removal order. Portillo-Gonzalez argued that the 2000 order was "fundamentally unfair" within the meaning of § 1326(d)(3) because it was issued at a hearing during which the IJ had misinformed him concerning his potential eligibility for voluntary departure in lieu of removal. Specifically, the IJ told Portillo-Gonzalez at his 2000 removal hearing in Tucson that he could not be considered for voluntary departure unless he was then in possession of $5 to cover the cost of travel to Nogales, where he would be escorted to the border. After Portillo-Gonzalez told the IJ that he did not have $5 with him, the IJ ordered him to be removed to Mexico. In his motion to dismiss the indictment, Portillo-Gonzalez asserted that there was no such limitation on his ability to be considered for voluntary departure because the BIA had held in 1999 that an alien seeking voluntary departure before completion of removal proceedings "need not show that . . . he has the financial means to depart the United States." In re Arguelles-Campos, 22 I. & N. Dec. 811, 817 (B.I.A. 1999).² Portillo-Gonzalez further argued that the IJ's error was prejudicial because, had the IJ informed him that he "could ask for time to obtain the funds" to voluntarily depart, there was an adequate evidentiary basis to conclude that he would have been eligible for voluntary departure.

As to the additional requirements of § 1326(d)(1) and (d)(2) relating to exhaustion of remedies and deprivation of judicial review, Portillo-Gonzalez argued that, because he had been prejudiced by the IJ's "improper advisal," he was "excused" under Ninth Circuit precedent from having to satisfy those two requirements.

While Portillo-Gonzalez's motion was pending, the Supreme Court issued its decision in United States v. Palomar-Santiago, — U.S. —, 141 S. Ct. 1615, 209 L.Ed.2d 703 (2021). There, the Court held that "each of the statutory requirements of § 1326(d) is mandatory," and it expressly rejected our precedent holding that, in certain circumstances, "defendants are 'excused from proving the first two requirements' of § 1326(d)." Id. at 1620, 1622 (citation omitted). After receiving supplemental briefing concerning the import of Palomar-Santiago, the district court denied the motion, concluding that none of the three requirements of § 1326(d) were satisfied.

C

After the district court denied Portillo-Gonzalez's motion to dismiss the indictment, Portillo-Gonzalez entered into a plea agreement with the Government that would resolve both his pending criminal case as well as the revocation of his supervised release from his 2015 conviction under § 1326. To assist in accomplishing that, the Government obtained a superseding indictment that (1) changed the predicate prior removal in Portillo-Gonzalez's current case from his 2017 removal to the 2012 removal that had been the predicate of his 2015 conviction; and (2) pushed back the date on which Portillo-Gonzalez was allegedly found in the United States from June 2019 to December 2018. Under the plea agreement, Portillo-Gonzalez expressly preserved his ability to appeal the denial of his motion to dismiss the original indictment.³ See FED. R. CRIM. P. 11(a)(2).

With respect to Portillo-Gonzalez's conviction under § 1326, the district court on August 31, 2021 sentenced him to 42 months in prison, to run concurrently with his latest state conviction. That sentence was well below the Guidelines range of 63-78 months and the plea agreement's binding sentencing cap of 78 months. See FED. R. CRIM. P. 11(c)(1)(C). Portillo-Gonzalez was ordered to serve three years of supervised release after completing his prison term. His prior supervised release from his 2015 conviction was terminated, and the pending revocation proceedings from that case were dismissed.

Portillo-Gonzalez timely appealed, and we have...