United States v. Vargas-Varela
150 F. App'x 305
October 3, 2005 · Docket 04-51303
Headnotes
Generated summaries- Headnote 1
The Fifth Circuit applied the narrow exception to collateral attacks articulated in Mendoza‑Lopez and Lopez‑Ortiz, requiring the three‑part test to set aside a §1326 conviction.
- Headnote 2
The court explained that due‑process in removal proceedings requires the three basic procedural protections, and without them the hearing is fundamentally unfair.
- Headnote 3
The district court’s failure to follow the advisory‑guidelines framework led the appellate court to vacate the sentence and remand for resentencing.
- Headnote 4
The defendant objected to the probation officer’s recommendation to raise his criminal‑history points, arguing the increase was not supported by admitted facts, and the court’s rejection of that objection was deemed erroneous.
- Headnote 5
The appellate court vacated the 24‑month prison term and ordered remand after finding the district court’s sentencing practices incompatible with Booker.
- Headnote 6
The Fifth Circuit applies the narrow Mendoza‑Lopez/Lopez‑Ortiz exception. If the defendant cannot satisfy any element of the three‑part test, the illegal‑reentry conviction cannot be dismissed.
- Headnote 7
Congress incorporated the Supreme Court’s Mendoza‑Lopez framework into statute, making the elements a mandatory statutory prerequisite for setting aside a § 1326 conviction.
- Headnote 8
The court looks to due‑process requirements articulated in Lopez‑Ortiz and Calderon‑Pena to determine whether a removal hearing was fundamentally unfair.
- Headnote 9
The Fifth Circuit treats the collateral‑attack challenge as a question of law that it decides anew, without deferring to the immigration judge’s factual findings.
- Headnote 10
The district court’s failure to follow the advisory‑guidelines framework warrants vacatur of the sentence and remand for resentencing consistent with Booker and Mares.
- Headnote 11
The district court’s upward adjustment of the criminal‑history score, unsupported by the record, was overruled by the appellate court as a Sixth‑Amendment error.
- Headnote 12
The appellate court affirmed the illegal‑reentry conviction, vacated the 24‑month sentence, and instructed the district court to resentence in accordance with Booker and Fifth Circuit precedent.
- Headnote 13
The Fifth Circuit applied the Mendoza‑Lopez/Lopez‑Ortiz test, now codified at 8 U.S.C. § 1326(d). Failure to satisfy any element bars relief, so the conviction stands.
- Headnote 14
The court held that due‑process violations constitute fundamental unfairness, following Lopez‑Ortiz and Calderon‑Pena precedent.
- Headnote 15
The Fifth Circuit required that the defect strip the alien of a realistic right to challenge the order in court, as articulated in Lopez‑Ortiz.
- Headnote 16
The court demanded proof that the removal was unlawful and that the criminal case depended on that defect, consistent with Hernandez‑Avalos.
- Headnote 17
The district court’s failure to follow these advisory‑guidelines procedures led the Fifth Circuit to vacate the 24‑month sentence and remand for resentencing.
- Headnote 18
The appellant objected that the probation officer’s recommendation to raise his criminal‑history score was not supported by the record; the district court’s refusal to honor that objection was erroneous.
- Headnote 19
The Fifth Circuit vacated the 24‑month imprisonment and remanded the case for resentencing, citing Booker and Mares authority.
- Headnote 20
The Fifth Circuit applies a narrow three‑part test, derived from Mendoza‑Lopez and Lopez‑Ortiz, to decide whether a removal order can be used to defeat an illegal‑reentry prosecution.
- Headnote 21
Statutory enactment mirrors the Supreme Court and Fifth Circuit's narrow exception, making the test a statutory prerequisite for setting aside an illegal‑reentry conviction.
- Headnote 22
The court interpreted due‑process requirements as the benchmark for the first prong of the three‑part test, rejecting the appellant’s claim of procedural deficiency.
- Headnote 23
The district court’s 24‑month sentence was found to violate Booker’s advisory‑guidelines framework, prompting the appellate court to vacate the sentence and order resentencing.
- Headnote 24
The appellant objected to raising his criminal‑history points under U.S.S.G. § 4A1.1(e) because the underlying facts were not in the record; the court’s rejection of that objection conflicted with Blakely’s factual‑finding requirement.
- Headnote 25
The Fifth Circuit applied the narrow exception recognized in Mendoza‑Lopez, requiring the three‑part test before a § 1326 conviction can be set aside on the basis of an earlier removal order.
- Headnote 26
The court defined fundamental unfairness by referencing the procedural safeguards required by due‑process in removal cases.
- Headnote 27
The court treated this requirement as the second prong of the three‑part test for collateral attacks of removal orders.
- Headnote 28
This third element completes the statutory test for overturning a conviction based on a prior removal order.
- Headnote 29
Congress incorporated the Supreme Court’s and Fifth Circuit’s narrow exception into statutory language.
- Headnote 30
The district court’s sentence was found to violate Booker because it did not follow the advisory‑guidelines framework.
- Headnote 31
The appellate court vacated the 24‑month sentence and ordered remand because the district court did not apply Booker correctly.
- Headnote 32
Because the appellant did not demonstrate fundamental unfairness, his motion to dismiss was denied and the conviction affirmed.
Opinion
Prajedis Vargas-Varela (“Appellant”) contests his federal conviction and sentence for illegal reentry into the United States after removal. We find no merit in his substantive challenge to the conviction. However, Appellant’s claim that the district court sentenced him in violation of United States v. Booker, — U.S. -, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), is valid. Thus, we vacate the sentence and remand.
I. Background
Appellant was born in Mexico and became a lawful permanent resident of the U.S. in 1990. In 1998, he was convicted in Texas of felony DWI (driving while intoxicated). Due to this conviction, an immigration judge ordered Appellant removed from the U.S. as an aggravated felon. The Board of Immigration Appeals subsequently dismissed an appeal of this decision and Appellant was removed from the country. In 2003, Appellant was found in the U.S., the removal order was reinstated, and he was again removed.
In 2004, Appellant was arrested in Texas and charged with illegal reentry after removal pursuant to 8 U.S.C. § 1826. He moved for dismissal, arguing, inter alia, that his prior removal had been fundamentally unfair because it was based on an erroneous interpretation of law. The district court denied Appellant’s motion. Appellant waived his right to a jury trial and the district court subsequently found him guilty on stipulated facts. The probation officer recommended in the PSR (presentence report) that Appellant’s criminal history score be raised from eight points to ten, pursuant to U.S.S.G. § 4Al.l(e), because Appellant committed the reentry offense within two years of being released from custody. Appellant objected, arguing that this was not based on facts admitted by him or alleged in the indictment, and thus violated the rule of Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004).
The district court overruled the objection. It determined that Appellant had an offense level of ten, a criminal history of Y, and a guideline sentence range of 21 to 27 months. The court sentenced him to 24 months in prison.
II.II. Discussion
Appellant’s initial argument is that the district court erred by not granting his motion to dismiss due to the invalidity of his prior removal. Assuming arguendo that Appellant has correctly identified substantive legal error in the immigration judge’s order removing him from the U.S. because of the DWI conviction, it is clear that Appellant has failed to meet the rather stringent standard we apply for granting relief in such a case.
In United States v. Mendoza-Lopez, 481 U.S. 828, 107 S.Ct. 2148, 95 L.Ed.2d 772 (1987), the Supreme Court held that a defendant prosecuted under § 1326 could, under very limited circumstances, collaterally attack the underlying deportation or removal order. We subsequently delineated this narrow exception to the general proscription of collateral challenges as follows: “[A]n alien challenging a prior removal [must] establish that (1) the removal hearing was fundamentally unfair; (2) the hearing effectively eliminated the right of the alien to challenge the hearing by means of judicial review of the order; and (3) the procedural deficiencies caused the alien actual prejudice.” United States v. Lopez-Ortiz, 313 F.3d 225, 229 (5th Cir. 2002); accord United States v. Hernandez-Avalos, 251 F.3d 505, 507 (5th Cir. 2001). This formulation was subsequently codified in 8 U.S.C. § 1326(d). The United States argues that Appellant cannot establish that the underlying proceeding was “fundamentally unfair.” We agree.
We review de novo Appellant’s claim regarding the underlying removal order. See United States v. Estrada-Trochez, 66 F.3d 733, 735 (5th Cir.1995). A proceeding is fundamentally unfair when it violates the defendant’s procedural due process rights. See Lopez-Ortiz, 313 F.3d at 230; see also United States v. Calderon-Pena, 339 F.3d 320, 324 (5th Cir.2003). “The Supreme Court has stated that due process requires that an alien who faces deportation be provided (1) notice of the charges against him, (2) a hearing before an executive or administrative tribunal, and (3) a fair opportunity to be heard.” Lopez-Ortiz, 313 F.3d at 230. Appellant does not claim that his removal proceeding lacked such procedural processes. Thus, we affirm Appellant’s conviction.
Appellant argues that he was sentenced in violation of United States v. Booker, — U.S. -, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). The United States agrees, concedes that Appellant preserved the error, and recognizes that remand and resentenc ing in accordance with Booker and United States v. Mares, 402 F.3d 511 (5th Cir. 2005), is appropriate. In light of this concession, we remand for resentencing.
III. Conclusion
Accordingly, we AFFIRM Appellant’s conviction, VACATE his sentence and REMAND to the district court for resentencing.
Pursuant to 5th Cir. R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.