FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW
MEXICO. (D.C. No. 2:13-CR-03760-MCA-1).
M. Acton, Albuquerque, New Mexico, for Defendant-Appellant.
J. Pflugrath, Assistant United States Attorney (Damon P.
Martinez, United States Attorney, with him on the brief),
Albuquerque, New Mexico, for Plaintiff-Appellee.
KELLY, BRISCOE and HARTZ, Circuit Judges. HARTZ, Circuit
Marceleno pleaded guilty to one count of reentry of a removed
alien, in violation of 8 U.S.C. § 1326(a) and (b). In
this direct appeal, Marceleno claims the district court erred
by denying his request to withdraw his guilty plea pursuant
to Federal Rule of Criminal Procedure 11(d)(2)(B). Exercising
jurisdiction under 28 U.S.C. § 1291, we affirm.
was born in Mexico and is not a United States citizen. After
more than thirty years in the United States, he was deported
to Mexico in 2013, only to reenter the United States shortly
thereafter. As to the events that led to his reentry,
Marceleno testified to the following facts at an evidentiary
hearing on his motion to withdraw his guilty plea. When he
arrived in Mexico following his deportation, he set out to
complete the community service remaining as part of his
supervised release for an unrelated prior misdemeanor
offense. His probation officer confirmed that Marceleno
indeed contacted her to arrange continued supervision in
order to complete this service. While in Juarez, a man
approached Marceleno with what Marceleno understood as an
offer to help him complete his community service in exchange
for payment. Marceleno testified that he accompanied this
unidentified man to a house in the mountains near Juarez, in
which several other individuals were staying. Instead of
completing his community service, Marceleno found himself
involved with a group of human traffickers. He testified
that he was compelled to work as a decoy in border-crossing
operations, carrying a ladder to the border fence, and "
touch[ing] . . . the fence with the ladder" in an effort
to distract Border Patrol agents. II ROA at 120.
testified that after several days of this decoy work, three
of the smugglers escorted him and two other individuals on a
nighttime trek that, Marceleno now understands, led him
across an open portion of the border into the United States.
About a quarter of the way into the journey, he told his
escorts that he could not continue because of his poor
health. One of the smugglers then threatened to stab him if
he did not continue, and that he would be found "
somewhere out there." Id. at 124-30, 168-71.
Marceleno admits that this threat was not repeated and that
he did not see any weapons, or witness similar violence
against other individuals during his time with the smugglers.
Marceleno nonetheless took the threat seriously and pressed
on. He eventually collapsed near an industrial facility about
200 yards inside the United States, although he claims he did
not know he was in the United States at the time. He
testified that at least one of the smugglers accompanied him
into United States territory, and was with him until shortly
before he collapsed. Marceleno testified that, as a result,
he was found in the United States without any intention of
being there, and that he reentered the United States under
government's evidence tells a different story. At the
same hearing on Marceleno's motion to withdraw his guilty
plea, the government presented testimony that although alien
smuggling organizations do use decoys to distract agents at
the border fence, they are typically pre-teens and teenagers.
Additionally, Border Patrol Agent Antonio Molina, who
discovered the collapsed Marceleno, testified that, although
Molina could not specifically remember the events from that
day, his incident report indicates that there was only a
single set of footprints leading north from the border to
where Marceleno was found. It is undisputed that when Agent
Molina found Marceleno and questioned him regarding his
destination, he replied " Fort Worth, Texas."
Id. at 146-47. Marceleno contends that, because of
exhaustion and confusion, he thought Agent Molina was asking
where he was from, not where he was headed. After being taken
to a Border Patrol station, Marceleno was again interviewed,
this time by Agent Kevin McIlwee. Marceleno again stated he
was headed to Fort Worth, but contends now that he was still
confused about the question. Marceleno does not dispute that
he did not tell either Agent Molina or Agent McIlwee that he
crossed the border under duress. When the agents asked if
Marceleno feared returning to Mexico, he said he did not.
initially pleaded not guilty to the charge of reentry of a
removed alien, but changed his plea after consultation with
counsel. According to Marceleno's counsel, Marceleno
stated " that he had been forced" to reenter the
United States. Aplt. Br. at 13. In response, counsel advised
Marceleno that duress " is almost never a viable defense
because there is almost always someplace else to go other
than the United States," and counsel did not seek
further details on the circumstances of Marceleno's
reentry. Id. During his guilty plea colloquy,
Marceleno confirmed that he understood the charge against him
and the trial rights he was waiving, that he had a full
opportunity to consult with his attorney and was satisfied
with his legal representation, and that no one was forcing
him to plead guilty. Marceleno heard the government represent
that it could prove that he is an alien who was removed from
the United States, and that he was found in New Mexico
without permission from the United States to reenter. The
district court found Marceleno competent and capable of
entering a guilty plea, and that his plea was knowing,
voluntary, and supported by an independent basis in fact.
Consequently, the district court accepted his guilty plea.
counsel now asserts that he made a " critical
mistake" by failing to inquire further into
Marceleno's statement that he was forced to reenter the
United States. Aplt. Br. at 13. Counsel states that he only
learned the facts which Marceleno related at the hearing when
preparing Marceleno's sentencing memorandum. It was only
after this more detailed discussion, approximately four
months after the district court accepted Marceleno's
guilty plea, that Marceleno filed a motion to withdraw his
plea. Marceleno asserted two grounds for withdrawal: (1)
legal innocence, claiming he lacked the intent to reenter the
United States and that he was under duress, and (2) his
mistaken understanding of the strength of his defenses
rendered his guilty plea unknowing.
two days of evidentiary testimony, the motion was denied. The
district court made extensive " findings of fact,"
including that it did not find Marceleno's testimony
regarding his reentry credible. I ROA at 37-41. The court
specifically noted that Marceleno's testimony was "
vague, inconsistent, and evasive." Id. at 37.
In contrast, the court found the Border Patrol agents'
testimony credible. Systematically rejecting each of
Marceleno's factual contentions regarding his innocence,
the court found that Marceleno " intentionally crossed
the border between Mexico and the United States of his own
free will." Id. at 41. ...