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United States v. Marceleno

United States Court of Appeals, Tenth Circuit

April 11, 2016

UNITED STATES OF AMERICA, Plaintiff - Appellee,
HIRAM MARCELENO, Defendant - Appellant


         Gregory M. Acton, Albuquerque, New Mexico, for Defendant-Appellant.

         William J. Pflugrath, Assistant United States Attorney (Damon P. Martinez, United States Attorney, with him on the brief), Albuquerque, New Mexico, for Plaintiff-Appellee.

         Before KELLY, BRISCOE and HARTZ, Circuit Judges. HARTZ, Circuit Judge, dissenting.


         BRISCOE, Circuit Judge.

         Hiram 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.


         Marceleno 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.[1] 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.

         Marceleno 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 duress.

         The 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.

         Marceleno 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.

         Marceleno's 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.

         After 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. ...

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