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United States v. Almanza-Vigil

United States Court of Appeals, Tenth Circuit

January 7, 2019

UNITED STATES OF AMERICA, Plaintiff - Appellee,
OSCAR ALMANZA-VIGIL, Defendant-Appellant.

          Appeal from the United States District Court for the District of New Mexico (D.C. No. 2:15-CR-02605-RB-1)

          James N. Langell, Assistant Federal Public Defender (Stephen P. McCue, Federal Public Defender, with him on the briefs), Office of the Federal Public Defender, Las Cruces, New Mexico, for Appellant.

          Marisa A. Ong, Assistant United States Attorney (James D. Tierney, Acting United States Attorney, with her on the brief), Office of the United States Attorney, Las Cruces, New Mexico, for Appellee.

          Before PHILLIPS, KELLY, and MURPHY, Circuit Judges.


         The Immigration and Naturalization Act (INA) defines "aggravated felony" to include "illicit trafficking in a controlled substance," 8 U.S.C. § 1101(a)(43)(B), making removal from this country "a virtual certainty" for a noncitizen convicted of such a crime, Sessions v. Dimaya, 138 S.Ct. 1204, 1211 (2017). The INA imposes serious consequences on a noncitizen convicted of an aggravated felony: (1) he becomes deportable, 8 U.S.C. § 1227(a)(2)(A)(iii); (2) he loses the ability to obtain discretionary relief, like cancellation of removal, id. § 1229b(a)(3), or voluntary departure, id. § 1229c(a)(1); and (3) he is subject to expedited removal proceedings, with no immigration judge present, id. § 1228(a)(1).

         That helps explain the stakes for Oscar Almanza-Vigil. In 2007, he pleaded guilty in Colorado state court to "selling or distributing" methamphetamine in violation of Colorado Revised Statutes § 18-18-405(1)(a) (2006), for which he received a four-year prison sentence. In 2009, when the state paroled him, Immigration and Customs Enforcement (ICE) initiated expedited removal proceedings against him, declaring that he had committed an aggravated felony. With that designation, he had no right to an administrative hearing before an immigration judge. Compare 8 U.S.C. § 1229a ("An immigration judge shall conduct proceedings for deciding the inadmissibility or deportability of an alien."), with 8 U.S.C. § 1228(b)(1), and 8 C.F.R. § 238.1(b)(2)(i) (allowing the government to put aggravated felons in expedited removal proceedings without a hearing before an immigration judge). Within the week, the Department of Homeland Security had issued a final administrative removal order, and ICE agents had sent Almanza-Vigil back across the border to Mexico. Six years later, border-patrol agents found Almanza-Vigil in the New Mexico desert. Then, charged with illegal reentry, Almanza-Vigil moved to dismiss the indictment by collaterally attacking his previous removal order and arguing, for the first time, that he never committed an aggravated felony.

         Now reviewing the district court's judgment convicting Almanza-Vigil for illegal reentry, we must return to 2009, when he left state prison, and ask how he could have avoided removal. To prevail here, Almanza-Vigil must show not only that his Colorado felony was not an aggravated felony, but that misclassifying it as one prejudiced him. To show the required prejudice, he must show that the misclassification rendered the entry of the 2009 removal order fundamentally unfair. Absent that, his appeal fails. See 8 U.S.C. § 1326(d).

         For the reasons detailed below, we conclude that Almanza-Vigil's Colorado felony does not fit the INA's definition of an aggravated felony. But we also conclude that he failed to demonstrate a reasonable likelihood of avoiding removal but for the erroneous classification of his conviction. The INA therefore parries a collateral attack on Almanza-Vigil's previous removal order. 8 U.S.C. § 1326(d). So, exercising our jurisdiction to review the district court's final orders, 28 U.S.C. § 1291, we affirm that court's judgment of conviction.[1]


         Born in Chihuahua in 1984, Almanza-Vigil is a Mexican citizen. In 1993, eight-year-old Almanza-Vigil and his family trekked across the Mexico-United States border, without documents and without government inspection, and settled in Colorado. Almanza-Vigil never acquired legal immigration status, but he grew up in this country, learning English, graduating from high school, finding work at a dairy farm, and eventually fathering a son.

         In 2006, when Almanza-Vigil was twenty-one years old, the district attorney in Fort Morgan, Colorado, charged him with six violations of the state's controlled-substances act, all felonies. Counts 1, 2, and 3 of the criminal complaint charge three, identical crimes: that "[o]n or [a]bout" September 15, 20, and 27 of that year, Almanza-Vigil "unlawfully, feloniously, and knowingly sold or distributed METHAMPHETAMINE, a schedule II controlled substance, in violation of section 18-18-405(1), (2)(a)(I)(A), [Colorado Revised Statutes]." Suppl. R. vol. 2 at 3 (bolding removed). Likewise, counts 4, 5, and 6 charge him with possessing methamphetamine "[o]n or [a]bout" the same dates. Id. vol. 2 at 3-4.

         At the time, Colorado Revised Statutes § 18-18-405 provided, in pertinent part:

(1)(a) Except as authorized by [other provisions of state law], it is unlawful for any person knowingly to manufacture, dispense, sell, distribute, possess, or to possess with intent to manufacture, dispense, sell, or distribute a controlled substance; or induce, attempt to induce, or conspire with one or more other persons, to manufacture, dispense, sell, distribute, possess, or possess with intent to manufacture, dispense, sell, or distribute a controlled substance; or possess one or more chemicals or supplies or equipment with intent to manufacture a controlled substance.
(2)(a) Except as is otherwise provided in subsection (2.3) of this section for possession offenses not including possession with the intent to distribute involving one gram or less of any material, compound, mixture, or preparation that contains any quantity of a schedule I through IV controlled substance, . . . any person who violates any of the provisions of subsection (1) of this section:
(I) In the case of a controlled substance listed in schedule I or II of part 2 of this article, commits:
(A) A class 3 felony; except that a person commits a class 4 felony if such violation is based on the possession of a controlled substance listed in schedule II unless otherwise provided in paragraph (a) of subsection (3) of this section[.]
(2.3)(a) Any person who commits the offense of possession in violation of the provisions of subsection (1) of this section by possessing any material, compound, mixture, or preparation, weighing one gram or less that contains any quantity of a controlled substance listed in schedules I through IV of part 2 of this article commits:
(I) A class 6 felony[.]

Colo. Rev. Stat. § 18-18-405 (2006).[2]

         In August 2007, Almanza-Vigil pleaded guilty to count 1, "selling or distributing" methamphetamine. In exchange, the state dismissed the remaining five charges. The state court's "sentence order" reflects this bargain. Suppl. R. vol. 2 at 5. The order shows Almanza-Vigil's "Plea of Guilty" to count 1, "18-18-405(1), (2)(a)(I)(A) - Controlled subst-Distribute s," a class 3 felony, and lists counts 2, 3, 4, 5, and 6-two more distribution charges (also class 3 felonies) and three possession charges (two class 4 felonies and one class 6 felony)-as "Dism by DA." Suppl. R. vol. 2 at 5. The court sentenced Almanza-Vigil to serve four years in state prison.

         Two years passed. Then, prison officials informed Almanza-Vigil (whose parole was approaching) that the federal government had issued an immigration hold. "[Y]ou're going to be going to Mexico," he remembers being told. R. vol. 1 at 154:25. And from that point on, he claims, he "never thought" that he would be able to challenge his removal. R. vol. 1 at 155:1.

         In April 2009, the state released Almanza-Vigil to ICE agents, who detained him pending his removal. The Department of Homeland Security had decided that Almanza-Vigil's Colorado conviction met 8 U.S.C. § 1101(a)(43)(B)'s definition of an "aggravated felony," making him deportable under 8 U.S.C. § 1227(a)(2)(A)(iii) and, because he lacked permanent-resident status, subjecting him to expedited removal proceedings under 8 U.S.C. § 1228(b) and 8 C.F.R. § 238.1(b), (d), without a hearing before an immigration judge.[3]

         The record on appeal contains the two forms that the government claims to have given Almanza-Vigil during these proceedings: a two-page Notice of Intent (exhibit 4) and a one-page Certificate of Service (exhibit 5). These forms are, in the district court's words, "a mess." R. vol. 1 at 354 ¶ 10.

         Exhibit 4 is titled, "Notice of Intent to Issue a Final Administrative Removal Order." Suppl. R. vol. 2 at 6. Below that title, the Notice is addressed to "Oscar ALAMANZA-VIGIL" (a misspelling repeated on the next page). Id. at 6, 7. The Notice then sets forth the "Charge": "You are deportable under . . . 8 U.S.C. § 1227(a)(2)(A)(iii), as amended, because you have been convicted of an aggravated felony . . . ." Suppl. R. vol. 2 at 6. And it explains "Your Rights and Responsibilities," including (1) that "you may contact legal counsel from the list of available services provided to you" (a list that the government didn't provide) and (2) that if you want to exercise your rights to rebut the charge or to seek judicial review, the government must receive your written response within ten days. Id. But the Notice lacks a designated space for Almanza-Vigil's signature. And while the Notice's first page claims to be "Form I-851," the next page identifies itself as "Form I-831 Continuation Page" and purports to be the third of three pages. Id. at 7. Above this puzzling footer, the Continuation Page contains a typewritten paragraph alleging, "You were[] . . . convicted . . . for the offense of, Controlled Substance-Distribute Sch. 2; to wit: Methamphetamine in violation of C.R.S. 18-18-405(1), (2)(a)(I)(A) for which the term of imprisonment was 4 years." Id.

         Exhibit 5, the Certificate of Service, begins with an ICE agent's signed statement: "I served this Notice of Intent. I have determined that the person served with this document is the individual named on the other side of the form." Id. at 8. (The contents of the "other side" remain a mystery: the district court deduced only that "the other side" was probably not the Certificate, based on the government's introduction of the Notice and the Certificate as separate exhibits.) Beneath two checked boxes-one admitting "the allegations and charge in this Notice of Intent," another waiving "the right to remain in the United States . . . to apply for judicial review"-the Certificate has three lines: on the first is a hand-drawn "x" and Almanza-Vigil's signature; on the second, someone printed "Oscar Almanza"; and on the third is the date, April 6, 2009. Id.

         In the government's view, Almanza-Vigil knowingly waived his right to contest his removal by signing the Certificate. So, on April 6 (the same day that he signed it), the Department of Homeland Security issued a final administrative removal order declaring (1) that Almanza-Vigil is not a U.S. citizen, (2) that he has never been lawfully admitted for permanent residence to the United States, and (3) that he has been convicted of an aggravated felony defined in 8 U.S.C. § 1101(a)(43)(B). ICE executed the order a week later, on April 13, and an immigration official witnessed Almanza-Vigil walk across the border near El Paso, Texas, and into Mexico.

         Six years later, in April 2015, a set of footprints in the New Mexico desert led border-patrol agents to Almanza-Vigil, who was hiding in a mesquite bush near the border fence. The agents arrested him, suspecting that he'd entered illegally. After his processing revealed the 2009 removal order, prosecutors filed a criminal complaint in the U.S. District Court for the District of New Mexico, alleging that Almanza-Vigil had reentered the country in violation of an outstanding removal order that had followed an aggravated-felony conviction. Three months later, a grand jury returned an indictment charging him with illegal reentry in violation of 8 U.S.C. § 1326(a) and (b).

         Almanza-Vigil moved to dismiss the indictment by attacking his 2009 removal order-the government's proof that he had reentered illegally (a felony under 8 U.S.C. § 1326) rather than merely entered improperly (a misdemeanor under § 1325). The 2009 removal order was "improperly issued," he claimed, because he had never been convicted of an aggravated felony. R. vol. 1 at 54. Had the government realized this, he argued, he would not have been put in expedited removal proceedings, and he could have applied for (and likely received) discretionary relief from removal. But the district court denied the motion and foreclosed Almanza-Vigil's collateral attack. Twice, Almanza-Vigil asked the court to reconsider this ruling, but twice, the court refused.

         On December 14, 2015, after denying Almanza-Vigil's first motion to reconsider, the court held a bench trial. "[B]ased upon the undisputed testimony" that he had returned to the United States without permission after being deported, the court found Almanza-Vigil guilty of violating 8 U.S.C. § 1326(a) and (b). Four weeks later, after denying his second motion to reconsider, the court entered judgment and sentenced Almanza-Vigil to 635 days in prison (approximately time served-he had been in custody since his arrest on April 19, 2015).[4] He immediately appealed.


         Almanza-Vigil challenges the district court's refusal to dismiss the illegal-reentry indictment. On appeal, as in the district court, he disputes the validity of his 2009 removal order by arguing that it was entered without due process. When a noncitizen attacks the constitutionality of a previous removal proceeding in this way, he presents a mixed question of law and fact that we review de novo. United States v. Aguirre-Tello, 353 F.3d 1199, 1204 (10th Cir. 2004). But before addressing the merits of Almanza-Vigil's appeal, we must narrow the question. To do so, we weave together the appeal's statutory and procedural context.

         A. How Can a Noncitizen Prosecuted for Illegal Reentry Collaterally Attack the Underlying Removal Order?

         When the government prosecutes a noncitizen for illegal reentry, it typically must prove two things: (1) that the noncitizen left the United States with an outstanding order of removal against him and (2) that afterward, the noncitizen entered, tried to enter, or was found in the United States. 8 U.S.C. § 1326(a).

         When the government offers a previous removal order as evidence of the first element, the Fifth Amendment protects the noncitizen's right to challenge that order, even years after the time for appeal has passed and the order has become final. United States v. Mendoza-Lopez, 481 U.S. 828, 837-39 (1987); accord United States v. Adame-Orozco, 607 F.3d 647, 651 (10th Cir. 2010). Congress codified this right in 8 U.S.C. § 1326(d), subject to a noncitizen's meeting three conditions. See Adame-Orozco, 607 F.3d at 651. To collaterally attack a previous removal order, the noncitizen must show (1) that he exhausted all administrative remedies available to contest the previous removal order, (2) ...

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