United States v. Perez-Hernandez ( 2021 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT January 27, 2021
_________________________________
Christopher M. Wolpert
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 19-2204
(D.C. No. 2:18-CR-03752-KG-1)
PEDRO PEREZ-HERNANDEZ, (D.N.M.)
Defendant - Appellant.
–––––––––––––––––––––––––––––––––––
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 19-2205
(D.C. No. 2:18-CR-04018-KG-1)
PEDRO PEREZ-HERNANDEZ, (D.N.M.)
Defendant - Appellant.
_________________________________
ORDER AND JUDGMENT *
_________________________________
Before HOLMES, BACHARACH, and MORITZ, Circuit Judges.
_________________________________
*
After examining the brief, pro se filings, and appellate record, this panel has
determined unanimously that oral argument would not materially assist in the
determination of these consolidated appeals. See Fed. R. App. P. 34(a)(2);
10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.
This order and judgment is not binding precedent, except under the doctrines of law
of the case, res judicata, and collateral estoppel. But it may be cited for its persuasive
value. See Fed. R. App. P. 32.1(a); 10th Cir. R. 32.1(A).
Pedro Perez-Hernandez appeals his illegal-reentry conviction and two related
sentences. Defense counsel filed an Anders brief and moved to withdraw. See Anders
v. California, 386 U.S. 738, 744 (1967) (stating that if after “conscientious
examination” of record counsel finds appeal “wholly frivolous,” then counsel may
move to withdraw and contemporaneously file “brief referring to anything in the
record that might arguably support the appeal”). Perez-Hernandez filed three pro se
responses to the Anders brief, 1 and the government declined to file a brief. We have
reviewed the Anders brief and Perez-Hernandez’s pro se responses and have
conducted a full examination of the record to determine whether the consolidated
appeals are wholly frivolous. See United States v. Calderon, 428 F.3d 928, 930 (10th
Cir. 2005). Because we conclude that they are, we dismiss the appeals and grant
counsel’s motion to withdraw. See Anders, 386 U.S. at 744.
The government charged Perez-Hernandez with illegal reentry after removal in
violation of 8 U.S.C. § 1326(a) and (b). During his bench trial, Perez-Hernandez
asserted that he could not be convicted of illegal reentry because he has derivative
citizenship through his allegedly adoptive stepfather. The district court rejected this
derivative-citizenship defense, finding that Perez-Hernandez failed to present
sufficient evidence to substantiate his adoption claim. The district court then found
Perez-Hernandez guilty of illegal reentry. And after considering, among other things,
1
For clarity, we refer to Perez-Hernandez’s first pro se response, filed June 17,
2020, as “Aplt. Resp.”; his second pro se response, filed August 3, 2020, as “Aplt.
Supp. Resp.”; and his third pro se response, filed August 27, 2020, as “Aplt. Second
Supp. Resp.”
2
Perez-Hernandez’s significant criminal history, the district court sentenced him to 63
months in prison. Additionally, because Perez-Hernandez’s illegal reentry violated
the conditions of his supervised release from his prior illegal-reentry conviction, the
district court also imposed a consecutive eight-month sentence for that violation.
Counsel identifies two possible arguments for Perez-Hernandez’s appeal: the
first concerns Perez-Hernandez’s assertion that the district court erred in denying his
derivative-citizenship defense, and the second is Perez-Hernandez’s claim that he
received ineffective assistance of counsel (IAC). Perez-Hernandez agrees that these
claims support his appeal, and he separately asserts additional arguments.
Regarding the derivative-citizenship defense, we review a district court’s
factual findings for clear error and its legal determinations de novo. See United States
v. Patton, 927 F.3d 1087, 1093 (10th Cir. 2019). Perez-Hernandez contends that he
presented sufficient evidence to establish his alleged adoption and the district court
therefore erred in rejecting his derivative-citizenship defense.
Adoption involves a formal judicial act and thus can generally be established
through official court documents, including a judgment of adoption. See Ojo v.
Lynch, 813 F.3d 533, 535, 539 (4th Cir. 2016). But Perez-Hernandez presents no
official court documents, nor does he offer any explanation for his failure to do so.
Instead, Perez-Hernandez relies on an August 11, 2014 email from Immigration and
Customs Enforcement (ICE) stating that Perez-Hernandez would “NOT be taken into
ICE custody as he was determined to have derived [U.S.] citizenship status through
3
his adopted father,” Case No. 19-2204, R. vol. 1, 43; an I-130 form 2 showing that his
stepfather claimed to be his adopted father; and a Social Security letter showing that
his mother at one time received Social Security benefits on his behalf. Perez-
Hernandez also selectively quotes from a prior hearing transcript to suggest that the
government once admitted that he was adopted: “[W]e do have these records and they
do show that those things that he’s asking us to take a look at, that he was actually
adopted and granted some sort of status for that adoption.” Aplt. Supp. Resp. 6.
Even assuming that adoption can be established without the judgment of
adoption or other official documents, the evidence Perez-Hernandez relies on here
falls short. As the district court explained, Perez-Hernandez fails to demonstrate how
an informal ICE email, an adoption claim on an I-130 form, or his mother’s receipt of
Social Security benefits on his behalf prove that he was legally adopted by his
stepfather. And as for the government’s supposed admission that Perez-Hernandez
was adopted, in full, the government actually stated:
[W]e do have these records and they do show that those things that he [is]
asking us to take a look at, it must have been a mistake or something other
than that, because he has no other proof, other than what we have, that he
was actually adopted and granted some sort of status for that adoption. We
[have] taken a look at extensive evidence. We [have] contacted his mother
and she [is] not able to provide us with anything that would show that he
was actually adopted.
2
An I-130 form is a form for U.S. citizens or lawful permanent residents to
petition the government to provide a permanent-resident card to the citizen or
permanent resident’s relative. See I-130, Petition for Alien Relative, U.S. Citizenship
and Immigration Services, https://www.uscis.gov/i-130 (last updated Dec. 14, 2020).
4
Aplt. Supp. Resp. Ex. C (emphasis added). Thus, this transcript does not support
Perez-Hernandez’s adoption claim.
Perez-Hernandez contends that he is unable to present any additional evidence
because of an alleged loss of his property and the difficulties posed by the passage of
time. But Perez-Hernandez fails to identify any evidence that he could have presented
were it not for these circumstances to establish that he was legally adopted. Because
Perez-Hernandez has not submitted competent evidence establishing his adoption by
his stepfather, the district court did not err in concluding that Perez-Hernandez has
not met the requirements for derivative citizenship. See Patton, 927 F.3d at 1093.
Turning to the IAC claims, Perez-Hernandez alleges that his trial counsel
failed to investigate certain issues, to present evidence, and to call an expert in
immigration law. He further contends that his trial counsel was ineffective for failing
to file a motion for a new trial such that Perez-Hernandez filed his own pro se new-
trial motion. Yet, except in rare circumstances, we consider IAC claims on collateral
review only. See United States v. Hahn, 359 F.3d 1315, 1327 n.13 (10th Cir. 2004).
IAC claims pursued on direct appeal “are presumptively dismissible, and virtually all
will be dismissed.” United States v. Flood, 635 F.3d 1255, 1260 (10th Cir. 2011)
(quoting United States v. Galloway, 56 F.3d 1239, 1240 (10th Cir. 1995) (en banc)).
Here, Perez-Hernandez has not offered any “argument supporting a reason to
depart from our general practice.” United States v. Porter, 405 F.3d 1136, 1144 (10th
Cir. 2005). Even if he had, the record is not sufficiently developed for us to resolve
Perez-Hernandez’s IAC claims. Moreover, the district court acknowledged the claims
5
but did not directly rule on them. “[T]his court has considered ineffective assistance
of counsel claims on direct appeal in limited circumstances, but only where the issue
was raised before and ruled upon by the district court and a sufficient factual record
exists.” Flood, 635 F.3d at 1260; see also Galloway, 56 F.3d at 1241 (noting that “we
will not remand” to develop record or obtain district-court ruling on IAC claims
brought “during the direct appeal of a case”). Accordingly, we decline to consider
Perez-Hernandez’s IAC claims.
We now turn to the additional arguments raised in Perez-Hernandez’s pro se
responses. He first contends that the district court erred by refusing to admit certain
exhibits that would allegedly support a finding of derivative citizenship. We review
evidentiary challenges for an abuse of discretion. See United States v. Tony, 948 F.3d
1259, 1261 (10th Cir. 2020). “A district court abuses its discretion when it renders an
arbitrary, capricious, whimsical, or manifestly unreasonable judgment,” and we will
reverse such a judgment only “if the court exceeded the bounds of permissible
choice.” United States v. Silva, 889 F.3d 704, 709 (10th Cir. 2018) (first quoting
Ralston v. Smith & Nephew Richards, Inc., 275 F.3d 965, 968 (10th Cir. 2001); and
then quoting United States v. McComb, 519 F.3d 1049, 1053 (10th Cir. 2007)), cert.
denied, 139 S. Ct. 1319 (2019).
The district court considered both parties’ extensive arguments regarding
Perez-Hernandez’s exhibits and made measured rulings as to the admissibility of
each exhibit. In particular, the district court found that the exhibits were hearsay and
were not sufficiently reliable or supported by guarantees of trustworthiness. The
6
district court further found that the exhibits were not admissible as an opposing
party’s statement, see Fed. R. Evid. 801(d)(2); as a business record, see Fed. R. Evid.
803(6); or under the residual exception, see Fed. R. Evid. 807. We detect no abuse of
discretion in the district court’s decision to exclude these exhibits. 3
Perez-Hernandez also argues—for the first time on appeal—that the district
court erred by finding the “incorrect” testimony of four witnesses credible. Aplt.
Resp. 5. Because this is a new argument on appeal, we apply plain-error review. See
United States v. Hinson, 585 F.3d 1328, 1333 (10th Cir. 2009). Under this standard,
even assuming that some error occurred and that the error was plain, it is apparent
that any credence the district court gave the testimony at issue did not affect Perez-
Hernandez’s substantial rights and did not “seriously affect[] the fairness, integrity,
or public reputation” of his trial. Id. For example, Perez-Hernandez argues that one
witness incorrectly testified that the manner in which Perez-Hernandez entered the
United States was by climbing a fence. Similarly, he argues that another witness
incorrectly testified as to the number of his deportations. Because the nature of this
testimony would not have “affected the outcome of th[e] proceeding,” Perez-
Hernandez cannot carry his burden to show plain error, and reversal is not warranted.
Id. at 1335.
3
In addition, the district court never ruled on the admissibility of one exhibit
at issue because Perez-Hernandez expressly declined to offer the exhibit at trial. To
the extent that this nonruling constituted error, we conclude Perez-Hernandez invited
it by declining to offer the exhibit below.
7
Perez-Hernandez next challenges the substantive reasonableness of his
sentences, contending that the district court abused its discretion by imposing
excessive sentences. Sentences must be procedurally sound and substantively
reasonable. See Gall v. United States, 552 U.S. 38, 51 (2007). Our review does not
reveal any procedural errors with either sentence.
Substantive reasonableness depends on “whether the length of the sentence is
reasonable given all the circumstances of the case in light of the factors set forth in
18 U.S.C. § 3553(a).” United States v. Alapizco-Valenzuela, 546 F.3d 1208, 1215
(10th Cir. 2008) (quoting United States v. Conlan, 500 F.3d 1167, 1169 (10th Cir.
2007)). We review for an abuse of discretion, “a standard requiring ‘substantial
deference to district courts.’” United States v. Friedman, 554 F.3d 1301, 1307 (10th
Cir. 2009) (quoting United States v. Sells, 541 F.3d 1227, 1237 (10th Cir. 2008)).
Perez-Hernandez’s sentences fall within the ranges set forth by the advisory
United States Sentencing Guidelines (the Guidelines), and we therefore presume they
are substantively reasonable. See Alapizco-Valenzuela, 546 F.3d at 1215. This
presumption can be rebutted by a showing that the sentences are unreasonable in light
of the § 3553(a) factors. See id. Although Perez-Hernandez believes his sentences are
excessive, he fails to point to any facts undermining the district court’s rationale.
And the record supports the district court’s decisions to impose the 63-month and
eight-month sentences. For example, the district court explained that this is not
Perez-Hernandez’s first violation of the law, or even his first reentry, and it relied on
8
this criminal history to justify the length of the sentences. Accordingly, any challenge
to the substantive reasonableness of either sentence would be wholly frivolous.
Perez-Hernandez also contends that he should have been fined rather than sent
to prison. But the Guidelines advise imposing sentences of imprisonment for both
Perez-Hernandez’s illegal-reentry conviction and his supervised-release violation.
See U.S.S.G. § 5C1.1(f) (instructing that minimum term “shall be satisfied by a
sentence of imprisonment”); id. § 7B1.3(a)(1), (c)(2) (advising revocation of
supervised release and imposition of prison sentence). And Perez-Hernandez fails to
demonstrate that the district court abused its discretion in declining to vary from the
Guidelines.
Finally, Perez-Hernandez argues that he should have been granted bail rather
than sent to prison, but bail is not an alternative to a prison sentence. Cf., e.g.,
18 U.S.C. §§ 3141–3143 (explaining availability of bail pending trial, sentencing,
and appeal but not discussing bail as alternative to prison). 4
Because our review of the submissions and examination of the record reveals
no nonfrivolous basis for appeal, we dismiss the consolidated appeals and grant the
4
Perez-Hernandez raises several additional arguments relating to his
conviction and sentences. We decline to consider these additional arguments as they
are either demonstrably untrue or lack legal or factual support.
9
motion to withdraw. See Calderon, 428 F.3d at 930.
Entered for the Court
Nancy L. Moritz
Circuit Judge
10