United States v. Santiago-Ochoa, Noel ( 2006 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-3338
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
NOEL SANTIAGO-OCHOA,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 03 CR 1009-1—Milton I. Shadur, Judge.
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ARGUED OCTOBER 18, 2005—DECIDED MAY 19, 2006
____________
Before POSNER, KANNE, and WILLIAMS, Circuit Judges.
KANNE, Circuit Judge. Mexican national Noel Santiago-
Ochoa was convicted of reentering the United States
without permission after he was removed following convic-
tion for an aggravated felony. See 8 U.S.C. § 1326(a). The
district court sentenced him to 77 months’ incarceration and
3 years’ supervised release. Santiago-Ochoa now renews the
due process challenge raised in his unsuccessful motion to
dismiss the indictment, and also argues that United States
v. Booker, 543 U.S. 220 (2005), compels resentencing. We
affirm the conviction and direct a limited remand of the
sentence under United States v. Paladino, 401 F.3d 471 (7th
Cir. 2005).
2 No. 04-3338
I. History
Santiago-Ochoa first entered the United States without
authorization in 1988. During his stay, he was twice
convicted of domestic battery in Illinois, first in 1996 and
again in 1997. The second offense was a Class 4 felony
because it followed a prior conviction for domestic battery.
See 720 ILCS 5/12-3.2(b). Santiago-Ochoa also was con-
victed in Illinois in 1998 of delivery of a controlled sub-
stance. While he was serving the 180-day jail term imposed
as a condition of his sentence of probation on that convic-
tion, immigration authorities learned of his presence in the
United States.
The Immigration and Naturalization Service (INS)
(now the U.S. Citizenship and Immigration Services
(USCIS), a bureau of the Department of Homeland Secu-
rity) concluded that Santiago-Ochoa was removable under
8 U.S.C. § 1227(a)(2)(A)(iii) (making deportable any alien
convicted of an aggravated felony) based on his drug
conviction, see 8 U.S.C. § 1101(a)(43)(B) (defining “aggra-
vated felony” as “including a drug trafficking crime”) and
took him into custody on December 23, 1998. Santiago-
Ochoa was notified that the INS intended to issue a final
administrative order of removal under the expedited
procedures set out in 8 U.S.C. § 1228(b), which, as the
notice explained, do not involve a hearing before an immi-
gration judge. See 8 C.F.R. § 238.1(b)(2). The notice advised
Santiago-Ochoa that he had the right to retain counsel and
contest his removal, and that he could seek judicial review
of the final administrative order by filing a petition for
review within 14 days after the order was issued. The notice
also informed him that he could waive judicial review by
executing a written waiver. A certificate of service at the
bottom of the notice represents that it was personally
served on Santiago-Ochoa and explained to him in both
English and Spanish.
No. 04-3338 3
The government asserts—and Santiago-Ochoa has never
disputed—that he signed a form acknowledging receipt of
the notice. That form includes an acknowledgment that he
waived his rights to contest the removal and to “petition for
review of the Final Removal Order.” Santiago-Ochoa was
removed to Mexico on December 30, 1998.
He did not remain in Mexico long. Police records show
that just two weeks later officers in Streator, Illinois,
responded to an anonymous complaint that Santiago-Ochoa
had beaten his girlfriend and confined her in her home for
several days. In July 2000 he was arrested near Chicago for
driving under the influence. A driver’s license check
disclosed that he was present in the country illegally, and
the officers contacted the INS. In October 2000 the INS
gave Santiago-Ochoa notice that it intended to reinstate his
1998 removal order under 8 U.S.C. § 1231(a)(5). The
government asserts—and again Santiago-Ochoa has never
disputed—that he signed an acknowledgment stating that
he did not wish to contest the reinstatement. He was swiftly
removed.
Once more Santiago-Ochoa returned to the United States.
In 2001 he was again arrested in Illinois for delivery of a
controlled substance. He was convicted in 2002 and sen-
tenced to prison, and was still serving that state sentence
when federal authorities charged him in this case in 2003.
Santiago-Ochoa responded to the federal indictment by
moving to dismiss under 8 U.S.C. § 1326(d). Under that
provision, a defendant charged with violating § 1326(a) may
collaterally attack the removal underlying his criminal
prosecution by showing that: (1) he exhausted available
administrative remedies, (2) the removal proceed-
ings improperly deprived him of the opportunity for judicial
review, and (3) the entry of the removal order was funda-
mentally unfair. See 8 U.S.C. § 1326(d)(1)-(3). Santiago-
Ochoa’s memorandum of law supporting his motion to
dismiss was almost unintelligible, but his essential claim
was that the 1998 removal proceedings were conducted in
4 No. 04-3338
a manner so “grossly inept and incompetent” as to render
his waiver of his right to contest the final order of removal
unknowing. The government countered that he failed to
satisfy all three § 1326(d) requirements.
The district court denied Santiago-Ochoa’s motion to
dismiss in a one-sentence minute order stating that the
ruling was explained “orally in open court.” The court’s
reasoning is unavailable, however, because Santiago-Ochoa
never ordered a transcript of the hearing. After the denial
of his motion, he pleaded guilty to the indictment, reserving
in writing the right to appeal the denial of his motion to
dismiss. He was sentenced on August 26, 2004, at the
bottom of the Guidelines range. Santiago-Ochoa also failed
to obtain a sentencing transcript, so there is no way to tell
from this record whether the court explained its reasons for
choosing this sentence or elaborated on its understanding
of our decision in United States v. Booker, 375 F.3d 508 (7th
Cir. 2004), aff’d, 543 U.S. 220 (2005), which was decided
seven weeks before Santiago-Ochoa was sentenced.
II. Analysis
On appeal Santiago-Ochoa argues that the district court
erred in denying his motion to dismiss the indictment. In
the alternative he argues that he should be resentenced
because the district court adjusted his offense level based
on a finding that he believes required a jury determination.
However, both his appellate arguments lack evidentiary
support because he has not provided us transcripts of the
relevant hearings. We could decline to review either
issue on this ground alone. See Fed. R. App. P. 3(a)(2),
10(b)(1)(A); United States v. Verduzco-Martinez, 186 F.3d
1208, 1215 (10th Cir. 1999); United States v. Ferguson, 35
F.3d 327, 334 (7th Cir. 1994). However, as long as meaning-
ful review is possible, we may exercise our discretion and
look to the merits. See Birchler v. Gehl Co., 88 F.3d 518,
No. 04-3338 5
519-20 (7th Cir. 1996); Rodriguez v. Anderson, 973 F.2d
550, 552 (7th Cir. 1992).
Moreover, because our review of the denial of a motion to
dismiss under § 1326 is de novo, see United States v. El
Shami, 434 F.3d 659, 663 (4th Cir. 2005); United States
v. Gonzalez, 429 F.3d 1252, 1255 (9th Cir. 2005); United
States v. Gonzalez-Coronado, 419 F.3d 1090, 1092 (10th Cir.
2005), it is not necessary for us to know precisely how the
district court reached its decision on that issue. And the
government does not urge dismissal; in fact, it suggests that
a limited remand of the sentence is warranted.
We begin our merits analysis with the denial of Santiago-
Ochoa’s motion to dismiss. Here, we agree with the district
court’s implicit conclusion that Santiago-Ochoa did not
satisfy the § 1326(d) requirements. First, by waiving his
right to contest his removal, he failed to exhaust his
administrative remedies. See United States v. Martinez-
Rocha, 337 F.3d 566, 569 (6th Cir. 2003). Because he was
removed under expedited procedures, he did not appear
before an immigration judge, and thus did not have re-
course to an administrative appeal before the Board of
Immigration Appeals. But as he was informed by a notice
whose receipt he acknowledged, there are special proce-
dures for challenging expedited removal charges. See 8
U.S.C. § 1228(b)(4)(C) (requiring that alien have “reason-
able opportunity to inspect the evidence and rebut the
charges”); 8 C.F.R. § 238.1(c)(1) (providing that alien may
respond to Notice of Intent within 10 calendar days of
service, or 13 calendar days, if service is by mail. The alien
may submit evidence of his own, request to review the
government’s evidence, or, if necessary, request an exten-
sion of the time for response.). The fact that Santiago-Ochoa
chose not to avail himself of this remedy does not relieve
him of his § 1326(d)(1) duty to exhaust.
Santiago-Ochoa failed to satisfy the second prong of
§ 1326(d) because he made no showing that he was unable
6 No. 04-3338
to petition for review of the administrative decision under
28 U.S.C. § 2241. To the extent he contends that he was
deprived of the opportunity for judicial review by 8 U.S.C.
§ 1252(a)(2)(C)—which generally precludes review of orders
of removal where the alien has committed an aggravated
felony—his argument is foreclosed by United States v.
Roque-Espinoza, 338 F.3d 724, 729 (7th Cir. 2003). That
decision holds that an alien is not deprived of judicial
review for purposes of § 1326(d)(2) as long as he has
recourse to relief through a petition for habeas corpus.1 Id.
Santiago-Ochoa attempts to distinguish his case from
Roque-Espinoza on the ground that the defendant in
that case did not attempt to challenge his removal pro-
ceedings until after he pleaded guilty, but we cannot see
why this distinction matters.
Finally, Santiago-Ochoa is unable to satisfy § 1326(d)(3)’s
requirement that he demonstrate that entry of the 1998
removal order was “fundamentally unfair.” This means that
in addition to showing a violation of due process, see Roque-
Espinoza, 338 F.3d at 729, he must show that he was
prejudiced by the removal proceedings, see United States v.
Espinoza-Farlo, 34 F.3d 469, 471 (7th Cir. 1994). Santiago-
Ochoa can demonstrate neither. He contends that his right
to due process was violated because he was not informed of
his eligibility for discretionary forms of relief such as
cancellation of removal and adjustment of status. But his
only authority for arguing that he had a right to be in-
1
Were the removal occurring today, this aspect of the case would
be different. Santiago-Ochoa, like Roque-Espinoza, was removed
in 1998; at that time, for aggravated felons, even constitutional
questions and questions of law were reviewable only under a
petition for habeas corpus. But the REAL ID Act of 2005, Pub. L.
No. 109-13, 119 Stat. 231, has amended 8 U.S.C. § 1252 to provide
for exclusive review of such questions in the courts of appeals. See
id. § 106(a)(1)(A).
No. 04-3338 7
formed is United States v. Mendoza-Lopez, 481 U.S. 828(1987), where the Supreme Court was asked to assume
rather than decide that the “respondents’ rights to due
process were violated by the failure of the Immigration
Judge to explain adequately their right to suspension of
deportation or their right to appeal.” Id. at 839-40.
Since Mendoza-Lopez was decided, however, a majority of
circuits have rejected the proposition that there is a consti-
tutional right to be informed of eligibility for—or to be
considered for—discretionary relief. See Bonhometre v.
Gonzales, 414 F.3d 442, 448 n.9 (3d Cir. 2005); United
States v. Aguirre-Tello, 353 F.3d 1199, 1205 (10th Cir. 2004)
(en banc); United States v. Lopez-Ortiz, 313 F.3d 225, 231
(5th Cir. 2002); Smith v. Ashcroft, 295 F.3d 425, 430 (4th
Cir. 2002); Oguejiofor v. Attorney Gen. of the United States,
277 F.3d 1305, 1309 (11th Cir. 2002); Escudero-Corona v.
INS, 244 F.3d 608, 615 (8th Cir. 2001); Ashki v. INS, 233
F.3d 913, 921 (6th Cir. 2000); see also Roque-Espinoza, 338
F.3d at 729-30 (reasoning similarly in dicta that “it would
be hard to show that the loss of a chance at wholly discre-
tionary relief from removal is the kind of deprivation of
liberty or property that the due process clause is designed
to protect”). But see United States v. Copeland, 376 F.3d 61,
70-73 (2d Cir. 2004) (holding that failure to inform alien of
eligibility for a waiver of deportation may be “fundamen-
tally unfair within the meaning of Section 1326(d)” because
of the serious consequences of removal and the “special
responsibilities” of IJs as administrators in nonadversarial
proceedings); United States v. Ubaldo-Figueroa, 364 F.3d
1042, 1049-50 (9th Cir. 2003) (holding that IJ’s failure to
inform alien of eligibility for relief from removal violated
due process because regulation imposing duty to do so was
“mandatory”). We now join the majority of circuits.
Furthermore, even if there had been a violation of
Santiago-Ochoa’s due process rights, he would still be
unable to show prejudice. First, he is an aggravated felon,
8 No. 04-3338
which means he is conclusively presumed to be subject to
removal and is ineligible for cancellation of removal,
voluntary departure, and registration as a permanent
resident alien. See Espinoza-Farlo, 34 F.3d at 471-72. When
we add to the obstacles imposed by virtue of that status the
effect of § 1228(b)(5)’s exclusion of aliens removed under the
expedited procedures from “any relief from removal that the
Attorney General may grant in the Attorney General’s
discretion,” the absence of prejudice is deducible almost as
a matter of law. See United States v. Garcia-Martinez, 228
F.3d 956, 963 (9th Cir. 2000) (holding that for alien con-
victed of aggravated felony and placed in expedited proce-
dures under § 1228, removal is “foregone conclusion”);
United States v. Benitez-Villafuerte, 186 F.3d 651, 659 (5th
Cir. 1999) (same).
As for his Booker claim, Santiago-Ochoa’s primary
contention is frivolous. He argues that Booker implicitly
overruled the holding of Almendarez-Torres v. United
States, 523 U.S. 224 (1998), and that therefore the district
court’s failure to submit the question whether he committed
a “crime of violence” to a jury violated his rights under the
Sixth Amendment. But we have repeatedly rejected invita-
tions to anticipate the Supreme Court in overruling this
precedent. See, e.g., United States v. Browning, 436 F.3d
780, 781-82 (7th Cir. 2006); United States v. Pittman, 418
F.3d 704, 709 (7th Cir. 2005). And a Sixth Amendment
claim would not lie even if Almendarez-Torres were over-
ruled, because whether his offense was a crime of violence
is a question of law. See United States v. Lewis, 405 F.3d
511, 513-14 (7th Cir. 2005); United States v. Bryant, 310
F.3d 550, 552 (7th Cir. 2002). Further, in his plea agree-
ment Santiago-Ochoa twice stipulated that his crime was a
crime of violence, and facts admitted by the defendant need
not be submitted to a jury. See Browning, 436 F.3d at 782;
Pittman, 418 F.3d at 709.
We will, however, adopt the government’s suggestion and
order a limited remand under Paladino. Such remands
No. 04-3338 9
normally require us to examine the sentencing transcript in
order to determine whether the district court would have
imposed a lighter sentence if it had known that the Guide-
lines were advisory, see Paladino, 401 F.3d at 482-83;
United States v. Lee, 399 F.3d 864, 866 (7th Cir. 2005); but
the government’s concession here that the district court
treated the Guidelines as mandatory and that it is “impos-
sible to say” whether it would have imposed a lesser
sentence, see United States v. Johnson, 437 F.3d 665, 679
(7th Cir. 2006); Paladino, 401 F.3d at 483-84, make that
step unnecessary.
III. Conclusion
We affirm the conviction and direct a limited remand
of the sentence under Paladino.
10 No. 04-3338
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—5-19-06