Immigration Criminal Offenses

Published on: June 5, 2013

Defendant’s own admission in his state court aggravated battery conviction helped the court find it was a crime of violence

In U.S. v. Diaz Calderone, the defendant was convicted and sentenced for the federal crime of being found in the United States after having been deported. The issue here is whether a prior Florida aggravated battery conviction should be classified as a “crime of violence” under the sentencing guidelines to warrant a sentence enhancement. The 11th Circuit found it was, and in this appeal the defendant challenged the district court’s application of the “modified categorical” approach in determining that Diaz Calderone’s prior was a crime of violence.

The defendant’s aggravated battery conviction, he was specifically charged with the battery on a pregnant victim whom the perpetrator knew or should have known was pregnant. Under the Florida statute for battery, an aggravated battery upon a pregnant woman need not be violent and can be committed merely by intentional touching the pregnant victim against her will by committing a simple battery. Simple battery occurs when a person intentionally touches or strikes another person against their will, or intentionally causes bodily harm to another person. Therefore under Florida law, aggravated battery upon a pregnant woman can be accomplished by: 1) intentional touching, including slight contact; 2) striking; or 3) intentionally causing bodily harm. The 11th Circuit determined that a conviction for aggravated battery on a pregnant woman is not a categorical crime of violence because the slightest contact could be an aggravated felony under the Florida statute but not a crime of violence under the federal sentencing guidelines for sentencing guidelines purposes. The district court correctly applied the modified categorical approach.

The charges and conviction did not establish what Diaz-Calderone did because he pleaded nolo contendere to an information which charged him in the disjunctive with intentionally touching or striking the victim against the person’s will or intentionally causing bodily harm to the victim. Standing alone the charges are consistent with either mere touching, which would not be a crime of violence, or with causing bodily harm, which would be a crime of violence.

Published on: January 6, 2013

By pleading guilty to the indictment charging a prior aggravated felony, the defendant waived any appeal to his objection to the charge

by The Swartz Law Firm

Sandra Day O’Connor sat on this panel also. The opinion was written by Judge Pryor. In U.S. v. Garcia-Sandobal, the defendant, citizen of Honduras, entered the United States illegally and committed a variety of crimes. After he was deported in 1998, he reentered illegally, and committed more crimes, including a conviction for disorderly intoxication for which he was sentenced to 50 days in jail. In 2010 he was indicted in federal court located in Florida with the federal crime of being found in the United States after having been previously removed under 8 U.S.C. section 1326.

Section 1326(b)(2) provides for a maximum prison sentence of 20 years if the defendant was removed following a conviction of an aggravated battery. The indictment alleged Garcia’s three prior aggravated felonies imposed before his removal including 1996 convictions for battery on a law enforcement officer and obstructing an officer with violence. At Garcia’s guilty plea he announced that he was preserving the right to challenge the classification of the prior sentences as aggravated convictions. As expected, the pre-sentence investigation report recommended a 16 point enhancement base on the 1996 conviction for obstructing an officer with violence.

Garcia’s claim that the federal district court erred when it accepted his guilty plea was waived by his guilty plea.

Published on: June 24, 2012

Grouping separately upheld for illegal reentry conviction and possession of a firearm by an illegal alien conviction

by The Swartz Law Firm

In U.S. v. Jimenez, the 11th Circuit addressed a federal sentencing guidelines issue involving grouping counts. The district court grouped Jimenez’s conviction for illegal reentry after deportation and his conviction for firearm possession by an illegal alien, giving him more jail time. The 11th Circuit denied Jimenez’s challenge and held that the district court was correct in not grouping these two counts. Jimenez, a citizen of Mexico, was convicted of reentering the U.S. after having been deported. He was arrested after a Gwinnett County, Georgia police officer found him in a parked car in possession of a firearm. He was charged and convicted of possessing a firearm as an illegal alien. He was also charged with reentry after deportation. Prior to his deportation he had a felony drug conviction that resulted in a substantial 16 level increase in his offense level. The Presentence Investigation Report calculated Jimenez’s offense level separately for each count of conviction and then determined the combined offense level under USSG §3D1.4 resulted in a higher offense level giving him a guideline range of 57 to 71 months. Jimenez objected, arguing that his guidelines range should have been calculated by grouping the two counts of conviction together. This would avoid the 2-level increase giving him a guideline range of 46 to 57 months.

The 11th Circuit held the district court correctly calculated the sentence of grouping the counts separately. Under section 3D1.2, the counts are grouped together if they “involve substantially the same harm.” The counts must show any of the following:

1. They involve the same victim and the same act or transaction 2. They involve the same victim and two or more acts or transaction that are connected by a common criminal objective or par of a common scheme or plan 3. One of the counts embodies conduct that is treated as a specific offense characteristic in the guidelines applicable to another of the counts 4. The offense level for each count is determined largely on the basis of the total amount of harm or loss.

Published on: May 31, 2012

Prior Florida conviction for a lewd assault qualified as a crime of violence under the sentencing guidelines enhancement for reentry after deportation

by The Swartz Law Firm

Again the 11th Circuit addressed a common sentencing issue facing Miami federal criminal courts as well as federal courts nationwide: whether a prior offense is considered a crime of violence under the sentencing guidelines. Defining a crime as a crime of violence will determine whether a defendant will receive an significantly enhanced sentence as a career offender or an armed career criminal. In U.S. v. Cortes-Salazar, the 11th Circuit addressed a recurring sentencing guidelines question facing federal criminal courts in Miami and around Florida: whether a prior offense is considered a crime of violence under the sentencing guidelines. How a crime of violence is defined can determine whether a defendant is sentenced as a career offender or as an armed career criminal and the sentence enhancement imposed is very significant. In this case, the definition of a crime of violence meant a significant enhancement for a defendant convicted of reentry after deportation. Here, Cortes-Salazar appealed his 57 month sentence for illegal reentry. His sentence had been enhanced 16 levels under the sentencing guidelines because the sentencing court determined that a prior Florida conviction for a lewd assault act was a crime of violence under the sentencing guidelines provision 2L1.2. In his challenge he claimed his prior conviction did not qualify as sexual abuse of a minor and, therefore, was not a crime of violence. The 11th Circuit disagreed and found it did qualify as a crime of violence for the following reasons.

Under the applicable sentencing guidelines provision 2L1.2, a prior conviction for a crime of violence requires a 16 level enhancement of a defendant’s offense level. The guidelines define a crime of violence to include among other offenses, the sexual abuse of a minor. The 11th Circuit decided in tow earlier cases that prior convictions for sexual abuse of a minor were found to be crimes of violence. In U.S. v. Padilla-Reyes the defendant was convicted of the same Florida offense of sexual abuse of a minor. At the time Padilla Reyes was decided, the guidelines enhanced the sentence for an aggravated felony, which included in its definition the crime of sexual abuse of a minor. The 11th Circuit applied Padilla Reyes to the amended version of the guidelines which enhance a reentry after deportation for having a crime of violence. In U.S. v. Ramirez-Garcia the 11th Circuit again held that the defendant’s prior conviction of “taking indecent liberties with a child” constituted “sexual abuse of a minor” and therefore fell under the guidelines definition of a crime of violence. The Ramirez-Garcia court rejected the defendant’s argument that the prior offense should be interpreted by its plain meaning and found it fell under the definition of a crime of violence.

Cortes-Salazar tried to persuade the 11th Circuit that under the analysis used by the Supreme Court’s decisions in Johnson v. U.S. and Begay v. U.S., the 11th Circuit was required to find this prior was not a crime of violence. Unfortunately, the Supreme Court decisions interpreted the definition of violent felonies under the Armed Career Criminal Act, which differed from the definition of crime of violence given in the the sentencing guidelines.

Published on: May 2, 2012

Padilla v. Kentucky is not retroactive for postconviction habeas relief

by The Swartz Law Firm

Deportation is always a common problem for alien criminal defendants in Miami and other parts of Florida who a convicted of a crime. In U.S. v. Figueroa-Sanchez, the 11th Circuit faced two issues: 1) whether the district court properly denied defendant’s 2255 motion for federal habeas post-conviction relief as successive, and 2) whether Padilla v. Kentucky, 130 S.Ct. 1473 (2010) announced a retroactively new rule of law. Deportation is always a problem for an alien defendant convicted of a crime. The Supreme Court’s decision in Padilla v. Kentucky offered habeas relief to defendants who were not advised of the deportation consequence prior to entering a plea. Figueroa-Sanchez was a citizen of the Dominican Republic who lived in the U.S. since 1972. After his drug trafficking conviction in April of 2004, he faced deportation. In July of 2008, he filed a pro se motion to vacate judgment pursuant to Rule 60(b) Federal Rules of Civil Procedure. The district court treated this motion as a §2255 motion, and then denied it as time barred because it was filed over one year after the judgment became final in 2004. Two years later, he filed a 2255 motion to vacate his conviction based on Padilla because his counsel failed to inform him of the risk of deportation before pleading guilty. The district court dismissed for lack of jurisdiction, noting that it had construed the July 2008 motion as a 2255 motion, and therefore the Padilla motion to vacate was successive.

The 11th Circuit decided it was not successive because the district court failed to give the defendant the warnings required by Castro v. United States 124 S.Ct. 786 (2003) when it recharacterized the defendant’s Rule 60(b) motion. Castro held that a district court must take the following steps to assure that the defendant is aware the motion is being recharacterized as a 2255 motion: 1) advise the litigant of the recharacterization; 2) warn the litigant he will be restricted in any subsequent 2255 motions, and 3) give the litigant an opportunity to withdraw the motion. Because the district court did not follow Castro, the 11th Circuit held that this motion could not be dismissed as successive.

Unfortunately for Figuero, the 11th Circuit held that Padilla could not retroactively apply as a basis for the defendant to vacate his conviction. Section 2255 grants an additional one year for petitioners to file a 2255 motion from the date on which the right asserted was initially recognized by the Supreme Court so long as the decision is retroactively applicable to cases on collateral review. The 11th Circuit held that Padilla was not retroactive. Though Padilla announced a new rule of constitutional law, it did not announce a watershed rule of criminal procedure nor did it alter any bedrock of criminal proceedings. Even if a defendant demonstrates constitutionally deficient representation under Padilla, a petitioner must still prove prejudice under Strickland v. Washington. “In order to show prejudice, a petitioner must show that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” The 11th Circuit found Figueroa-Sanchez cannot show prejudice required by Strickland.

Published on: April 25, 2012

Sentencing enhancements for prior conviction upheld in two illegal reentry decisions

by The Swartz Law Firm

In U.S. v Acuna-Reyna, the 11th Circuit held an uncounseled misdemeanor conviction resulting in probation and a fine would still be counted for criminal history points under the guidelines. The defendant was convicted of illegal reentry after deportation and at his sentencing he was assessed a criminal history point for a prior uncounseled misdemeanor conviction for driving under the influence. The defendant pled guilty to driving under the influence of alcohol, a misdemeanor, and was sentenced to 12 months probation and a fine of $940. Defendant argued that the uncounseled conviction was presumptively void and relied on Alabama v. Shelton to support his argument that the mere threat of incarceration in a future proceeding to revoke his probation entitled him to counsel.

In rejecting this argument, the 11th Circuit held that the prior conviction would still count because the court had imposed a fine. Even if the court disregarded the sentence of probation, the remaining portion of the sentence of the imposition of a fine was still a constitutionally valid and counted as a criminal history point.

In U.S. v Romo-Villalobos, the 11th Circuit held that a prior conviction for resisting arrest with violence will support a 16 level enhancement for reentry after deportation. The defendant appealed his 16 level enhancement for a prior Florida conviction for resisting an officer with violence. The defendant argued it was not a crime of violence because under Florida law, the element of violence can be satisfied by de minimus force. In considering whether a prior conviction is a qualifying offense for sentencing enhancement purposes, the 11th Circuit applies the categorical approach – the fact of the conviction and the statutory definition of the prior offense.

Published on: February 16, 2012

Sentencing enhancement upheld where defendant induced the Customs and Boarder Patrol to fire on his fleeing vessel

by The Swartz Law Firm

Defendant McQueen was convicted of attempted alien smuggling and failing to obey an order by federal saw enforcement to heave to the U.S. Customs and Boarder Patrol (CBP) vessel (18 U.S.C. 2237(a)(1). His sentence was enhanced by sentencing guidelines section 2L1.1(b)(5)(A) because a firearm was discharged by law enforcement in the course of the chase. In U.S. v Mcqueen the 11th Circuit Court of Appeals affirmed the sentencing enhancement.

McQueen’s boat was spotted by a CBP patrol plane heading west toward Palm Beach County, Florida. The boat matched the description of the Mary Carla, a 33-foot vessel suspected of smuggling aliens or drugs into the U.S. The CBP patrol boats attempted to interdict the Mary Carla about 11.8 nautical miles offshore by activating their blue lights, sirens, and spotlights, and commanded its operator to stop. The operator of the Mary Carla, McQueen, attempted to flee, turning east away from land and the CBP boats pursued him, firing illuminated warning shots, followed by the launching of four pepper balls into the boat’s cabin, and then more warning shots as McQueen continued to flee. The officers had to board the Mary Carla while it was still moving. Inside they found 14 aliens.

The enhancement applies if the discharge of the firearm was induced or willfully caused by the defendant. The issue was whether McQueen induced the CBP to discharge the firearm. Applying U.S. v. William where the court affirmed the application of the enhancement in a robbery context by concluding that the victim discharged his gun because he was induced by the defendant’s conduct. There the defendant attempted a carjacking by approaching a truck and pointing his gun inside. In response the occupant shot at Williams.

Published on: February 9, 2012

Conviction for illegal reentry was dismissed where the government was collaterally estopped from proving the defendant was alien non-citizen

by The Swartz Law Firm

In this unusual result, the 11th Circuit Court of Appeal reversed a conviction and dismissed the case because it found the government would be legally barred from proving a crucial element of the offense. The defendant in U.S. v Valdiviez-Garza

was convicted in the Middle District of Florida, Tampa Florida, of illegally entry by an alien who had been previously removed or deported, in violation section 1326(a). To convict of this offense, the government had to establish beyond a reasonable doubt that the defendant (1) was an alien at the time, (2) who had previously been removed or deported, (3) and had reentered the U.S. after removal; (4) without having received the express consent of the Attorney General. The defendant claimed the government was collaterally estopped in this case from presenting evidence and litigating the defendant’s alienage because of a prior acquittal.

An element of the offense required proof the defendant was an alien at the time of the offense. The defendant had previously been charged following a prior reentry incident, and he was tried and acquitted. In the earlier criminal trial, the defendant disputed the government’s claim that the defendant was an alien with proof he derived his citizenship through his father. The defendant was acquitted. Because the alienage issue was disputed at the prior trial and the jury acquitted, the 11th Circuit found there was reasonable doubt that the defendant was an alien and the government was collaterally estopped in this case from arguing the defendant is an alien. Under the collateral estoppel doctrine, when an issued of fact has been determined by a final judgment, the issue cannot be litigated again between the same parties in any future lawsuit. To determine whether collateral estoppel applies in a criminal proceeding, first the court must ascertain what facts were necessarily determined during the acquittal at the first trial. Second, the court must decide whether the facts determined as part of the prior acquittal are an essential element of the offense charged in the subsequent proceeding.

Published on: December 7, 2011

An aggravated felony enhancement upheld for a prior conviction of possessing a forged document

by The Swartz Law Firm

In U.S. v. Martinez-Gonzalez, the defendant appealed the 24 month sentence he received for illegal reentry into the U.S. after having been deported. What led to his deportation was his felony conviction in Alabama for possession of forged instruments – a forged permanent resident card and a forged Social Security card. Following his deportation to Mexico, he entered the U.S. illegally. He then pled guilty to entering the U.S. without permission, in violation of 8 U.S.C. 1326(a).

Under the sentencing guidelines calculation for his offense, he receives an 8 level bump in his offense level if the prior felony conviction is considered an aggravated felony. The definition of aggravated felony (8 U.S.C. §11011(a)(43)) includes an offense “relating to forgery” The main issue raised here was whether Martinez-Gonzalez’ prior conviction for possession of the forged documents was a conviction relating forgery.

Martinez-Gonzalez argued that merely possessing a forged document does not amount to committing a crime relating forgery. He also argued that §11011(a)(43) is ambiguous requiring the application of the rule of lenity to be construed in his favor. The 11th Circuit did not buy in – mainly because four other Circuit Courts have upheld the 8 level increase for possession of false documents, and Martinez-Gonzalez could not cite any cases supporting his position.

Published on: November 3, 2011

Conviction for Smuggling Cuban baseball players into the U.S. upheld but convictions for transporting and harboring players reversed for insufficient evidence

by The Swartz Law Firm

A professional sports agent, the defendant in U.S. v. Dominguez was charged and convicted of smuggling 5 Cuban baseball players to the United States, transporting them from Miami to Los Angeles, and then harboring them there until they applied for asylum. Dominguez represented over 100 baseball players, many of whom played for Major League Baseball teams. Some of his clients were Cuban nationals who arrived without official documentation in the United States. According to the government’s theory, he planned to represent them in their baseball contract negotiations and collect a percentage of their earnings.

For his defense, Dominguez invoked the U.S. law known as the Cuban Adjustment Act (CAA) which gives special treatment to Cuban nationals who come to the U.S. and allows Cuban nationals who have no documentation authorizing their presence in the U.S. to remain here without having to prove they are the victim of persecution. The CAA is enforced through the “Wet Foot/ Dry-Foot” policy, which offers the benefits of the CAA to those Cuban nationals who reach U.S. soil (dry feet) while Cubans who are interdicted at sea (wet feet) are repatriated and can not benefit.

Dominguez arranged with his cohort, Medina, to smuggle 5 Cuban baseball players into the U.S., agreeing to give Medina 5% of any Major League Baseball contract the players might sign. The five players were successfully brought in through the Florida Keys. The players were transported to Los Angles where they met with Dominguez and signed agency contracts that included clauses obligating them to pay Medina a percentage of their baseball earnings. Shortly after their arrival, Dominguez arranged for an immigration attorney to process the players through immigration to apply for asylum and parole.