United States v. Roberto Bustos-Ochoa
2012 U.S. App. LEXIS 25760
| 9th Cir. | 2012Background
- Bustos-Ochoa is a Mexican citizen who entered the U.S. in 2002 without admission or parole.
- Prior to removal, Bustos-Ochoa had a California felony drug conviction (possession for sale of methamphetamine).
- An IJ questioned Bustos-Ochoa; after government revealed the drug charge, the IJ said he could not receive voluntary departure.
- The IJ entered a removal order and Bustos-Ochoa was deported to Mexico in 2003; the government never introduced the charging document or plea into evidence.
- In 2010 Bustos-Ochoa attempted to reenter using a false ID and was charged with illegal reentry under 8 U.S.C. § 1326 and with using a document bearing another’s name under 18 U.S.C. § 1546(a).
- Bustos-Ochoa moved to dismiss arguing fundamental unfairness in 2003 removal due to lack of advice about relief; the district court denied and allowed government documents to establish aggravated felon status for prejudice analysis.
- He was convicted on both counts after a stipulated-facts trial and appealed challenging the district court’s ruling and his sentence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| whether a collateral attack on removal is available | Bustos-Ochoa could show prejudice due to lack of relief grounds. | Bustos-Ochoa cannot show prejudice where relief was statutorily unavailable. | No; failure to advise about ineligible relief cannot prejudice an aggravated felon. |
| whether the removal order was fundamentally unfair | Potential relief would have been plausible if not for ineligibility. | Relief plausibility cannot be shown when eligibility is barred by aggravated felony status. | Fundamentally unfair not shown; aggravating status bars relief. |
| whether Apprendi/Almendarez-Torres controls sentencing | Maximum sentence should be 2 years; prior aggravated felony not proven. | Almendarez-Torres controls; prior aggravated felony can be used for enhanced sentence. | Sentence valid under Almendarez-Torres. |
Key Cases Cited
- United States v. Reyes-Bonilla, 671 F.3d 1036 (9th Cir. 2012) (limits collateral attack to properly exhausted, fair proceedings and prejudice)
- United States v. Arias-Ordonez, 597 F.3d 972 (9th Cir. 2010) (defines fundamental unfairness in removal proceedings)
- United States v. Esparza-Ponce, 193 F.3d 1133 (9th Cir. 1999) (plausibility standard for relief prejudice)
- United States v. Cerda-Pena, 799 F.2d 1374 (9th Cir. 1986) (prejudice requires plausible grounds for relief)
- United States v. Gonzalez-Valerio, 342 F.3d 1051 (9th Cir. 2003) (statutory bar to relief defeats prejudice)
- Almendarez-Torres v. United States, 523 U.S. 224 (1998) (Almendarez-Torres rule on sentence enhancements)
- Leyva-Martinez, 632 F.3d 568 (9th Cir. 2011) (per curiam reaffirming Almendarez-Torres)