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United States v. Guillen-Cervantes

United States Court of Appeals, Ninth Circuit

March 28, 2014

UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
RUPERTO GUILLEN-CERVANTES, Defendant-Appellant. UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
BETTY CASTILLO, Defendant-Appellant

Argued and Submitted as to 12-10255; January 13, 2014.

Submitted January 13, 2014, as to 12-10279 [*]

Page 871

Appeals from the United States District Court for the District of Arizona. D.C. No. 4:10-cr-00753-CKJ-JJM-5. D.C. No. 4:10-cr-00753-CKJ-JJM-6. Cindy K. Jorgenson, District Judge, Presiding.

Joshua F. Hamilton (argued) and Clay Hernandez, Law Offices of Hernandez & Robles, P.C., Tucson, Arizona, for Defendant-Appellant Guillen-Cervantes.

Adrian G. Hall, Law Office of Adrian G. Hall, Tucson, Arizona, for Defendant-Appellant Castillo.

Bruce M. Ferg (argued), Assistant United States Attorney; Robert L. Miskell, Appellate Chief; John S. Leonardo, United States Attorney, District of Arizona, Tucson, Arizona, for Plaintiff-Appellee.

Before: Susan P. Graber and Jacqueline H. Nguyen, Circuit Judges, and Raymond J. Dearie, Senior District Judge.[**] Opinion by Judge Nguyen.

OPINION

Page 872

NGUYEN, Circuit Judge:

In connection with activities performed as part of an alien smuggling organization operating out of Tucson, Arizona, Ruperto Guillen-Cervantes and Betty Castillo were convicted of conspiring to transport and harbor illegal aliens, in violation of 8 U.S.C. § 1324(a)(1). They each received a term of imprisonment and a forfeiture judgment--thirty-seven months and $229,000 for Guillen-Cervantes, and thirty-seven months and $290,000 for Castillo. Castillo challenges her forfeiture judgment on appeal, contending that it violates her due process rights under the Fifth Amendment because she is unable to seek contribution from other members of the conspiracy.[1] We review de novo a Fifth Amendment due process challenge to the constitutionality of a criminal sentence. United States v. Garcia-Guizar, 234 F.3d 483, 489 n.2 (9th Cir. 2000). We affirm Castillo's forfeiture judgment.

I.

To state a prima facie substantive or procedural due process claim, one must, as a threshold matter, identify a liberty or property interest protected by the Constitution. See Wedges/Ledges of Cal., Inc. v. City of Phoenix, 24 F.3d 56, 62 (9th Cir. 1994). The Constitution itself creates no property interests; rather, such interests " are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law." Town of Castle Rock v. Gonzales, 545 U.S. 748, 756, 125 S.Ct. 2796, 162 L.Ed.2d 658 (2005) (quoting Paul v. Davis, 424 U.S. 693, 709, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976)) (internal quotation mark omitted). A constitutionally cognizable property interest in a benefit requires more than " an abstract need or desire" or a " unilateral expectation of it" --rather, there must be " a legitimate claim of entitlement." Id. (quoting Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972)). This typically requires an individual to demonstrate ...


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