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United States v. Chavez-Cuevas

United States Court of Appeals, Ninth Circuit

July 10, 2017

UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
JOSE MARIA CHAVEZ-CUEVAS, Defendant-Appellant.

          Argued and Submitted December 6, 2016

         Appeal from the United States District Court for the Southern District of California Roger T. Benitez, District Judge, Presiding D.C. No. 3:15-cr-01338-BEN-1

          Before: Consuelo M. Callahan, Carlos T. Bea, and Sandra S. Ikuta, Circuit Judges.

          OPINION

          Bea, Circuit Judge

         Jose Maria Chavez-Cuevas, a Mexican citizen, entered the United States illegally several decades ago. Once here, he engaged in illegal drug use and other crimes. He was convicted of robbery in California in 2003. He served four years in prison. He was then deported to Mexico.

         About a week after this first deportation, he was found by federal agents to be unlawfully in the United States. He was convicted on federal charges of having illegally reentered the country without authorization and served four more years in prison. After this second prison term, he was again removed from the United States by immigration authorities in 2010 and lived in Tijuana for the next five years. Chavez-Cuevas claims that upon learning his mother (who lived in Los Angeles) was suffering from serious heart problems, he again illegally entered the United States to attempt to visit her briefly. He was again detained by federal immigration authorities.

         Upon being again charged with being a removed person found unlawfully in the United States (in violation of 8 U.S.C. § 1326), he stated his intention to plead guilty. He engaged in a plea colloquy with a magistrate judge, who recommended the district court judge accept his guilty plea. The district court judge held a sentencing hearing, but neither expressly accepted nor rejected his guilty plea; nonetheless, that judge did sentence him to 57 months of prison. In so doing, the district court applied a 16-level sentencing enhancement pursuant to the Sentencing Guidelines on the basis of Ninth Circuit precedent that found robbery under California Penal Code § 211 (of which Chavez-Cuevas was convicted in 2003) to be categorically a crime of violence.

         On appeal, Chavez-Cuevas asserts that the district court erred in sentencing him at all without first adjudicating his guilt and further erred in applying a 16-level crime of violence sentencing enhancement in light of recent Supreme Court precedent purportedly in conflict with the Ninth Circuit precedent on which the district court relied. We have jurisdiction under 28 U.S.C. § 1291 and affirm.

         I.

         Jose Maria Chavez-Cuevas was born to a poor family in Michoacán, Mexico. According to him, his father died when he was twelve and his mother later remarried and moved to the United States. By the age of nineteen, he had married and had children. Given his poor prospects in Mexico, he decided to follow his mother with his family to the United States. He worked for a time in construction but began using cocaine, which developed into repeated drug use and involvement in crime. He was convicted of selling marijuana and later of three misdemeanors. He then committed a robbery in California in 2003, for which he served four years in prison, and was later removed by immigration authorities from the United States. Roughly a week after such removal, he attempted to return illegally to the United States; he was caught, convicted, and sentenced to 48 months of prison. After serving this sentence, he was again removed to Mexico in 2010 where he lived until 2015 working as a waiter and later a valet parking attendant at Angeles hospital in Tijuana. Early in 2015, Chavez-Cuevas claims to have learned that his mother, who he had not seen in a decade, was suffering from worsening heart problems. This information ostensibly motivated Chavez-Cuevas to reenter the United States - after being refused a humanitarian visa - only to visit his sick mother before returning to his life, job, and friends in Tijuana. He crossed the border near Tecate where border patrol agents found him hiding in some brush.

         The United States Attorney filed an information with the district court for the Southern District of California charging Chavez-Cuevas with a violation of 8 U.S.C. § 1326, which makes it a felony for an alien who had previously been removed to be again in the United States unlawfully.

         Chavez-Cuevas then appeared before a United States magistrate judge for a "change of plea hearing." The hearing occurred because Chavez-Cuevas "signed a written consent form giving up [his] right to enter a guilty plea before the District Judge who will sentence [him]." The magistrate judge explained to Chavez-Cuevas his constitutional rights, the elements of § 1326 that the prosecution would need to prove were he not to plead guilty, and the possible penalties were he convicted of this offense, all of which admonishments Chavez-Cuevas stated he understood. The magistrate judge also investigated and accepted the factual basis for Chavez-Cuevas's guilty plea. Chavez-Cuevas then pled "guilty" to "[c]ount 1 of the information." The magistrate judge concluded (after taking pleas from a group of defendants including Chavez-Cuevas) that "[t]his Court find[s] that the Defendants' pleas are made knowingly and voluntarily, with a full understanding of the nature of the charge, their rights, and the consequences of their pleas, and that there is a factual basis for each of the pleas. I'll therefore recommend to your assigned district judges that they accept the pleas which you've made before me this morning….For Mr. Chavez, the sentencing with a pre-sentence report will be on November 2nd, 9:00 a.m. before Judge Benitez." The magistrate judge filed a "Findings and Recommendation" that confirmed in writing the above-discussed factual findings and her oral recommendation that the district court accept Chavez-Cuevas's plea.

         The United States Attorney filed a Sentencing Summary Chart and Government Motion under the United States Sentencing Guidelines, in which the government recommended 60 months of incarceration, to be followed by 3 years of supervised release. This recommendation was based on a pre-sentence report which determined Chavez-Cuevas should receive a 16-level crime of violence enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(ii) (the Sentencing Guidelines) for his 2003 California robbery conviction. Chavez-Cuevas also submitted a Sentencing Summary Chart on October 27, 2015 recommending only 30 months of imprisonment.

         At his sentencing hearing, Chavez-Cuevas argued that he should receive a sentence lower than the guideline range because for five years he had established a job and life in Tijuana to which he intended to return and because he tried to cross the border only to visit his ailing mother. Chavez-Cuevas also sought to preserve for appeal the issue whether robbery is categorically a crime of violence under the Sentencing Guidelines in light of the Supreme Court's decision in Descamps v. United States, 133 S.Ct. 2276 (2013). The district court declined to analyze whether robbery was a crime of violence under the Sentencing Guidelines, concluding that the Ninth Circuit's decision in United States v. Becerril-Lopez, 541 F.3d 881 (9th Cir. 2008), foreclosed such issue.

         At the hearing before the district court, Chavez-Cuevas also personally addressed the district judge, emphasizing that he tried and failed to obtain a humanitarian visa from the consulate in Tijuana to visit his mother before he attempted to cross the border. In response, the district court mentioned Chavez-Cuevas's earlier conviction for a violent robbery in which he harmed the victim with a knife in her own home. It also noted that attempting to reenter the United States after being twice removed was not a "mistake." In spite of this, the district court decided to impose a sentence of 57 months, which was the minimum of the guideline range proposed by the government, and 3 years of supervised release (to be waived in the case of deportation, exclusion, or voluntarily departure).

         In closing, the district court asked: "Anything I've missed? Anything that we should cover?" Chavez-Cuevas's counsel requested appellant be incarcerated in the western region of the country, which the district court agreed to recommend. The ...


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