MURPHY, Circuit Judge.
Claro Rivera-Nevarez was charged in United States District Court for the District of Kansas with illegal reentry into the United States after removal, in violation of 8 U.S.C. § 1326(a) and (b)(1). Rivera-Nevarez moved to dismiss the indictment on the ground that subsequent Board of Immigration Appeals ("BIA") and Tenth Circuit precedent rendered invalid the 1999 removal order on which the illegal reentry charge was based. The district court denied the motion, and Rivera-Nevarez then pleaded guilty with a reservation of his right to appeal. This court has jurisdiction pursuant to 28 U.S.C. § 1291. Because Rivera-Nevarez fails to demonstrate that he fulfills the prerequisites for a collateral challenge to his 1999 removal order, this court
Rivera-Nevarez, a citizen of Mexico, was convicted of felony driving under the influence ("DUI") in Texas in 1997. As a direct result, he was removed from the United States in February 1999.
Charged with unlawful reentry into the United States after removal under 8 U.S.C. § 1326(a) and (b)(1), Rivera-Nevarez moved to dismiss the indictment. He argued that subsequent interpretations by the Tenth Circuit in United States v. Lucio-Lucio, 347 F.3d 1202, 1204-06 (10th Cir.2003), and the BIA in In Re Ramos, 23 I. & N. Dec. 336, 347, 2002 WL 1001049 (BIA 2002) (en banc), established that drunk driving was not a "crime of violence" or "aggravated felony" under the INA, and that his 1999 removal on that basis was therefore invalid. The district court denied the motion, writing that "[r]etroactivity of judicial rulings is a complicated subject which defendant has not addressed in any fashion." The court concluded that Rivera-Nevarez's "deportation was valid under then-existing law as interpreted by the Board of Immigration Appeals and . . . the Tenth Circuit."
In his motion for reconsideration of that ruling, Rivera-Nevarez argued that under the Supreme Court's holding in United States v. Mendoza-Lopez a defendant being criminally prosecuted under 8 U.S.C. § 1326 could collaterally attack the prior removal order if the removal hearing was fundamentally unfair and the defendant was denied the right to appeal. 481 U.S. 828, 841-42, 107 S.Ct. 2148, 95 L.Ed.2d 772 (1987). He further argued, for the first time, that he satisfied the prerequisites for a collateral attack on his removal order established by 8 U.S.C. § 1326(d), because the BIA's decision in Magallanes-Garcia and the general legal climate at the time of his removal hearing in 1999 rendered any attempt to appeal the removal order futile. In a second written order, the district court responded that "a motion for reconsideration does not provide an occasion to reargue the original motion or to present additional arguments which could have been submitted with it." The court therefore "decline[d] to reconsider its order."
Rivera-Nevarez subsequently entered into a plea agreement with the government, which allowed him to plead guilty to the offense and reserve the right to appeal "those issues raised in his Motion to Dismiss and Motion to Reconsider." The district court accepted the conditional guilty plea and sentenced Rivera-Nevarez to 21 months' imprisonment. This appeal ensued.
A. Retroactive Applicability of
Lucio-Lucio and Leocal
In denying Rivera-Nevarez's motion to dismiss the indictment, the district court concluded that the BIA's decision in Ramos and this court's decision in Lucio-Lucio were not retroactively applicable and that the removal was therefore valid at the time it occurred. Subsequently, the Supreme Court's decision in Leocal has conclusively established that DUI is not a "crime of violence" under the INA. 125 S.Ct. at 383. Because Leocal involves a question of statutory construction, its holding is retroactively applicable to the time of Rivera-Nevarez's removal hearing. Decisions of statutory interpretation are fully retroactive because they do not change the law, but rather explain what the law has always meant. See Rivers v. Roadway Express Inc., 511 U.S. 298, 312-13, 114 S.Ct. 1510, 128 L.Ed.2d 274 (1994) ("A judicial construction of a statute is an authoritative statement of what the statute meant before as well as after the decision of the case giving rise to that construction."). For this reason, Leocal provides the correct interpretation of the law as it stood in 1999 when Rivera-Nevarez was deported. See United States v. Shelton, 848 F.2d 1485, 1489-90 (10th Cir.1988) (en banc). The district court's conclusion that Rivera-Nevarez's removal was valid at the time it occurred was therefore in error.
B. Section 1326(d) and Collateral Review of the Removal Order
Although the district court erred in its conclusion that the rule announced in Ramos and Lucio-Lucio was not retroactively applicable to the removal proceeding, Rivera-Nevarez nevertheless cannot collaterally challenge his removal unless he can establish that he meets the statutory prerequisites for a collateral attack set forth in 8 U.S.C. § 1326(d). See United States v. Wittgenstein, 163 F.3d 1164, 1170 (10th Cir.1998). Because Rivera-Nevarez fails to demonstrate that the statutory requirements for a collateral attack are satisfied, this court concludes that he cannot challenge his removal in this criminal prosecution. The district court's error was therefore harmless.
Section 1326 criminalizes reentry into the United States after removal without obtaining advance consent from the Attorney General. 8 U.S.C. § 1326(a). The language of the statute as originally enacted included no exception for cases in which the original removal order was unlawful. See Mendoza-Lopez, 481 U.S. at 835, 107 S.Ct. 2148. The statute provided simply that any alien who "has been . . . deported" will be guilty of a felony if the alien
In Mendoza-Lopez, however, the Supreme Court held that when an administrative removal proceeding plays a critical role in the subsequent imposition of a criminal sanction, the proceeding must be conducted in accordance with due process and "there must be some meaningful review of the administrative proceeding." Id. at 837-838, 107 S.Ct. 2148; see also United States v. Aguirre-Tello, 353 F.3d 1199, 1204 (10th Cir.2004) (en banc). Mendoza-Lopez distinguished the Court's earlier opinion in Lewis v. United States, in which the Court held that Congress could define the "class of persons who should be disabled from dealing in or possessing firearms" by reference to prior state felony convictions, even if those convictions had been obtained in proceedings where the defendant was deprived of counsel in violation of the Sixth Amendment. Lewis, 445 U.S. 55, 67-68, 100 S.Ct. 915, 63 L.Ed.2d 198 (1980). The Court in Lewis noted that convicted felons had access to procedures by which they could judicially challenge the validity of their convictions prior to obtaining firearms. Id. at 67, 100 S.Ct. 915. In contrast, the Court in Mendoza-Lopez concluded that the defendant was deprived of the opportunity to judicially challenge the deportation order because he was not adequately informed of his right to appeal. Mendoza-Lopez, 481 U.S. at 839-40, 107 S.Ct. 2148. The Court wrote that "[i]t is precisely the unavailability of effective judicial review of the administrative determination at issue here that sets this case apart from Lewis." Id. at 841, 107 S.Ct. 2148.
In response to Mendoza-Lopez, Congress enacted § 1326(d), which establishes three requirements that an alien must satisfy in order to collaterally challenge a removal proceeding as a defense to a criminal prosecution for illegal reentry. See United States v. Sandoval, 390 F.3d 1294, 1298-99 & 1299 n. 3 (10th Cir.2004). Section 1326(d) requires the alien to demonstrate that:
8 U.S.C. § 1326(d). This court has held that § 1326(d) comports with the constitutional standard for due process set forth in Mendoza-Lopez. Wittgenstein, 163 F.3d at 1170.
Under both § 1326(d) and Mendoza-Lopez, a criminal defendant challenging a prior removal order must show not only that the removal proceeding was fundamentally unfair, but also that the defendant was improperly deprived of the opportunity for judicial review. 8 U.S.C. § 1326(d)(2)-(3); Mendoza-Lopez, 481 U.S. at 838, 107 S.Ct. 2148 ("[W]here the defects in an administrative proceeding foreclose judicial review of that proceeding, an alternative means of obtaining judicial review must be made available before the administrative order may be used to establish conclusively an element of a criminal offense."); Wittgenstein, 163 F.3d at 1170 ("A defendant may collaterally challenge a deportation hearing in a 8 U.S.C. § 1326 prosecution if the defendant can show that the deportation hearing was fundamentally unfair and deprived the alien to the right of judicial review." (quotation omitted)); see also Aguirre-Tello, 353 F.3d at 1204. As this court wrote in
Assuming, without deciding, that Rivera-Nevarez can demonstrate that his removal proceeding was fundamentally unfair and that he properly exhausted any administrative remedies, he nevertheless fails to meet his burden under § 1326(d)(2) to show that he was deprived of the opportunity for judicial review. The prior removal proceeding is afforded a presumption of regularity, and the defendant has the burden of showing that he was deprived of his right to appeal. Aguirre-Tello, 353 F.3d at 1204. Rivera-Nevarez notes that, at the time of his removal hearing, jurisdiction-stripping provisions in IIRIRA precluded direct appeal of "any final order of removal against an alien who is removable by reason of having committed a criminal offense [including an aggravated felony]." 8 U.S.C. § 1252(a)(2)(C). Because § 1252(a)(2)(C), as applied under the law as it stood in 1999, appeared to preclude any right to appellate review of the removal order, Rivera-Nevarez argues that the requirement of § 1326(d)(2) is satisfied.
Although Rivera-Nevarez is correct that § 1252(a)(2)(C) precluded appellate review of removal orders based on an alien's commission of a crime of violence, it did not preclude courts from reviewing the threshold question of which particular crimes constitute crimes of violence under the INA. The Fifth Circuit, from which Rivera-Nevarez was removed, held in February 2000 that although IIRIRA stripped federal courts of jurisdiction for direct review, the courts retain jurisdiction to determine whether the specific conditions that bar jurisdiction exist. Max-George v. Reno, 205 F.3d 194, 199 (5th Cir.2000), vacated on other grounds sub nom. Max-George v. Ashcroft, 533 U.S. 945, 121 S.Ct. 2585, 150 L.Ed.2d 746 (2001).
Max-George had not been decided at the time of Rivera-Nevarez's removal hearing in 1999, but the Fifth Circuit at that time had construed the INA's very similar transitional jurisdiction-stripping provision, 8 U.S.C. § 1105a(10), in the same manner. Okoro v. INS, 125 F.3d 920, 925 & n. 10 (5th Cir.1997).
The precise question of whether DUI constituted a crime of violence and therefore an aggravated felony under the INA had not yet been decided by the Fifth Circuit at the time of Rivera-Nevarez's removal hearing. Several circuits, however, had suggested in dicta that DUI was not a crime of violence. See United States v. Parson, 955 F.2d 858, 864-66 (3d Cir.1992) (contrasting the definition of "crime of violence" under 18 U.S.C. § 16, the definition at issue here, with the relatively broader definition of the phrase under the United States Sentencing Guidelines); see also United States v. Rutherford, 54 F.3d 370, 372-74, 374 n. 11, 377 (7th Cir.1995); United States v. Doe, 960 F.2d 221, 225 (1st Cir.1992). In March 2001 the Fifth Circuit ultimately agreed that the Texas felony DUI offense was not a crime of violence for purposes of the INA. Chapa-Garza, 243 F.3d at 926-27; accord Leocal, 125 S.Ct. at 383.
Rivera-Nevarez also briefly contends, without citation to the record, that he was not informed at the removal proceeding of his right to "relief." Presuming that by the term "relief" he means judicial review, this argument fails to satisfy Rivera-Nevarez's burden under § 1326(d)(2). Attached to Rivera-Nevarez's brief is a copy of a "Notice to Appear" signed by Rivera-Nevarez and notifying him of his right to appeal an adverse decision by the immigration judge. Also attached is an order by the immigration judge noting that appeal
Because Rivera-Neverez has failed to demonstrate that he satisfied the requirements of § 1326(d) by showing that he was deprived of the opportunity for direct review of his removal order, collateral review of the order in this criminal prosecution is precluded. See Aranda-Hernandez, 95 F.3d at 981 (holding that this court will not collaterally review error in a removal hearing when an alien has waived direct review of the error in the court of appeals). The district court's error in denying the motion to dismiss was therefore harmless.
C. Rule 11(a)(2)
The dissent reads Federal Rule of Criminal Procedure 11(a)(2) to mandate a per se rule of reversal for cases where a district court, while reaching the correct result, relies on erroneous reasoning in deciding an issue reserved for appeal as part of a conditional plea agreement.
As an initial matter, the dissent is wrong in its view that the terms of the plea agreement itself restrict this court from considering the requirements of § 1326(d). Rivera-Nevarez reserved the right "to appeal . . . those issues raised in his Motion to Dismiss and Motion to Reconsider." Although Rivera-Nevarez did not discuss § 1326(d) in his initial motion to dismiss, he did address the requirements of the statute in his motion to reconsider, which was expressly included among the issues reserved for appeal in his plea agreement. Furthermore, both Rivera-Nevarez and the government verified that § 1326(d) issues were reserved for appeal by presenting extensive arguments thereon in their respective appellate briefs. In this context, the dissent's citation to the statement of issues in Rivera-Nevarez's brief is not a persuasive basis upon which to limit this
In spite of the language in the plea agreement indicating that § 1326(d) was at issue on appeal, the dissent would nevertheless refuse to consider the issue because the district court resolved the case on other grounds.
The dissent's extraordinary interpretation of Rule 11(a)(2) is unprecedented in the history of this court. It is a fundamental and long-accepted feature of appellate review that a court of appeals may "affirm the rulings of the lower court on any ground that finds support in the record, even where the lower court reached its conclusions from a different or even erroneous course of reasoning." Keyes v. Sch. Dist. No. 1, Denver, Colo., 521 F.2d 465, 472-73 (10th Cir.1975). As early as 1937, this rule was considered "inveterate and certain." Morley Constr. Co. v. Md. Cas. Co., 300 U.S. 185, 191, 57 S.Ct. 325, 81 L.Ed. 593 (1937); see Jaffke v. Dunham, 352 U.S. 280, 77 S.Ct. 307, 308-09, 1 L.Ed.2d 314 (1957); United States v. Am. Ry. Express Co., 265 U.S. 425, 435, 44 S.Ct. 560, 68 L.Ed. 1087 (1924). This historical principle is supported by the consistent practice of this court, even in cases appealed in accordance with Rule 11(a)(2). See, e.g., United States v. Cusumano, 83 F.3d 1247, 1248, 1249-50 (10th Cir.1996) (en banc) (affirming the denial of a suppression motion in a Rule 11(a)(2) appeal on grounds other than those relied on by the district court). In light of this court's long-established views, it is not surprising that the dissent cites no authority in support
Even if the dissent were correct that this court could not resolve the case on any grounds not decided by the district court, the fault for the district court's failure to address the § 1326(d) issue lies entirely with Rivera-Nevarez. The only reason the district court did not reach the question was because it was never raised in Rivera-Nevarez's motion to dismiss. The district court, in the absence of argument on the permissibility of a collateral attack, understandably focused solely on Rivera-Nevarez's assertion that Lucio-Lucio should be applied retroactively to the removal hearing. The irony of the dissent's approach is that, having neglected to argue an essential prerequisite to his collateral attack on the removal order, Rivera-Nevarez would now be rewarded for the district court's failure to rule on the issue. We cannot accept such a result.
For the foregoing reasons, Rivera-Nevarez's conviction is
LUCERO, Circuit Judge, dissenting.
Because the majority fails to respect Federal Rule of Criminal Procedure 11(a)(2) and misapplies the harmless error doctrine, I respectfully dissent.
In 1999, Rivera-Nevarez, a seventeen-year legal permanent resident, was removed from the United States based on a drunk driving conviction two years earlier. In October 2003, Rivera-Nevarez returned to the United States, was apprehended, and was charged with illegal reentry. Two weeks after his apprehension, our circuit handed down its decision in United States v. Lucio-Lucio, 347 F.3d 1202 (10th Cir.2003), ruling that drunk driving is not a "crime of violence" or an "aggravated felony." In support of the motion to dismiss, the defendant relied on Lucio-Lucio to collaterally attack the use of his 1999 removal to establish an element in his illegal reentry prosecution. Rivera-Nevarez claimed that his removal was fundamentally unfair because Lucio-Lucio applied retroactively, invalidating his 1999 removal. The district court denied the motion, ruling that Lucio-Lucio did not apply retroactively.
Pursuant to Federal Rule of Criminal Procedure 11(a)(2), the conditional guilty plea entered by Rivera-Nevarez "reserve[d] the right, to the extent he has such a right, to appeal to the 10th Circuit Court of Appeals those issues raised in his Motion to Dismiss and Motion to Reconsider." (R. Doc. 18 at 1.) Federal Rule of Criminal Procedure 11(a)(2) provides:
(emphasis added). In his motion to dismiss, the defendant moved the court "to enter an order dismissing the one count indictment in this case as the government cannot proceed due to a change in the interpretation of a law in effect at the time of the underlying deportation in this case." (R. Doc. 9 at 1.) In support of the motion the defendant quoted our circuit speaking in Lucio-Lucio, as follows: "We agree with our sister circuits and the BIA that to call DWI a crime of violence would stretch the § 16(b) definition too far." (R. Doc. 9 at 2.) The trial court's decision denying the motion to dismiss was based solely on its determination that Lucio-Lucio did not apply retroactively — the only "issue" raised in Rivera-Nevarez's motion to dismiss. That "adverse determination" in the motion to dismiss was preserved for appeal under Rule 11(a)(2).
Nine months after the trial court's acceptance of the conditional plea, and while this appeal was pending, the Supreme Court decided Leocal v. Ashcroft, ___ U.S. ___, 125 S.Ct. 377, 160 L.Ed.2d 271 (2004). As recognized by the majority, "the Supreme Court's decision in Leocal . . . conclusively established that DUI is not a `crime of violence' under the INA." Slip op. However, after recognizing that the district court's conclusion that Rivera-Nevarez's removal was valid at the time it occurred was error, slip op., the majority concludes that error was harmless and affirms
Given the majority's conclusion that the district court erred in its determination on the issue of retroactivity raised in Rivera-Nevarez's motion to dismiss, a condition of the plea agreement has been met, and under Fed.R.Crim.P. 11(a)(2), "a defendant who prevails on appeal may then withdraw the plea." As far as I am concerned, the defendant has presented an open and shut case under Rule 11, that rule should be respected and followed, the case should be remanded, and that should end the case at this level.
By resorting to harmless error review and by proposing to affirm the defendant's conviction notwithstanding Rivera-Nevaraz's right to withdraw his conditional plea, the majority fails to recognize that once the plea of guilty is withdrawn, there is no acceptance of guilt by plea, let alone a conviction that justifies such a decision. Because Rivera-Nevarez may withdraw his plea, the defendant does not stand convicted before us. By seeking to decide this case on these grounds the wrong court proposes to convict the defendant, without benefit of a trial before a trial judge or a jury.
The majority predicates its determination of harmlessness solely on its conclusion that Rivera-Nevarez "fails to meet his burden under § 1326(d)(2) to show that he was deprived of the opportunity for judicial review."
18 U.S.C. § 16.
The dissent's citation to United States v. Mejia, 69 F.3d 309 (9th Cir.1995), misses the mark for the same reason. Mejia noted only that when a defendant appeals the district court's denial of two separate suppression orders, reversal of either one of the orders warrants a withdrawal of the plea agreement if the denial of that order prejudiced the defendant. Id. at 316 n. 8. The other case cited by the dissent, United States v. Tantalo, involved a similar situation in which the district court reached an erroneous and prejudicial result on one of two issues appealed. 680 F.2d 903, 911 (2d Cir.1982). Neither of these cases have anything to say about whether a court of appeals can affirm a district court on alternate grounds when the district court's ultimate decision is correct.
(Appellant's Br. at 1.) (emphasis added). At oral argument, Rivera-Nevarez requested that should we agree with defendant on his retroactivity analysis, we remand the case to the trial court.
Second, because Rivera-Nevarez facially waived his right to administrative review, the majority concludes that he knowingly and intelligently waived his right to judicial review under United States v. Arevalo-Tavares, 210 F.3d 1198, 1200-1201 (10th Cir.2000). Only a knowing and intelligent waiver of administrative appeal would validly waive the contingent right to judicial review. See, e.g., Mendoza-Lopez, 481 U.S. at 840, 107 S.Ct. 2148; Sosa, 387 F.3d at 136; United States v. Lopez-Vasquez, 1 F.3d 751, 753-54 (9th Cir.1993) (en banc) (recognizing same rule on due process grounds). The deportation proceeding in Arevalo-Tavares occurred in 1991 when criminal aliens had a statutory right to judicial review of their removal orders, as opposed to Rivera-Nevarez's 1999 removal proceeding which occurred when the statute unambiguously eliminated such a right. Indulging the presumption that an IJ would appropriately inform an alien of the right to judicial appeal is far more supportable in 1991, when criminal aliens had a statutory right to judicial review of their removal orders, than in 1999 during a period when the BIA believed, and the government maintained, that no such right existed.