No Equitable Vacatur of Supervised Release for Deported 1326 Defendant

United States v. Heredia-Holguin, No. 14-10846 (5th Cir. June 16, 2015) (Reavley, Owen, Higginson)

 

Heredia-Holguin was sentenced to one year in prison and a three-year term of supervised release for illegal reentry. He did not object to his sentence or term of supervised release. While Heredia-Holguin’s appeal was pending, he served his one-year prison term and was deported with supervised release. After his deportation, his counsel filed a brief conceding the deportation rendered the appeal moot, and he requested that his remaining term of supervised release be vacated.  

 

The panel ordered supplemental briefing on three issues: 1) what error had Heredia-Holguin complained of on appeal, 2) whether the appeal had become moot, and 3) if the appeal was moot, “whether the court should vacate the conviction, sentence, or term of supervised release under the doctrine of equitable vacatur.”  

 

First, Heredia-Holguin emphasized in his supplemental briefing that he was not pursuing the sentencing appeal.  Rather, he “requested only that the panel vacate the remaining term of his supervised release.”

 

As to mootness, the panel discussed United States v. Lares-Meraz and United States v. Rosenbaum-Alanis, which arrived at opposite conclusions regarding mootness of a sentencing appeal after the defendant is deported. In Lares-Meraz, the “alleged sentencing error,” was not moot “because the defendant remained the subject to a term of supervised release, an element of the overall sentence.” The error, however, was harmless. In Rosenbaum-Alanis, the defendant’s sentencing appeal was moot because the defendant could not reenter the U.S. for resentencing purposes, and no waiver was on record allowing for his absence. The panel perceived inconsistences between Lares-Meraz and Rosenbaum-Alanis but opted not to resolve them.

 

Assuming Heredia-Holguin’s appeal was moot, the panel denied his request to vacate his supervised release under the doctrine of equitable vacatur. “[V]acatur is in order when mootness occurs through happenstance or unilateral action of the party who prevailed in the lower court.”  Heredia-Holguin’s deportation, however, cannot be attributed to happenstance or the unilateral action of the Government since it was the natural consequence of Heredia-Holguin reentering the United States illegally. Furthermore, the district court “imposed the term of supervised release to deter Heredia-Holguin from illegally returning to the U.S.”  In light of the deterrent effect and his failure to object to the imposition of supervised release before the district court, the panel did not exercise its equitable discretion to vacate Heredia-Holguin’s term of supervised release. 

 

Since it denied Heredia-Holguin’s request, the panel did not address “the Government’s argument that equitable vacatur is a civil doctrine that is not available in a criminal case as a matter of law.”

 

Thanks to FPD Intern Adam Pena for this post.

Counsel’s Stipulation to Testimonial Evidence Waived Client’s Confrontation Right Even Absent Evidence that Client Agreed to Stipulation

United States v. Ceballos, No. 13-50786, (5th Cir. June 16, 2015) (Smith, Prado, Owen)  

Ceballos appealed her conviction for “transporting, attempting to transport, and engaging in a conspiracy to transport an alien within the United States” by alleging a violation of her Sixth Amendment right, improper admission of evidence, and that cumulative error deprived her of a fair trial.  The panel rejected each of her claims, affirming the conviction. 

First, Ceballos challenged the admission of a material witness’s sworn statement as a violation of her Sixth Amendment right of confrontation.  Her defense attorney did not object to its admission.  The Fifth Circuit has upheld waivers of the right of confrontation without evidence that the defendant [herself] expressed agreement with the stipulation.  See United States v. Reveles, 190 F.3d 678, 683 (5th Cir. 1999); United States v. Stephens, 609 F.2d 230, 232-33 (5th Cir. 1980).  Since Ceballos did not dissent from the attorney’s failure to object and the stipulation could have been a legitimate trial strategy according to the panel, her counsel’s waiver of her right was valid.  The panel found Crawford did not overrule this precedent and declined Ceballos’ invitation to revisit Stephens.

This holding is of particular concern given how the “stipulation” occurred in this case.  The defense attorney never said, “We stipulate to the admission of the alien’s sworn testimony and waive the right to confront the alien.”  Rather, the district court asked if the parties had agreed on exhibits to be admitted.  Aside from an objection to the notebook described below, defense counsel responded affirmatively to the court’s question if he was “‘in agreement as to the admissibility of the government’s exhibits under those exhibit numbers?’”  In other words, the only way Ceballos could have preserved her right to confront the alien is if she knew the alien’s sworn affidavit was Exhibit 8 and during this oblique exchange with the court said that she disagreed with the admissibility of that exhibit.  The court never asked Ceballos if she was willing to waive her confrontation right, and Fifth Circuit precedent does not require the court to do so.

Ceballos’ allegations that the notebook, identified by the government as a smuggling ledger, was not properly authenticated and was inadmissible under Federal Rule of Evidence 404(b) were denied.  While a “close” issue, the panel found that the district court did not abuse its discretion by finding the notebook properly authenticated even though the Government did not present a handwriting expert.  The notebook was found in Ceballos’ purse, and the contents of the notebook provided some corroboration of the illegal activity.  The panel affirmed the admission of the notebook, on plain error review, because there was a strong basis to determine it was intrinsic evidence and, alternatively, it would have served a permissible evidentiary purpose under Rule 404(b).

The final claim, that there was cumulative error in inappropriate government witness testimony commenting on Ceballos’ invocation of her right to counsel and silence coupled with improper closing arguments deprived her of a fair trial, was also rejected for failure to demonstrate plain error. 

Thanks to FPD Intern Samantha Canava for her contributions to this post.

AK-47 Magazines Are “Components” for Purposes of Firearm Exportation Laws

United States v. Gonzalez, No. 14-40344 (5th Cir. June 23, 2015) (Jones, Smith, Costa)

Gone are the days of the Civil War musket, when one’s life depended on quickly loading the gun, only to fire a single, anti-climactic shot at the enemy. Fast-forward a couple wars later, and the AK-47, a high-powered, automatic rifle (“automatic” being the “A” in AK-47), made its debut. Used since WWII, the detachable magazine of an AK-47 derives its “use” from the gun itself. That is the issue the panel takes up in this case: whether a magazine of the AK-47 is a “component” of the gun under laws that prohibit the unlicensed exportation of firearms and their items. The panel affirmed the district court’s ruling that the magazine of the AK-47 is a “component.”

The Defendant, Arturo Gonzalez, was convicted of unlawfully exporting hundreds of AK-47 magazines to the henchmen of Mexican drug cartels. Gonzalez, whose shop was four blocks from the border, received $30,000 cash for the magazines in a “no-questions-asked” sale t a man named “El Gordo.” The man told Gonzalez that he “was going to take the magazines to Mexico.” Gonzalez argued that exporting empty magazines, however, was not prohibited under the smuggling statute of which he was convicted.       

The Arms Control Export Act “criminalizes the unlicensed export of items ‘designated by the President’ as ‘defense articles’.” These designated items are set forth in the U.S. Munitions List, compiled by the State Department’s Directorate of Defense Trade Controls, which includes certain firearms and their “components, parts, accessories, and attachments.” 

The panel looked at the State Department’s regulatory scheme, where it defined an “end-item” as a “system, equipment, or an assembled article ready for intended use,” and a “component” as an “item that is useful only when used in conjunction with an ‘end-item’.”

The AK-47 was the “end-item” and the panel found that the magazine was in fact the “component” to that item. The magazine’s purpose is “increasing the firearm’s ammunition capacity and rate of fire.” Thus the magazine is only “useful” with the AK-47. Also, the State Department confirmed that the Munitions List “covers magazines,” foreclosing Gonzalez’s argument. The panel found that even when viewed generally, the magazine fit the “component” meaning, as it served “the larger whole,” the gun. Also, on the issue of the magazines being unloaded, the panel reasoned that the Munitions List “covers articles not loaded at time of export” because otherwise offenders could easily export magazines and cartridges, later to be combined, separately, defeating the purpose of illegal exportation laws.

The panel also affirmed the district court’s sentence of 63 months, which was within the advisory Guidelines range using base offense level 26.  Gonzalez argued level 14, which applies to offenses involving non-fully automatic small arms or less than 500 rounds, was the proper base offense level because magazines should be considered “small arms” for the Guideline.  The district court held that the magazines support level 26 precisely because they are not “small arms.”  Additionally, Gonzalez did not challenge the factual finding that his export scheme involved selling thousands of rounds of ammunition, which would independently support the higher offense level.

Thanks to FPD Intern Adam Pena for this post.