Filed: Jun. 22, 2012
Latest Update: Mar. 26, 2017
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 11-4853 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. ANTONIO ACOSTA-FLORES, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. John A. Gibney, Jr., District Judge. (3:11-cr-00177-JAG-1) Argued: May 15, 2012 Decided: June 22, 2012 Before TRAXLER, Chief Judge, and KING and WYNN, Circuit Judges. Affirmed by unpublished per curiam opinion. ARGUED: Amy Leigh
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 11-4853 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. ANTONIO ACOSTA-FLORES, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. John A. Gibney, Jr., District Judge. (3:11-cr-00177-JAG-1) Argued: May 15, 2012 Decided: June 22, 2012 Before TRAXLER, Chief Judge, and KING and WYNN, Circuit Judges. Affirmed by unpublished per curiam opinion. ARGUED: Amy Leigh A..
More
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4853
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ANTONIO ACOSTA-FLORES,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. John A. Gibney, Jr.,
District Judge. (3:11-cr-00177-JAG-1)
Argued: May 15, 2012 Decided: June 22, 2012
Before TRAXLER, Chief Judge, and KING and WYNN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: Amy Leigh Austin, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Richmond, Virginia, for Appellant. Stephen David Schiller,
OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia, for
Appellee. ON BRIEF: Michael S. Nachmanoff, Federal Public
Defender, Patrick L. Bryant, Appellate Attorney, OFFICE OF THE
FEDERAL PUBLIC DEFENDER, Alexandria, Virginia, for Appellant.
Neil H. MacBride, United States Attorney, Alexandria, Virginia,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Antonio Acosta-Flores appeals his conviction for illegally
re-entering the country after being removed. See 8 U.S.C.A.
§ 1326(a) (West 2005). Finding no error, we affirm.
I.
Acosta-Flores is a Mexican national who first entered the
United States as a juvenile at an unknown time and place. He
has been removed from the United States more than once, and thus
we will summarize the relevant facts with respect to each order
of removal.
December 18, 1996 In Absentia Removal Order
Acosta-Flores was arrested in Michigan by immigration
officials in October 1995, charged with having entered the
United States without inspection, and placed in removal
proceedings. The order to show cause was printed in Spanish and
English, and Acosta-Flores signed the notice. The order
required Acosta-Flores to appear at a hearing before an
immigration judge (“IJ”) at a time to be determined, and it
indicated that notice of the date would be mailed to the address
given by Acosta-Flores. Acosta-Flores was conditionally
released from custody to his older brother Ernesto, a permanent
legal resident. The release explicitly ordered Acosta-Flores to
appear for a hearing “when required.” J.A. 112. Ernesto read
2
the release to his brother, and both Acosta-Flores and Ernesto
signed it.
On July 8, 1996, the immigration court sent Acosta-Flores a
certified letter (to the address he provided at his release)
informing him that the removal hearing had been set for
December 18, 1996. The post office attempted delivery twice,
and left notices, but the certified letter was returned to the
immigration court marked “[u]nclaimed.” J.A. 123. Acosta-
Flores did not appear for his hearing, and the IJ issued an
order of removal in absentia. The order of removal went
unenforced until the United States Immigration and
Naturalization Service could find him.
February 4, 2002 Enforcement of 1996 In Absentia Order
Immigration officials located Acosta-Flores five years
later in Michigan and, on February 4, 2002, served him with a
warrant of removal directing that the outstanding 1996 in
absentia removal order be executed. Acosta-Flores was
transported to Texas and removed to Mexico.
February 13, 2002 Expedited Order of Removal
One week later, Acosta-Flores attempted to sneak across the
border in the trunk of a car, but he was discovered by border
agents. Because Acosta-Flores was attempting to enter the
United States without valid entry documents, he was summarily
removed on February 13, 2002, pursuant to 8 U.S.C.A.
3
§ 1225(b)(1) (West 2005). Under that statute, border agents are
empowered to unilaterally remove an “arriving” alien at the
border if the alien has false documentation or none at all.
Subsequent Removals
On December 21, 2002, Acosta-Flores was discovered in
Michigan and served with a notice of intent to reinstate a prior
order, namely the February 4, 2002, order of removal under which
the 1996 in absentia removal order was carried out. On
January 7, 2003, Acosta-Flores was returned to Mexico.
On March 10, 2005, Acosta-Flores was caught in New Mexico
and was served with a notice of intent to reinstate a prior
order, namely the 1996 in absentia removal order. On March 10,
2005, Acosta-Flores was removed to Mexico.
Criminal Charges and Motion to Dismiss the Indictment
In June 2011, Acosta-Flores was found in Virginia and
indicted for illegal re-entry after being removed in violation
of 8 U.S.C.A. § 1326(a). Acosta-Flores moved to dismiss the
indictment, claiming that the 1996 in absentia order of removal
was fundamentally unfair and invalid because he never received
notice of the hearing. He further argued that none of the
subsequent orders of removal were valid because they all
reinstated or relied upon the 1996 in absentia order. The
district court rejected this argument, concluding that (1)
Acosta-Flores failed to satisfy the statutory requirements to
4
attack the validity of the underlying removal orders; and (2)
the February 13, 2002, order was not based on the 1996 in
absentia order in any event, and it was a sufficient predicate
to sustain the § 1326 conviction. Acosta-Flores subsequently
entered a conditional guilty plea, preserving only his right to
appeal the denial of his motion to dismiss. The district court
imposed a time-served sentence.
II.
On appeal, Acosta-Flores reiterates the arguments he
presented to the district court in support of his motion to
dismiss. We conclude, however, that the district court properly
denied his motion.
With one exception that does not apply here, 8 U.S.C.A. §
1326(a) makes it a crime for an alien who has been removed to
re-enter the United States without the consent of the Attorney
General. Therefore, a valid order of removal is a condition
precedent to the establishment of guilt under § 1326, and a
defendant may collaterally attack the removal order underlying
the offense. See United States v. Mendoza-Lopez, 481 U.S. 828,
837-38 (1987).
As we have explained, the district court concluded that,
Acosta-Flores’s argument notwithstanding, the February 13, 2002,
expedited removal order served as a valid basis for the
5
conviction because it was not based on the 1996 in absentia
order. Acosta-Flores continues to assert that the February 13,
2002, order was in fact based on the 1996 in absentia order, but
he is incorrect.
The record clearly shows that the February 13, 2002,
Expedited Order of Removal was based on Acosta-Flores’s lack of
documentation at the border rather than on any prior removal
order. The expedited order includes boxes for the border agent
to check indicating the basis for the expedited removal. The
box checked is the one next to Immigration and Nationality Act
section 212(a)(7)(A)(i)(I), which corresponds with 8 U.S.C.A. §
1182(a)(7)(A)(i)(I) (West 2005) and which provides that any
arriving alien not in possession of valid entry documents is
inadmissible. See also 8 U.S.C.A. § 1225(b)(1) (providing for
summary removal of alien arriving in United States if alien is
inadmissible). Nowhere does the expedited order even suggest
that the February 13, 2002, removal was based on the in absentia
order.
Acosta-Flores bases his contrary argument on two points.
First, he claims that “when he was apprehended at the border in
2002, the immigration authorities determined that he was
inadmissible ‘based upon a final order by an immigration judge
in exclusion, deportation, or removal proceedings.’ J.A. 127.”
Appellant’s brief at 16. However, the language on page 127 of
6
the joint appendix that Acosta-Flores quotes is actually from
the warrant of removal issued for Acosta-Flores on February 4,
2002, when he was discovered in Michigan, and thus has no
bearing on the basis of the February 13, 2002 removal order. As
a second basis for his argument that the February 13, 2002 order
was based on the in absentia order, Acosta-Flores cites the fact
that when he was removed on February 13, 2002, he “was given a
form incorrectly advising him that he was inadmissible for a
period of twenty years ‘as a consequence of [his] having been
found inadmissible and of [his] having been previously excluded,
deported, or removed from the United States.’ J.A. 130.”
Appellant’s brief at 16 (alterations in original). However, as
the district court correctly concluded, the fact that Acosta-
Flores was given a notice indicating that his prior removal
would affect the legal consequences of his February 13, 2002
removal does not indicate that the February 13, 2002 removal was
based on the 1996 order rather than on the fact that he was
caught attempting to surreptitiously enter the country without
the proper papers. The district court was therefore correct to
deny the motion to dismiss.
III.
In sum, we affirm Acosta-Flores’s conviction.
AFFIRMED
7
