Filed: May 20, 2015
Latest Update: Mar. 02, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 14-4554 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. RICARDO AUGUSTIN LOPEZ ARANDA, a/k/a Ricardo Augustine, a/k/a Ricardo Lopez, a/k/a Ricardo Aranda, a/k/a Agustin Aranda, a/k/a Lopez Aranda, a/k/a Recardo Lopez, Defendant - Appellant. No. 14-4781 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. RICARDO AUGUSTIN LOPEZ ARANDA, a/k/a Ricardo Augustine, a/k/a Ricardo Lopez, a/k/a Ricardo Aranda, a/k/a Agustin Aranda, a/
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 14-4554 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. RICARDO AUGUSTIN LOPEZ ARANDA, a/k/a Ricardo Augustine, a/k/a Ricardo Lopez, a/k/a Ricardo Aranda, a/k/a Agustin Aranda, a/k/a Lopez Aranda, a/k/a Recardo Lopez, Defendant - Appellant. No. 14-4781 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. RICARDO AUGUSTIN LOPEZ ARANDA, a/k/a Ricardo Augustine, a/k/a Ricardo Lopez, a/k/a Ricardo Aranda, a/k/a Agustin Aranda, a/k..
More
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4554
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
RICARDO AUGUSTIN LOPEZ ARANDA, a/k/a Ricardo Augustine,
a/k/a Ricardo Lopez, a/k/a Ricardo Aranda, a/k/a Agustin
Aranda, a/k/a Lopez Aranda, a/k/a Recardo Lopez,
Defendant - Appellant.
No. 14-4781
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
RICARDO AUGUSTIN LOPEZ ARANDA, a/k/a Ricardo Augustine,
a/k/a Ricardo Lopez, a/k/a Ricardo Aranda, a/k/a Agustin
Aranda, a/k/a Lopez Aranda, a/k/a Recardo Lopez,
Defendant - Appellant.
Appeals from the United States District Court for the Western
District of Virginia, at Roanoke. Glen E. Conrad, Chief
District Judge. (7:13-cr-00026-GEC-1; 7:13-cr-00052-GEC-1)
Submitted: April 30, 2015 Decided: May 20, 2015
Before NIEMEYER, AGEE, and HARRIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Samuel A. Walker, Orlando, Florida, for Appellant. Anthony P.
Giorno, Acting United States Attorney, C. Patrick Hogeboom, III,
Assistant United States Attorney, Roanoke, Virginia; Leslie R.
Caldwell, Assistant Attorney General, Sung-Hee Suh, Deputy
Assistant Attorney General, Thomas E. Booth, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee.
Unpublished opinions are not binding precedent in this circuit.
2
PER CURIAM:
Ricardo Augustin Lopez Aranda pled guilty to one count of
being an alien found in the United States after removal
following conviction of an aggravated felony in violation of 8
U.S.C. § 1326(a), (b)(2) (2012). He was sentenced to 27 months’
imprisonment. At the sentencing hearing, the district court
also found Aranda guilty of violating the terms of supervised
release imposed pursuant to a 2009 conviction for being found in
the United States after prior removal after conviction of a
felony. The court sentenced Aranda to 24 months’ imprisonment
on the revocation, to run consecutively to the 27-month term.
The court also imposed a three-year term of supervised release.
Aranda appeals. Finding no error, we affirm.
Aranda first contends that the “found in” offense in
§ 1326(a)(2) is an unconstitutional status offense because it
does not require an “actus reus” and thus violates the Eighth
Amendment in light of Robinson v. California, 370 U.S. 660
(1962). Because Aranda did not raise this issue in the district
court, we review the claim for plain error. 1 Puckett v. United
1
The government notes that a defendant’s guilty plea
normally waves antecedent defects. See Tollett v. Henderson,
411 U.S. 258 (1973). Because Aranda contends that § 1326(a)(2)
facially violates the Eighth Amendment, the government concedes
that Tollett does not bar this Court’s review. See Menna v. New
York,
423 U.S. 61 (1975). For this reason, the government
(Continued)
3
States, 556 U.S. 129, 134-35 (2009). To establish plain error,
Aranda must demonstrate that (1) an error occurred, (2) the
error was plain, and (3) the error affected his substantial
rights. United States v. Olano,
507 U.S. 725, 732 (1993). Even
if Aranda meets these requirements, the Court will correct the
error only if it “seriously affects the fairness, integrity or
public reputation of judicial proceedings.” Henderson v. United
States,
133 S. Ct. 1121, 1126-27 (2013) (alteration and internal
quotation marks omitted).
Courts of appeals that have addressed the claim that
§ 1326(a)(2) is an unconstitutional status crime have held that
the “found in” offense in that section is not an
unconstitutional status crime under Robinson because
§ 1326(a)(2) necessarily requires that a defendant commit the
act of reentering the United States without permission within
five years of being deported. See United States v. Tovias-
Marroquin, 218 F.3d 455, 457 (5th Cir. 2000); United States v.
Ayala,
35 F.3d 423, 426 (9th Cir. 1994). We likewise find this
claim to be without merit. 2 We further reject Aranda’s claim
declines to invoke the appeal waiver provision in Aranda’s plea
agreement.
2
As the Attorney General notes, Aranda admitted at his
revocation hearing that he illegally reentered the United States
after being removed following his 2009 conviction.
4
that the statute is unconstitutionally vague. See id. at 424-
25; United States v. Meraz-Valeta,
26 F.3d 992, 997 (10th Cir.
1994), overruled on other grounds by United States v. Aguirre-
Tello,
353 F.3d 1199 (10th Cir. 2004) (en banc); United States
v. Whittaker,
999 F.2d 38, 42-43 (2d Cir. 1993).
Next, Aranda asserts that trial counsel was ineffective
under the Sixth Amendment by failing to raise the above
constitutional claims. Unless an attorney’s ineffectiveness
conclusively appears on the face of the record, ineffective
assistance claims are not generally addressed on direct appeal.
United States v. Benton, 523 F.3d 424, 435 (4th Cir. 2008).
Instead, such claims should be raised in a motion brought
pursuant to 28 U.S.C. § 2255 (2012), in order to permit
sufficient development of the record. United States v.
Baptiste,
596 F.3d 214, 216 n.1 (4th Cir. 2010). Accordingly,
because the record does not conclusively establish ineffective
assistance of counsel, Aranda’s claim should be raised, if at
all, in a § 2255 motion.
Finally, Aranda asserts that the district court’s 24-month
sentence imposed for his supervised release violations amounts
to cruel and unusual punishment under the Eighth Amendment where
the criminal statute for the underlying conviction does not
require an actus reus. In 2009, Aranda was sentenced in federal
district court in Texas pursuant to his first conviction under
5
§ 1326. The sentence included a term of supervised release
which he was serving and violated by being subsequently
convicted of forgery and reentering the United States again
illegally and failing to report to probation. Aranda’s
challenge to § 1326(a)(2) in this context is in effect a
collateral attack on his 2009 conviction. Such argument may
only be properly raised on direct appeal of that conviction or
in a habeas corpus proceeding under § 2255. In any event, the
constitutional claim is meritless, and Aranda sets forth no
other challenges to the supervised release proceeding, the
court’s findings, or his sentence.
We accordingly affirm the district court’s judgments. We
dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
AFFIRMED
6
