Filed: Jul. 15, 2013
Latest Update: Feb. 12, 2020
Summary: Case: 12-10583 Document: 00512306487 Page: 1 Date Filed: 07/12/2013 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED July 12, 2013 No. 12-10583 Summary Calendar Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff-Appellee v. FREDIS SARBELIO MOLINA, also known as Fredis Sarbelio Molina-Palacios, Defendant-Appellant Cons. w/ No. 12-10595 UNITED STATES OF AMERICA, Plaintiff-Appellee v. CARLOS MOLINA, Defendant-Appellant Appeals from
Summary: Case: 12-10583 Document: 00512306487 Page: 1 Date Filed: 07/12/2013 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED July 12, 2013 No. 12-10583 Summary Calendar Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff-Appellee v. FREDIS SARBELIO MOLINA, also known as Fredis Sarbelio Molina-Palacios, Defendant-Appellant Cons. w/ No. 12-10595 UNITED STATES OF AMERICA, Plaintiff-Appellee v. CARLOS MOLINA, Defendant-Appellant Appeals from t..
More
Case: 12-10583 Document: 00512306487 Page: 1 Date Filed: 07/12/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
July 12, 2013
No. 12-10583
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
FREDIS SARBELIO MOLINA, also known as Fredis Sarbelio Molina-Palacios,
Defendant-Appellant
Cons. w/ No. 12-10595
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
CARLOS MOLINA,
Defendant-Appellant
Appeals from the United States District Court
for the Northern District of Texas
USDC No. 4:11-CR-187-1
USDC No. 4:11-CR-186-1
Case: 12-10583 Document: 00512306487 Page: 2 Date Filed: 07/12/2013
No. 12-10583
c/w No. 12-10595
Before JOLLY, SMITH, and CLEMENT, Circuit Judges.
PER CURIAM:*
Fredis Sarbelio Molina and his brother Carlos Molina (collectively the
Molinas) were charged in separate indictments with being found unlawfully in
the United States following deportation in violation of 8 U.S.C. § 1326. They
entered conditional guilty pleas, reserving their right to appeal the district
court’s denial of the motions to dismiss their indictments for violations of the
Speedy Trial Act. The Molinas’ appeals have been consolidated.
The Molinas contend that the district court erred in denying their
motions to dismiss. They argue that they were arrested for purposes of the
Speedy Trial Act once the Bureau of Immigration and Customs Enforcement’s
(ICE) Violent Criminal Alien Section (VCAS ) “decided to prosecute them” and
that the lack of any effort to effectuate their removal demonstrates that the
primary purpose of their immigration detention was to hold them for future
criminal prosecution. “We review the district court’s factual findings regarding
a Speedy Trial Act motion for clear error and its legal conclusions de novo.”
United States v. De La Pena-Juarez, 214 F.3d 594, 597 (5th Cir. 2000).
Under the Speedy Trial Act, “[a]ny information or indictment charging
an individual with the commission of an offense shall be filed within thirty days
from the date on which such individual was arrested or served with a summons
in connection with such charges.” 18 U.S.C. § 3161(b). If an indictment or
information is not filed within the time limit set forth in § 3161(b), as extended
*
Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
2
Case: 12-10583 Document: 00512306487 Page: 3 Date Filed: 07/12/2013
No. 12-10583
c/w No. 12-10595
by § 3161(h), the charges against the individual shall be dismissed. 18 U.S.C.
§ 3162(a)(1).
“On its face, the thirty-day requirement applies only to an indictment
issued in connection with the [federal criminal] offense for which the defendant
was arrested.” De La Pena-Juarez, 214 F.3d at 597. Further, as a general rule,
the Speedy Trial Act is not implicated when a defendant is detained on civil
deportation charges.
Id. at 597-98. However, we have recognized an exception
to that rule, holding that the Speedy Trial Act is triggered “where the
defendant demonstrates that the primary or exclusive purpose of the civil
detention was to hold him for future criminal prosecution.”
Id. at 598. This
“ruse exception” is “an effective way of protecting against the possibility of
collusion between federal criminal authorities and civil or state officials.”
Id.
The Molinas’ contention that the VCAS should be considered a federal
criminal authority for purposes of the ruse exception is unpersuasive. Further,
our review of the record and the testimony presented at the evidentiary
hearing supports the district court’s determination that the ruse exception was
not applicable in the instant cases. Because the Molinas admitted that they
had been previously removed following aggravated felony convictions and that
they were in the United States illegally, ICE was authorized to detain them
pending their removal. Further, the record reflects that the Molinas were
being held for removal. Although ICE did not attempt to remove the Molinas
while the VCAS considered whether to recommend criminal prosecution in
their cases, there was no evidence of collusion between the VCAS and the
United States Attorney’s Office. Specifically, the Molinas did not present any
evidence that the United States Attorney’s Office knew of their detention
before October 27, 2011, when Carlos’s case was referred to it for possible
3
Case: 12-10583 Document: 00512306487 Page: 4 Date Filed: 07/12/2013
No. 12-10583
c/w No. 12-10595
criminal prosecution. Likewise, there was no evidence that the United States
Attorney’s Office encouraged ICE to delay the Molinas’ removal, and the 54-day
delay between the Molinas’ immigration arrests and their criminal indictments
does not support an inference of collusion. As we observed in De La
Pena-Juarez, “[t]he fact that federal criminal authorities might have known
about [the alien’s] detention . . . does not necessarily support a conclusion that
they colluded with . . . [ICE] to detain [the alien].” Id. at 600; see also United
States v. Pasillas-Castanon,
525 F.3d 994, 998 (10th Cir. 2008) (“The mere fact
that the detaining authorities are aware other potential criminal charges are
available does not trigger the [ruse] exception.”). Therefore, the district court’s
determination that the Molinas failed to demonstrate that the primary or
exclusive purpose of their immigration detention was to hold them for future
criminal prosecution was not clearly erroneous, and the district court did not
err in denying their motions to dismiss. See De La
Pena-Juarez, 214 F.3d at
599-600.
The Molinas also contend that the district court erred when it denied
their motions for a downward departure based on their cultural assimilation.
Although they acknowledge that we have held that we lack jurisdiction to
review the denial of a downward departure, the Molinas argue that the only
statutory basis for this jurisdictional limitation was excised by the remedial
opinion in United States v. Booker, 543 U.S. 220 (2005).
Post-Booker, we have held that we lack jurisdiction to review the denial
of a downward departure unless the denial was based on the district court’s
erroneous belief that it lacked the authority to depart. United States v. Lucas,
516 F.3d 316, 350 (5th Cir. 2008); United States v. Hernandez,
457 F.3d 416,
424 & n.5 (5th Cir. 2006). The Molinas do not argue that the district court
denied their motions for a downward departure because the court mistakenly
4
Case: 12-10583 Document: 00512306487 Page: 5 Date Filed: 07/12/2013
No. 12-10583
c/w No. 12-10595
believed that it had no authority to depart. Therefore, we lack jurisdiction to
review the district court’s denial of the Molinas’ motions for a downward
departure. See Lucas, 516 F.3d at 350;
Hernandez, 457 F.3d at 424 & n.5.
Accordingly, the district court’s judgments are AFFIRMED in part and
DISMISSED in part for lack of jurisdiction.
5
