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United States v. Rodriguez-Aparicio

United States Court of Appeals, Fifth Circuit

April 23, 2018

UNITED STATES OF AMERICA, Plaintiff-Appellee
v.
SANTIAGO HUMBERTO RODRIGUEZ-APARICIO, Defendant-Appellant

          Appeal from the United States District Court for the Southern District of Texas

          Before KING, HAYNES, and HIGGINSON, Circuit Judges.

          KING, Circuit Judge:

         Discontent with the services of his federal public defender, Santiago Humberto Rodriguez-Aparicio opted to represent himself. A two-day jury trial yielded a conviction on a charge of illegal reentry. On appeal, he argues that the district court effectively denied him the right to testify in his own defense. During a hearing focused on his waiver of the right to counsel, Rodriguez told the court that he understood he would receive "two more points" at sentencing if he testified. According to his argument on appeal, that triggered a duty to set him straight and explain that the penalty was not, in fact, automatic. Under the circumstances, we hold that there was no such duty. Rodriguez also contends that the district court should have dismissed his indictment based on defects in his removal proceedings. But he concedes that our precedent forecloses this argument. As a result, we AFFIRM his conviction and sentence.

         I.

         A.

         Santiago Humberto Rodriguez-Aparicio is a citizen of El Salvador. He was admitted into the United States as a lawful permanent resident in 1994. Thirteen years later, in 2007, U.S. Immigration and Customs Enforcement ("ICE") sought to remove him from the country based on a California firearm conviction. See 8 U.S.C. § 1227(a)(2)(C) (providing for removal of "[a]ny alien who at any time after admission is convicted under any law of . . . possessing[] or carrying . . . a firearm"). ICE served Rodriguez with a document titled "Stipulated Request for Removal Order and Waiver of Hearing Made By Respondent Who is Unrepresented." Rodriguez signed the stipulation. In doing so, he admitted to the facts alleged by ICE. He also waived his right to an attorney, a hearing, discretionary relief, and any appeal of the immigration judge's order. An immigration judge then ordered Rodriguez removed. ICE dispatched him to El Salvador by plane the next month.

         In 2009, Rodriguez was charged in the District of Nevada with illegal reentry and illegal possession of a firearm and ammunition. He moved to dismiss the indictment, arguing that the immigration judge's failure to advise him of his eligibility for voluntary departure violated his right to due process. The Government declined to respond and instead moved to dismiss the illegal reentry count of the indictment. Rodriguez was convicted following a jury trial on the remaining counts and sentenced to 41 months' incarceration. He was removed from the United States two years later.

         Rodriguez once again turned up in the United States in March 2015, when U.S. Customs and Border Patrol ("CBP") apprehended him near the Rio Grande River.

         B.

         A grand jury in the Southern District of Texas returned an indictment charging Rodriguez with illegally reentering the United States, in violation of 8 U.S.C. § 1326(a), (b). Rodriguez pleaded not guilty.

         During pretrial proceedings, Rodriguez repeatedly aired his dissatisfaction with his federal public defender. According to Rodriguez, his attorney was resisting his request to file a motion to dismiss the indictment based on defects in his removal proceedings. Rodriguez's counsel ultimately complied with his request. In the motion, counsel argued that the immigration judge's failure to advise Rodriguez of his eligibility for voluntary departure violated his due process rights but conceded that the issue was foreclosed in the Fifth Circuit. The district court denied the motion.

         Rodriguez's dissatisfaction with his attorney did not abate in the months leading up to trial. He ultimately requested that he be allowed to represent himself. The district court advised him against doing so. Rodriguez responded that he believed he would lose regardless and preferred to represent himself. Said Rodriguez, "I've already been to trial once before and I think I can do it." The court explained the charges, the maximum punishments, the immigration consequences, and the sentencing procedures. It advised Rodriguez that it would expect him to hew to the Federal Rules of Evidence and Criminal Procedure. If he decided to take the witness stand, the court told him that he would be required to ask himself questions and could not testify in narrative form. The court next informed Rodriguez that if he represented himself, the court would not give him legal advice, except to stop him from presenting inadmissible evidence or improper arguments.

         The district court strongly urged Rodriguez not to represent himself in light of the "serious penalty" he might be facing. In response to that remark, Rodriguez asked, "The punishment, will it be higher if I have an attorney or if I ...


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