from the United States District Court for the Southern
District of Texas
KING, HAYNES, and HIGGINSON, Circuit Judges.
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.
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.
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
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.
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.
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.
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.
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 ...