United States v. 2006-08-30 | 05-50543 | USA VCOVIAN-SANDOVAL | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 UNITED STATES OF AMERICA, No. 05-50543
Plaintiff-Appellee, D.C. No.
v.  CR-05-00292-DMS
JOSE COVIAN-SANDOVAL, OPINION
Defendant-Appellant. 
Appeal from the United States District Court
for the Southern District of California
Dana M. Sabraw, District Judge, Presiding
Submitted May 5, 2006*
Pasadena, California
Filed August 31, 2006
Before: Dorothy W. Nelson, Michael Daly Hawkins, and
Richard A. Paez, Circuit Judges.
Opinion by Judge D.W. Nelson
*This panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
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COUNSEL
David J. Zugman, San Diego, California, for the defendant-
appellant.
Carol C. Lam, Roger W. Haines, Jr., and Stacey H. Sullivan,
San Diego, California, for the plaintiff-appellee.
OPINION
D.W. NELSON, Senior Circuit Judge:
Jose Covian-Sandoval (“Covian”) appeals his conviction
and sentence for attempted illegal entry under 8 U.S.C.
§ 1326. Covian contends that the district court’s plea colloquy
was inadequate under Federal Rule of Criminal Procedure 11
(“Rule 11”), and that the district court’s enhancement of
Covian’s sentence violated Apprendi v. New Jersey, 530 U.S.
466 (2000). Because we conclude that any such errors do not
warrant relief under the plain error standard of review, we
affirm.
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I.
On February 3, 2005, Covian was indicted for attempting
to enter the United States without permission after having
been “excluded, deported and removed from the United States
to Mexico” in violation of 8 U.S.C. § 1326. At trial, Covian
pleaded guilty to the charge without a plea agreement. During
the plea colloquy, defense counsel offered the following fac-
tual proffer:
Mr. McCabe: . . . On December 29th of 2004, Mr.
Covian entered the United States, was found in the
United States [sic] in an area known as the Whiskey
Three area in the Imperial Beach Border Patrol Sta-
tion area of operations. And he had previously been
deported to Mexico on May 28th, 1997 through San
Ysidro, California. And had not applied for or
received permission to reenter the United States
from either the Attorney General or his designated
successor, the Secretary of the Department of Home-
land Security.
The Court: He is a citizen of?
Mr. McCabe: He is a citizen of Mexico. I am sorry,
I forgot that element.
Both Covian and the prosecution agreed to that factual basis
for the plea. At the conclusion of the plea colloquy, the dis-
trict court mirrored closely the language of the indictment in
asking for the plea:
The Court: As to the sole count in the indictment, sir,
how do you plead that on or about December 29,
2004, you were within the Southern District of Cali-
fornia. That you were an alien. That you had previ-
ously been excluded, deported and removed from the
United States to Mexico. That you attempted to enter
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the United States with the purpose, i.e. the conscious
desire, to enter the United States at the San Ysidro
port of entry, without the Attorney General of the
United States or his designated successor, the Secre-
tary of the Department of Homeland Security, hav-
ing expressly consented to your reapplication for
admission into the United States, all in violation of
Title 8, United States Code, section 1326; guilty or
not guilty?
Covian pleaded guilty, and the court accepted the plea.
In its presentence report, the probation office described in
more detail the facts of Covian’s interception at the border,
incorporating comments from defense counsel. The presen-
tence report also noted that Covian had an extensive criminal
history, including a prior felony conviction, and that Home-
land Security officials had confirmed that Covian has “at least
six prior deportations on record, with the last being on
December 21, 2004, just eight days [before] his involvement
in the instant offense.” Covian raised no objection to these
assertions, and was sentenced to 77 months’ imprisonment
with three years of supervised release.
II.
We have jurisdiction to review Covian’s final conviction
and sentence under 28 U.S.C. § 1291 and 18 U.S.C. § 3742.
We generally review de novo whether a plea colloquy met the
requirements of Rule 11. United States v. Pena, 314 F.3d
1152, 1155 (9th Cir. 2003). Because Covian failed to raise
this issue before the district court, however, we may only
reverse his conviction on Rule 11 grounds if the district court
committed plain error. Id.
We also generally review de novo whether a sentence vio-
lates Apprendi. See United States v. Pina-Jaime, 332 F.3d
609, 611 (9th Cir. 2003). Again, however, because Covian-
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Sandoval failed to raise this claim before the district court, we
review his sentence for plain error. United States v. Minore,
292 F.3d 1109, 1121 (9th Cir. 2002).
To grant relief under the plain error standard, we must
determine: (1) there was error, (2) that is plain, and (3) that
affects substantial rights. Id. at 1117 (holding that the plain
error test requires that there “must be an ‘error’ that is ‘plain’
and that ‘affects substantial rights’ ”) (quoting United States
v. Olano, 507 U.S. 725, 732 (1993)). However, even if those
requirements are met, we “will exercise our discretion to cor-
rect the error only if it ‘seriously affects the fairness, integrity
or public reputation of judicial proceedings.’ ” Id. (quoting
Olano, 507 U.S. at 732).
III.
[1] Rule 11 requires a trial judge, before accepting a guilty
plea, to engage in a colloquy with the defendant to confirm
that the defendant understands, among other things, “the
nature of each charge to which the defendant is pleading.”
Fed. R. Crim. P. 11(b)(1)(G). Before entering judgment on a
plea, the court must also “determine that there is a factual
basis for the plea.” Fed. R. Crim. P. 11(b)(3). In evaluating
the adequacy of a Rule 11 colloquy, we examine solely the
record of the plea proceeding itself. United States v. Kamer,
781 F.2d 1380, 1383 (9th Cir. 1986). In ascertaining whether
a Rule 11 error affected the defendant’s substantial rights or
the integrity of the proceeding, however, “we may look to
other portions . . . of the limited record made in guilty plea
cases.” Minore, 292 F.3d at 1119 (internal quotation marks,
brackets, and citation omitted).
A.
[2] We address first whether Covian’s admissions provided
an adequate “factual basis for the plea,” as required by Rule
11(b)(3). Under this Rule, a district court does not have to
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make “an express finding of a factual basis during the plea
colloquy.” In re Ellis, 356 F.3d 1198, 1205 (9th Cir. 2004) (en
banc). Instead, we examine only whether it is “ ‘established
on the record that there is sufficient evidence to support the
conclusion that the defendant is guilty.’ ” Id. (quoting United
States v. Rivera-Ramirez, 715 F.2d 453, 457 (9th Cir.1983)).
Specifically, we must examine whether Covian’s admissions
adequately support the requirements that he had the specific
intent to commit the crime of illegal entry and that he “com-
mitted an overt act that was a substantial step towards reenter-
ing.” United States v. Gracidas-Ulibarry, 231 F.3d 1188,
1196 (9th Cir. 2000) (citations omitted).1 Based on the record
of the plea proceeding, we find the factual basis adequate.
[3] Covian’s factual proffer included the statement that he
“entered the United States.” This admission is plainly suffi-
cient to support the substantial step element of the offense, for
the successful completion of an entry is no bar to a conviction
for attempted entry. See United States v. Rivera-Relle, 333
F.3d 914, 919, 921 (9th Cir. 2003). It also serves to support,
at least in part, the inference that Covian possessed the spe-
cific intent to enter the United States. See United States v.
King, 257 F.3d 1013, 1022 (9th Cir. 2001) (“Sufficient evi-
dence indicating guilt is adequate; the court need not convince
itself of guilt beyond a reasonable doubt.”). In any event, the
court subsequently and unambiguously specified that by
pleading guilty Covian would admit that he “attempted to
enter the United States with the purpose, i.e. the conscious
desire,” of crossing the border without proper permission. We
therefore cannot find that the court’s acceptance of the factual
basis for the plea accordingly constitutes any “ ‘error’ that is
‘plain.’ ” Minore, 292 F.3d at 1117 (quoting Olano, 507 U.S.
at 732).
1Covian does not dispute that his admissions adequately support the
remaining elements of the attempted illegal entry offense—i.e., that
Covian is not a United States citizen, that he had been previously
deported, and that he did not have permission to return. See Gracidas-
Ulibarry, 231 F.3d at 1196.
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Covian argues, to the contrary, that the basis for his guilty
plea for attempted entry was undermined by his further
admission that he “was found in the United States . . . in the
Imperial Beach Border Patrol Station area of operations.”
Specifically, he claims that his admission to being “found in”
the United States should have precluded the district court
from accepting his guilty plea for attempting to enter the
United States.
[4] It is true that the section under which Covian was con-
victed creates three distinct substantive offenses: attempting
to enter, entering, and being found in the United States. See
18 U.S.C. § 1326(a); United States v. Corrales-Beltran, 192
F.3d 1311, 1319-20 (9th Cir. 1999). But Covian’s admissions
were of facts, not law; they were expressly offered for, and
confirmed as, the “factual basis” for his plea. The mere fac-
tual admission of being “found in” the United States does not
necessarily constitute an admission of all of the legal elements
of a “found in” offense under § 1326. As statements of fact,
moreover, there was no conflict between Covian’s acknowl-
edgments that he “entered the United States” and “was found
in the United States.”
[5] Additionally, even if Covian’s claim of being “found
in” the United States were taken in its legal sense, the guilty
plea for attempted entry would still have adequate support.
The three offenses contained in § 1326 do not depend on
mutually exclusive facts. In particular, admitting the commis-
sion of a “found in” offense would not, contrary to Covian’s
arguments, create a defense to the charge of attempted entry.
The offense of being found in the United States encompasses,
among its requirements, the offense of illegal entry. See
United States v. Pacheco-Medina, 212 F.3d 1162, 1166 (9th
Cir. 2000) (holding that “an entry, as defined legally, is
required before a person is ‘found in’ the United States”). As
an inchoate crime, the offense of attempted illegal entry con-
tains the heightened mens rea element of specific intent, but
nothing about an admission of an entry or “found in” offense
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inherently militates against a finding of specific intent. See
United States v. Rivera-Sillas, 417 F.3d 1014, 1020 (9th Cir.
2005) (“A ‘found in’ offense under § 1326 is a general intent
crime.”). We therefore conclude that there was an adequate
factual basis for Covian’s plea, in compliance with Rule
11(b)(3), and that accordingly there was no error, plain or oth-
erwise.
B.
We next examine whether the district court adequately con-
firmed that Covian understood “the nature of [the] charge” to
which he was pleading guilty. Fed. R. Crim. P. 11(b)(1)(G).
Although the colloquy may not have fully met the require-
ments of Rule 11, we do not find any error that “seriously
affect[ed] the fairness, integrity or public reputation of judi-
cial proceedings.” Olano, 507 U.S. at 736 (internal quotation
marks and citation omitted).
[6] Rule 11 imposes a two-part burden on the district court.
Before accepting a guilty plea, the court must “[1] inform the
defendant of, and [2] determine that the defendant under-
stands [the nature of the charge.]” Fed. R. Crim. P. 11(b)(1);
see also Minore, 292 F.3d at 1115 (“[T]he district court must
advise the defendant of the elements of the crime and ensure
that the defendant understands them.”).
[7] Given the straightforward nature of an attempted entry
offense, the court fulfilled the first part of its duty by reciting
the elements of the offense. See United States v. Bruce, 976
F.2d 552, 560 (9th Cir. 1992) (noting that such a recitation
“suffice[s] to inform the defendant of the nature of the
charges against him only in exceedingly simple and easily-
understood cases”). Regardless, however, the district court
clearly did not fulfill the second part of its duty, for it did
nothing to “elicit responses” from Covian to ensure that his
understanding was “manifest.” Kamer, 781 F.2d at 1385. This
failure to satisfy the requirements of Rule 11 is “error, and it
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is plain.” Pena, 314 F.3d at 1157; see also Olano, 507 U.S.
at 734 (“ ‘Plain’ is synonymous with ‘clear,’ or, equivalently,
‘obvious.’ ”).
We need not address whether such an error affected Covi-
an’s substantial rights, however, because in any event we can-
not conclude that it “seriously affects the fairness, integrity or
public reputation of judicial proceedings.” Olano, 507 U.S. at
732 (internal quotation marks, brackets, and citations omit-
ted); see also United States v. Cotton, 535 U.S. 625, 632-33
(2002) (bypassing the “substantial rights” prong of the plain
error inquiry where, “even assuming respondents’ substantial
rights were affected, the error did not seriously affect the fair-
ness, integrity, or public reputation of judicial proceedings”).
Taking into account both the colloquy and the complete
record, we find no indication that Covian actually lacked
understanding of his straightforward crime.
[8] The materials at sentencing—including the account of
the underlying events provided to the probation office by
Covian himself, and vetted by his counsel—indicate unequiv-
ocally Covian’s full comprehension of the nature of the
offense. Covian admitted that he attempted to enter the United
States illegally by climbing the international boundary fence
near San Ysidro, California, and expressed remorse for his
actions. At no time has he contested the uncomplicated facts
offered in the presentence report, which notes that a U.S. Bor-
der Patrol agent observed Covian scaling the fence and
arrested him after a brief foot chase. Cf. Cotton, 535 U.S. at
633 (denying plain error relief on this prong because the evi-
dence was “overwhelming” and “essentially uncontroverted”).
With these facts in mind, we further note that although the
district court’s error involved a core concern of Rule 11, see
Pena, 314 F.3d at 1157, the error was minor in degree. In a
context involving an easily understood crime, the district
court confirmed with defense counsel that he had advised
Covian of the charge against him, and confirmed with Covian
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that he was satisfied with his discussions with counsel. The
elements of the crime had been included plainly and without
significant “legal argot” in the indictment, and the judge simi-
larly recited them prior to Covian’s plea. Bruce, 976 F.2d at
560; cf. Rivera-Ramirez, 715 F.2d at 457 (finding reading of
unusually detailed indictment was adequate under Rule 11 to
avoid reversal for “manifest injustice”). Nor does the record
reflect any confusion or uncertainty on Covian’s part during
the hearing. Under the circumstances, the district court’s error
was not a “wholesale failure to comply with the requirements
of Rule 11.” Pena, 314 F.3d at 1158.
[9] In sum, it is clear that Covian adequately “possesse[d]
an understanding of the law in relation to the facts.” United
States v. Portillo-Cano, 192 F.3d 1246, 1251 (9th Cir. 1999)
(internal quotation marks and citation omitted). Accordingly,
the court’s error is insufficiently grave to constitute a “miscar-
riage of justice” that “seriously affect[ed] the fairness, integ-
rity or public reputation of judicial proceedings.” Olano, 507
U.S. at 736 (internal quotation marks and citation omitted).
Covian’s claim therefore does not merit relief under the plain
error standard.
IV.
Covian also claims that the district court lacked the author-
ity to increase his sentence based on facts it found at sentenc-
ing. He does not dispute the substance of any facts the district
court found; instead, he only challenges the court’s authority
to enhance his sentence based on such fact-finding. Under
Apprendi and its progeny, “[a]ny fact (other than a prior con-
viction) which is necessary to support a sentence exceeding
the maximum authorized by the facts established by a plea of
guilty or a jury verdict must be admitted by the defendant or
proved to a jury beyond a reasonable doubt.” United States v.
Booker, 543 U.S. 220, 244 (2005). Underlying the issue in
this case is the provision of § 1326 that increases the maxi-
mum sentence for an alien convicted of attempted entry after
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removal if the alien’s “removal was subsequent to a convic-
tion for commission of an aggravated felony.” 8 U.S.C.
§ 1326(b)(2). Covian claims that his guilty plea admitted nei-
ther the prior conviction nor the subsequent removal, and that
the court’s increased sentence under § 1326(b)(2) therefore
violated Apprendi twice over. We agree with Covian as to the
subsequent removal, though not as to the prior conviction, but
we again find that relief is not warranted under the plain error
standard.
A.
[10] Under the Supreme Court’s decision in Almendarez-
Torres v. United States, a judge may enhance a sentence
under § 1326(b) for a prior conviction even if the fact of the
conviction was not charged in the indictment, submitted to a
jury, or proved beyond a reasonable doubt. See 523 U.S. 224
(1998); United States v. Pacheco-Zepeda, 234 F.3d 411, 415
(9th Cir. 2000).
[11] Covian argues that the Supreme Court has effectively
overruled Almendarez-Torres, and, relatedly, that recent
Supreme Court decisions create constitutional doubt that
should compel us to limit the holding of Almendarez-Torres
to cases in which the defendant admits the prior conviction
during a guilty plea.2 Covian also argues that Apprendi ren-
ders unconstitutional the provisions of § 1326 that allow a
judge to increase the maximum sentence from two years to
twenty. All of these arguments, however, are squarely fore-
closed by our precedents. See, e.g., United States v. Beng-
Salazar, ___ F.3d ___, 2006 WL 1843394 (9th Cir. 2006);
United States v. Diaz-Argueta, 447 F.3d 1167, 1170 (9th Cir.
2006); United States v. Rodriguez-Lara, 421 F.3d 932, 949-50
(9th Cir. 2005). We therefore must reject Covian’s contention
2Specifically, Covian bases this latter argument on Dretke v. Haley, 541
U.S. 386 (2004), and United States v. Shepard, 544 U.S. 13 (2005).
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that the district court could not enhance his sentence based on
its own finding of the fact of a prior felony conviction.
B.
[12] We turn to the district court’s finding that Covian was
removed after his felony conviction. The plain language of
§ 1326 clearly does not allow a district court to apply the
heightened maximum sentence to an alien whose removal was
prior to a felony conviction, rather than “subsequent” to it. 8
U.S.C. § 1326(b)(2). In other words, to trigger the increase in
the statutory maximum sentence under § 1326(b)(2), an alien
must first be convicted of an aggravated felony, then be
removed, and then attempt to reenter, in that order. See id.;
United States v. Luna-Madellaga, 315 F.3d 1224, 1226 (9th
Cir. 2003) (“All that the statute requires is that the alien
[attempt to] reenter the United States illegally after having
been removed subsequent to an aggravated felony convic-
tion.”).
The removal that Covian admitted at trial was in 1997.
Because his felony conviction was not until 2002, that
removal does not support a sentence enhancement, and there
was no mention in the indictment or at trial of any other
removal. At sentencing, however, the court found that Covian
was removed again in 2004, eight days before his attempted
reentry. Because this second removal fell between Covian’s
felony conviction and his subsequent attempt to reenter the
United States, the court issued an enhanced sentence under
§ 1326(b)(2).
[13] Covian does not challenge the substance of any of
these facts. Instead, he argues that, under Apprendi, if a spe-
cific removal is admitted at trial, an enhanced sentence cannot
be triggered under § 1326(b) by a different removal that he
did not admit. We agree with Covian, but we again find that
relief is not warranted under the high bar of the plain error
standard of review.
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[14] It is clear that the sentencing court’s reliance on the
2004 removal was error under Apprendi and that this error
was plain. The fact of a prior conviction is the only fact that
both increases a penalty beyond the statutory maximum and
can be found by a sentencing court. United States v.
Fresnares-Torres, 235 F.3d 481, 482 (9th Cir. 2000). The
premise for this exception is that prior convictions are “the
product of proceedings that afford crucial procedural
protections—particularly the right to a jury trial and proof
beyond a reasonable doubt.” United States v. Tighe, 266 F.3d
1187, 1194 (9th Cir. 2001). Accordingly, the exception is
“limited to prior convictions that were themselves obtained
through proceedings that included the right to a jury trial and
proof beyond a reasonable doubt.” Id. The fact of a prior
removal plainly falls outside the scope of this exception, for
immigration proceedings are civil, not criminal, lacking both
juries and the reasonable doubt standard. See, e.g., United
States v. Solano-Godines, 120 F.3d 957, 960-61 (9th Cir.
1997). Moreover, unlike the fact of a prior conviction at issue
in Almendarez-Torres, the fact of an alien’s prior removal or
departure is plainly one of the elements of the crime for which
Covian was convicted. See 8 U.S.C. § 1326(a); Gracidas-
Ulibarry, 231 F.3d at 1196. Accordingly, it must be proved
beyond a reasonable doubt to a jury or admitted by the defen-
dant. See, e.g., Apprendi, 530 U.S. at 477; Almendarez-
Torres, 523 U.S. at 239; Fresnares-Torres, 235 F.3d at 482.
[15] Here, the sentencing court did not merely find the fact
of a prior conviction. Instead, it found the existence of a sub-
sequent removal that was neither proven beyond a reasonable
doubt at trial nor admitted by Covian. Indeed, because Covian
admitted a particular—and different—date of removal at trial,
it is clear that the removal allowing his conviction did not
happen at a time subsequent to his felony conviction. We reit-
erate today that the only exception to Apprendi’s rule involves
the fact of a prior conviction. Accordingly, the enhancement
of Covian’s sentence, based on the factual finding of a subse-
quent removal, constituted plain error.
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[16] Turning to the next prong in the plain error analysis,
however, we find that this error did not violate Covian’s sub-
stantial rights—that is, that “the sentencing judge’s determi-
nation did not prejudice [Covian] in a manner that affected the
outcome of the . . . proceedings.” United States v. Buckland,
289 F.3d 558, 568 (9th Cir. 2002) (en banc) (internal quota-
tion marks and citations omitted). This inquiry directs us to
consider the fact improperly found at sentencing “as the
equivalent of an element of the offense on which the jury was
not instructed,” such that we must “inquire whether it was
clear beyond a reasonable doubt that a rational jury would
have found the defendant guilty absent the error.” Minore,
292 F.3d at 1122 (internal quotation marks and citations omit-
ted); see generally United States v. Nordby, 225 F.3d 1053,
1060 (9th Cir. 2000) (describing the inquiry). We apply this
inquiry with regard to “any question of fact” found in viola-
tion of Apprendi. Minore, 292 F.3d at 1121 n.11.
Critically, the defendant bears the burden of raising a rea-
sonable doubt as to the fact. Id. at 1122. Covian has failed to
meet this burden. On the contrary, his actions practically con-
cede that he was, in fact, removed a week before his
attempted reentry in 2004. He never raised any objection to
the allegation of a 2004 removal, either in response to the pre-
sentence report or in response to the court’s express reliance
on that removal during the sentencing hearing. Cf. Buckland,
289 F.3d at 569-70 (noting that the defendant had not chal-
lenged the relevant facts at sentencing); Minore, 292 F.3d at
1122 (same).
[17] Most significantly, Covian’s arguments to the sentenc-
ing court effectively conceded that a sentence enhancement
under § 1326(b) would be appropriate. Without such an
enhancement, Covian’s maximum sentence under the statute
would have been two years. See 8 U.S.C. § 1326(a). Covian’s
sentencing memorandum never challenged the presentence
report’s recommended enhancement for a prior conviction,
however. Quite the opposite: basing his defense on different
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grounds, Covian argued for a range of 77-96 months under
the Sentencing Guidelines, with a downward variance under
§ 3553(a) to “no more than 60 months.” At the hearing,
defense counsel then argued for a 48-month sentence.
[18] There is no indication in the record that a sentence
exceeding two years was allowed for any reason other than
Covian’s removal subsequent to a felony conviction. See
§ 1326(b)(3) & (4) (providing other bases, not evident here,
for increasing a § 1326 sentence beyond two years). On the
contrary, Covian’s counsel argued in his sentencing memo-
randum that “although defendant’s prior criminal record is
extensive, from all indications, his most recent illegal entry
was motivated by economic necessity.” In sum, Covian has
done nothing to meet his burden of raising a reasonable doubt
as to the fact of his 2004 removal. Under the plain error stan-
dard, his sentence must therefore stand.
V.
For the foregoing reasons, we conclude that the errors com-
mitted by the district court under Rule 11 and Apprendi do not
warrant relief on appeal under the plain error standard of
review. Accordingly, we must uphold Covian’s conviction
and sentence.
AFFIRMED.
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