United States of America v. Alfonso Martinez Rocha

*The Honorable Algenon L. Marbley, United States District Judge for
the Southern District of Ohio, sitting by designation.
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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2003 FED App. 0251P (6th Cir.)
File Name: 03a0251p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ALFONSO MARTINEZ ROCHA,
Defendant-Appellant.
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No. 03-5149
Appeal from the United States District Court
for the Eastern District of Kentucky at Covington.
No. 02-00030—Danny C. Reeves, District Judge.
Argued: June 18, 2003
Decided and Filed: July 25, 2003
Before: BOGGS and GILMAN, Circuit Judges;
MARBLEY, District Judge.*
_________________
COUNSEL
ARGUED: Firooz T. Namei, MCKINNEY & NAMEI,
Cincinnati, Ohio, for Appellant. John Patrick Grant,
2 United States v. Rocha No. 03-5149
ASSISTANT UNITED STATES ATTORNEY, Lexington,
Kentucky, for Appellee. ON BRIEF: Firooz T. Namei,
Candace C. Crouse, MCKINNEY & NAMEI, Cincinnati,
Ohio, for Appellant. John Patrick Grant, Charles P. Wisdom,
Jr., ASSISTANT UNITED STATES ATTORNEY,
Lexington, Kentucky, for Appellee.
_________________
OPINION
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RONALD LEE GILMAN, Circuit Judge. A federal grand
jury indicted Alfonso Martinez-Rocha in May of 2002 on one
count of unlawfully reentering the United States after having
been deported. Martinez-Rocha moved to dismiss the
indictment on the ground that the prior order of deportation
was predicated on the legal error that his 1999 driving-under-
the-influence (DUI) conviction was an “aggravated felony.”
After the district court denied his motion, Martinez-Rocha
entered a conditional plea of guilty. He then appealed in
order to challenge the alleged legal error. For the reasons set
forth below, we AFFIRM the judgment of the district court.
I. BACKGROUND
A. Factual background
Martinez-Rocha is a citizen of Mexico who entered the
United States without authorization in 1993. Approximately
six years later he was convicted in a Kentucky state court of
DUI and was sentenced to 18 months in prison, followed by
a probationary term. After Martinez-Rocha was released
from prison, he was arrested in Kentucky for violating the
terms of his probation. The Immigration and Naturalization
Service (INS) took him into custody. According to INS
Agent Michael Galvan, who spoke with Martinez-Rocha
shortly thereafter, Martinez-Rocha “said he wanted to go back
to Mexico and that he wanted to do it as soon as possible. He

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No. 03-5149 United States v. Rocha 3
actually contacted his probation officer, who in turn contacted
me.”
Martinez-Rocha was then transported to Louisiana. He
received a Notice of Intent to Issue Final Administrative
Removal Order in June of 2000. This notice advised him that
the INS was seeking his deportation pursuant to 8 U.S.C.
§ 1227(a)(2)(A)(iii), which provides that “[a]ny alien who is
convicted of an aggravated felony at any time after admission
is deportable.”
On June 30, 2000, Martinez-Rocha signed an English-
language form acknowledging that he had received the Notice
of Intent. The form memorialized that the notice had been
read to Martinez-Rocha in Spanish. Martinez-Rocha also
signed his name below the following statement:
I admit the allegations and charge in this Notice of Intent.
I admit that I am deportable and acknowledge that I am
not eligible for any form of relief from removal. I waive
my right to rebut and contest the above charges and my
right to file a petition for review of the Final Removal
Order. I do not wish to request withholding or deferral
of removal. I wish to be removed to Mexico.
The INS issued a final administrative removal order on the
same day. On July 13, 2000, Martinez-Rocha was deported.
A few months later, Martinez-Rocha again entered the
United States without authorization and returned to Kentucky.
State authorities arrested him in April of 2002 because he had
not paid the financial penalties that he had incurred as the
result of a traffic conviction. An INS agent then interviewed
Martinez-Rocha, who acknowledged that he had been
deported in July of 2000.
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B. Procedural background
A single-count indictment was returned against Martinez-
Rocha, charging him with violating 8 U.S.C. § 1326, which
prescribes a criminal penalty for “any alien who . . . (1) has
been . . . deported . . ., and thereafter (2) enters . . . the United
States” without authorization. 8 U.S.C. § 1326(a). The
indictment alleged that Martinez-Rocha was “an alien who
had previously been deported following his conviction for an
aggravated felony.” An enhanced penalty applies to any alien
“whose removal was subsequent to a conviction for
commission of an aggravated felony,” pursuant to 8 U.S.C.
§ 1326(b)(2).
Martinez-Rocha filed a motion to dismiss the indictment.
He contended that his 1999 DUI conviction should not have
been considered an aggravated felony, so that the order of
removal in 2000 was erroneous. The government countered
that the underlying deportation order was not subject to
collateral attack. After conducting a hearing, the district court
denied the motion to dismiss. Martinez-Rocha then entered
a conditional plea of guilty. He was sentenced to 15 months
in prison. Although the district court also imposed a two-year
term of supervised release, the judgment noted that this term
would not be applicable if Martinez-Rocha was deported after
his imprisonment. This timely appeal followed.
II. ANALYSIS
Martinez-Rocha argues that his 1999 DUI conviction
should not have been characterized as an aggravated felony.
But a defendant charged with unlawfully reentering the
United States after having been ordered deported may not
challenge the validity of the underlying deportation order
unless three statutory conditions are satisfied. The defendant
must demonstrate that:
(1) the alien exhausted any administrative remedies that
may have been available to seek relief against the order;

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No. 03-5149 United States v. Rocha 5
(2) the deportation proceedings at which the order was
issued improperly deprived the alien of the opportunity
for judicial review; and
(3) the entry of the order was fundamentally unfair.
8 U.S.C. § 1326(d).
This court has not directly addressed the standard of review
for a collateral challenge under 8 U.S.C. § 1326(d) to a prior
order of deportation. The circuits that have addressed the
issue, however, are unanimous in deciding that de novo
review is appropriate. E.g., United States v. Zalaya, 293 F.3d
1294, 1297 (11th Cir. 2002) (holding that a district court’s
denial of a motion to dismiss an indictment on the basis of a
collateral challenge to the underlying deportation order “is an
issue of law to be reviewed de novo on appeal,” and noting
the agreement of the Second and Ninth Circuits). This
matches the standard applicable to a review of the district
court’s denial of a motion to dismiss an indictment on
grounds that involve questions of law. E.g., In re Ford, 987
F.2d 334, 339 (6th Cir. 1992) (“This court reviews de novo a
district court’s denial of a motion to dismiss an indictment on
the grounds of double jeopardy.”). We find these authorities
persuasive, and therefore will review the district court’s
denial of Martinez-Rocha’s motion de novo.
Martinez-Rocha admittedly did not exhaust his
administrative remedies when he waived his right to contest
the ground on which he was deportable. But he claims that
his waiver was invalid because he did not understand at the
time that he was, in fact, waiving his right to contest the
charges against him. See United States v. Mendoza-Lopez,
481 U.S. 828, 840 (1987) (holding that an alien’s waiver of
the right to apply for suspension of deportation was invalid
where it was not “considered or intelligent”); United States v.
Muro-Inclan, 249 F.3d 1180, 1183 (9th Cir. 2001) (“The
exhaustion requirement of 8 U.S.C. § 1326(d) cannot bar
collateral review of a deportation proceeding when the waiver
6 United States v. Rocha No. 03-5149
of right to an administrative appeal did not comport with due
process.”).
The district court, however, found that Martinez-Rocha’s
waiver was considered and intelligent. We will not reverse a
district court’s factual finding unless it is clearly erroneous.
United States v. Sykes, 292 F.3d 495, 497 (6th Cir.) (“A
district court’s determination that a waiver was knowingly
and voluntarily made is reviewed for clear error.”), cert.
denied, 123 S. Ct. 400 (2002).
Although Martinez-Rocha testified that he did not fully
understand the waiver because he did not speak “the whole
English,” he signed a form stating that he did not wish to
contest the charges that was read to him in both English and
Spanish. He also conferred with INS agents and with the
Mexican consulate prior to being deported, and his waiver
was consistent with the testimony of Agent Galvan that
Martinez-Rocha had expressed a desire to return to Mexico as
soon as possible. In addition, Martinez-Rocha’s testimony in
the district court reflects his command of English. The
district court therefore did not clearly err in crediting the
testimony of Agent Galvan and the documentary evidence
that Martinez-Rocha’s waiver was a knowing and considered
choice. See Anderson v. Bessemer City, 470 U.S. 564, 574
(1985) (“Where there are two permissible views of the
evidence, the factfinder’s choice between them cannot be
clearly erroneous.”); United States v. Cruse, No. 01-5874,
2003 WL 344337, at *5 (6th Cir. Feb. 7, 2003) (holding that
the district court did not clearly err in finding that the college-
educated defendant had knowingly and intelligently waived
his rights under Miranda v. Arizona, 384 U.S. 436 (1966), by
signing a waiver form so indicating, despite the defendant’s
testimony that “he neither read nor understood the waiver
form before signing it”); United States v. Rangel de Aguilar,
308 F.3d 1134, 1138-39 (10th Cir. 2002) (holding that a
defendant had no basis for collateral attack on her deportation
order where the evidence indicated that she had made a
considered and intelligent waiver of her right to contest the

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No. 03-5149 United States v. Rocha 7
deportation proceedings), cert. denied, 123 S. Ct. 1372
(2003).
At oral argument, counsel for Martinez-Rocha contended
that the waiver could not have truly been a considered choice
because other immigration options were available to
Martinez-Rocha in the summer of 2000 that did not have the
negative consequences of a deportation order. But a waiver
need not be the best choice under the circumstances in order
for it to be “considered and intelligent.” See United States v.
Turner, 287 F.3d 980, 984 (10th Cir. 2002) (acknowledging
that “[t]he use of the word intelligent within the standard used
to determine an effective waiver of counsel gives this court
some pause,” but concluding that “knowingly and
intelligently waiving the right to counsel is different from
making a wise decision”); cf. United States v. Peck, No. 01-
5586, 2003 WL 1465563, at *4 (6th Cir. Mar. 19, 2003)
(“Although the decision to represent himself may not have
been in [the defendant’s] best interest, the record supports the
district court’s conclusion that [the defendant] was competent
to make that choice, and that he did so knowingly and
voluntarily.”). Because the district court did not clearly err in
deciding that the waiver at issue here met those criteria,
Martinez-Rocha has failed to satisfy any of the requirements
of 8 U.S.C. § 1326(d). He is therefore barred from
collaterally attacking his prior order of deportation.
III. CONCLUSION
For all of the reasons set forth above, we AFFIRM the
judgment of the district court.

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