                                                                      FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                November 4, 2011
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                   Clerk of Court
                            FOR THE TENTH CIRCUIT


    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                             Nos. 11-5056 & 11-5057
                                             (D.C. Nos. 4:10-CR-00187-CVE-1 &
    ANTONIO MOLINA-CHAVEZ, a/k/a                   4:10-CR-00197-CVE-1)
    Antonio Chavez, a/k/a Vicente de la                  (N.D. Okla.)
    Cruz-Cabrera, a/k/a Vicente dela
    Cruz-Cabrera, a/k/a Antonio Molina,

                Defendant-Appellant.


                            ORDER AND JUDGMENT *


Before KELLY, Circuit Judge, PORFILIO, Senior Circuit Judge, and
MATHESON, Circuit Judge.



         In 2009, defendant Antonio Molina-Chavez pled guilty in the District of

New Mexico to illegally reentering the United States. See 8 U.S.C. § 1326(a).

The United States District Court for the District of New Mexico sentenced him to



*
       After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
eight months in prison for this offense, to be followed by a two-year term of

supervised release. In November 2009, he completed his prison term and the

Department of Homeland Security removed him to Mexico.

        A year later, before his supervised release term had expired,

Mr. Molina-Chavez was arrested in Tulsa, Oklahoma on a public intoxication

charge. This arrest had two consequences relevant here. First,

Mr. Molina-Chavez was charged in federal court with illegally reentering the

United States. He pled guilty to that charge and was sentenced by the United

States District Court for the Northern District of Oklahoma to ten months’

incarceration. The district court subsequently denied his motion to withdraw his

guilty plea. Second, the district court revoked his 2009 supervised release and

sentenced him to an additional five months in prison, to be served concurrently

with the ten-month sentence on the illegal reentry charge.

        On appeal from both convictions, Mr. Molina-Chavez argues that the

Northern District of Oklahoma court should have (1) permitted him to withdraw

his guilty plea, and (2) dismissed the order revoking his supervised release. He

contends that ambiguities in his 2009 New Mexico sentence provided him with

authorization to reenter the United States legally. We disagree, and therefore

affirm the district court’s judgment and sentence for illegal reentry. We dismiss

Mr. Molina-Chavez’s appeal concerning revocation of his supervised release as

moot.

                                         -2-
                                 BACKGROUND

      Mr. Molina-Chavez’s 2009 sentence, entered in Case No. 2:09CR01574-

001BB in the District of New Mexico, included terms and conditions of

supervised release that he characterizes as ambiguous. First, it provided that

“[u]pon release from imprisonment, [Mr. Molina-Chavez] shall be on supervised

release for a term of 2 years unsupervised.” Supp. R. at 11. It further provided

that he “must not reenter the United States without legal authorization.” Id. at 12.

The supervised release terms also required him to “report to the probation office

in the district to which the defendant is released within 72 hours of release from

the custody of the Bureau of Prisons.” Id. at 11. Thereafter, he was to “report to

the probation officer and . . . submit a truthful and complete written report within

the first five days of each month.” Id. And he was forbidden from “leav[ing] the

judicial district without the permission of the court or probation officer.” Id.

      Mr. Molina-Chavez was removed to Mexico on November 20, 2009, after

serving the custodial portion of his sentence. On October 29, 2010, prior to

expiration of his two-year supervised release term, an officer of the Tulsa Police

Department arrested him for public intoxication in Tulsa. As a result of this

incident, the Federal Probation Office filed a petition seeking revocation of his

supervised release, alleging that he had violated its terms both by reentering the

country and by committing the crime of public intoxication. Jurisdiction over the




                                         -3-
term of supervised release was transferred to the Northern District of Oklahoma.

The case was filed in that district and assigned No. 10-CR-197-CVE.

      In the meantime, Mr. Molina-Chavez was also named in an indictment in

the Northern District of Oklahoma (No. 10-CR-187-CVE), alleging that he had

been found in the United States without permission after having been previously

removed from this country. See 8 U.S.C. § 1326(a). This indictment was also

based upon his arrest and confinement in the Tulsa incident. On January 11,

2011, he pled guilty to the indictment. About two months later,

Mr. Molina-Chavez moved to withdraw his guilty plea, alleging that he was

“legally innocent” of the offense charged. The district court denied his motion.

      On February 28, 2011, the Probation Office filed an Order seeking

revocation of Mr. Molina-Chavez’s Supervised Release in No. 10-CR-197-CVE.

On March 10, 2011, the district court denied his motion to dismiss this Order. On

March 18 it found him in violation of the terms of his supervised release.

      The district court then consolidated the two offenses for sentencing

purposes. It sentenced Mr. Molina-Chavez to ten months for the unlawful reentry

offense in No. 10-CR-187-CVE, and five months on revocation of supervised

release in No. 10-CR-197-CVE, to run concurrently with the ten-month sentence.

His appeals from his sentences have been consolidated for purposes of appellate

disposition.




                                        -4-
                                    ANALYSIS

      1. No. 11-5056 (Unlawful Reentry)

      A defendant may withdraw a guilty plea before sentencing if he “can show

a fair and just reason for requesting the withdrawal.” Fed. R. Crim. P.

11(d)(2)(B). Courts consider seven factors to determine if the defendant has

satisfied that burden: “(1) whether the defendant has asserted his innocence,

(2) prejudice to the government, (3) delay in filing defendant’s motion,

(4) inconvenience to the court, (5) defendant’s assistance of counsel, (6) whether

the plea is knowing and voluntary, and (7) waste of judicial resources.” United

States v. Gordon, 4 F.3d 1567, 1572 (10th Cir. 1993). This court reviews the

district court’s denial of a motion to withdraw a guilty plea for an abuse of

discretion. United States v. Wade, 940 F.2d 1375, 1376 (10th Cir. 1991).

“Although a motion to withdraw a plea prior to sentencing should be freely

allowed, we will not reverse a district court’s decision unless the defendant can

show that the court acted unjustly or unfairly.” United States v. Hamilton,

510 F.3d 1209, 1213-14 (10th Cir. 2007) (quotations omitted).

      In denying Mr. Molina-Chavez’s motion, the district court relied primarily

on the first and third factors listed above: assertion of innocence and timeliness.

In challenging the district court’s disposition, he now argues that he is legally

innocent of unlawfully reentering the United States and therefore has a fair and

just reason to withdraw his guilty plea. He further contends that his motion was

                                         -5-
timely because his counsel was unaware of this legal argument until after his

probation officer gave counsel a copy of the Order on Supervised Release on

March 1, 2011. Counsel filed his motion to withdraw the guilty plea two days

later.

               A. Legal Innocence

         Mr. Molina-Chavez bases his legal innocence claim on alleged ambiguities

in the terms of his 2009 supervised release, coupled with an assertion that the rule

of lenity applies to those terms. At the outset, we must consider whether the rule

of lenity applies. “When confronted with an ambiguous criminal statute, the rule

of lenity instructs courts to interpret those statutes in favor of the accused.”

United States v. Metzener, 584 F.3d 928, 934 (10th Cir. 2009) (quotation

omitted). The rule of lenity is a principle of statutory construction, however, and

this court has specifically held that it is not applicable to the construction of an

order of supervised release. See id. 1 Mr. Molina-Chavez’s argument that the rule




1
       Mr. Molina-Chavez contends that since Metzener, we have adopted a
broader role for the rule of lenity, citing United States v. Huyoa-Jimenez,
623 F.3d 1320, 1323 n.3 (10th Cir. 2010). In Huyoa-Jimenez, however, we
merely stated that certain provisions of the Federal Sentencing Guidelines were
not so ambiguous as to require application of the rule of lenity. In that case, we
did not actually apply the rule of lenity to the Guideline sections in question. In
any event, the Guidelines resemble criminal statutes much more closely than do
the terms of a supervised release order. Moreover, nothing in Huyoa-Jimenez
suggests an intention to overrule the more specific rule in Metzener.

                                          -6-
of lenity should apply to the supervised release terms and conditions in his 2009

sentence therefore fails as a matter of law.

      This is not the end of our analysis, however. The broader issue before us is

whether the district court correctly rejected Mr. Molina-Chavez’s claim of legal

innocence based on alleged ambiguities in the supervised release terms. See id.

(reviewing district court’s construction of supervised release terms after rejecting

application of rule of lenity). We conclude that it did.

      Mr. Molina-Chavez argues that the 2009 conditions of supervised release

provided him with “prior authorization” to reenter the United States, thus

rebutting an essential element of the crime of unlawful reentry. Aplt. Opening

Br. at 27. Although the supervised release order prohibited him from reentering

the United States, it also required him to remain within the District of New

Mexico and to report to his probation officer there. Thus, Mr. Molina-Chavez

contends that the order contains an ambiguity concerning whether he had

permission to be in the United States. This ambiguity, he argues, is fatal to his

prosecution for unlawful reentry. But this argument clearly fails. We agree with

the district court that the terms and conditions did not create an ambiguity that

makes Mr. Molina-Chavez legally innocent of the crime to which he pled guilty.

      The special conditions of supervision informed Mr. Molina-Chavez that

he “must not reenter the United States without legal authorization.” Supp. R.

at 12. The illegal reentry statute requires that the Attorney General expressly

                                         -7-
consent to an alien’s reapplication for admission. 8 U.S.C. § 1326(a)(2). 2

Mr. Molina-Chavez has failed to establish that the standard terms and conditions

prohibiting him from departing from the judicial district and requiring him to

report to his probation officer in the United States provided such express

consent. 3 But even if these conditions somehow created an ambiguity concerning




2
       “On March 1, 2003, the Immigration and Naturalization Service ceased to
exist as an agency within the Department of Justice, and its enforcement functions
were transferred to the Department of Homeland Security.” United States v.
Sandoval, 390 F.3d 1294, 1296 n.2 (10th Cir. 2004). The Secretary of Homeland
Security is therefore the appropriate official to grant consent under § 1326(a)(2),
and the reference to the Attorney General in that statute is deemed to refer to the
Secretary. See United States v. Palomino Garcia, 606 F.3d 1317, 1323 n.6
(11th Cir. 2010).
3
       In the district court, Mr. Molina-Chavez argued that the terms of his
supervised release provided him with authority to enter the United States.
R. Vol. I at 37-38. The government responded that only the Secretary of
Homeland Security could grant him such authority. Mr. Molina-Chavez then
retreated to a more subjective understanding of his “legal innocence” claim,
stating that “a person untrained in the law” like himself would be justified in his
belief that the district court’s order gave him permission to reenter the United
States to report to his probation officer. Id. at 48. But the district court rejected
this argument, concluding that his alleged subjective understanding did not
motivate his actions because it would be unreasonable to infer that he intended
“to report to his probation officer in Albuquerque, New Mexico” when found in
Tulsa, Oklahoma. Id. at 55 n.1.
       It is therefore not surprising that Mr. Molina-Chavez has returned to an
argument that “it makes no difference . . . how he in fact understood the
documents” or whether he believed he was guilty, because the terms of supervised
release were ambiguous as a matter of law; that is, objectively ambiguous. Aplt.
Opening Br. at 27. He appears to have abandoned his “subjective understanding”
argument. In any event, he could not reasonably have believed the supervised
release order permitted him to be in Tulsa, Oklahoma when and where he was
found.

                                         -8-
whether he had the Attorney General’s authorization, his claim still fails under

the particular facts and circumstances of this case.

      The only claim he can possibly make to have legal authorization to reenter

the United States based on his 2009 sentence lies with its mandate to report to a

probation officer. The conditions of supervision required that he report “to the

probation office in the district to which [he] is released within 72 hours of release

from the custody of the Bureau of Prisons [B.O.P.].” Supp. R. at 11. But his

unlawful presence in Tulsa, Oklahoma did not occur within 72 hours of his

release. Nor was he released from B.O.P. custody within the Northern District of

Oklahoma, where he was later found. 4

      The standard conditions of supervision also anticipated monthly reports

to a probation officer within the first five days of each month. But

Mr. Molina-Chavez was arrested in a different judicial district, at the end of the

month. Simply put, the terms and conditions of supervised release

unambiguously did not grant Mr. Molina-Chavez permission to be present in

Tulsa, Oklahoma on October 29, 2010. 5 Instead, they prohibited him from

4
      The further prohibition on leaving the judicial district “without the
permission of the court or probation office,” Supp. R. at 11, obviously offers
Mr. Molina-Chavez no help. He was not found within the District of New
Mexico, and he has failed to show he had any permission from the court or the
probation office to leave that district to travel to Tulsa, Oklahoma, which lies
outside the District of New Mexico, when he was found there.
5
      Our conclusion on this point, which is based on the written sentencing
                                                                     (continued...)

                                         -9-
reentering the United States without authorization. There is no evidence he had

authorization to be present in Tulsa, whether under the supervised release terms,

or otherwise. He has therefore failed to make a colorable claim of legal

innocence concerning the illegal reentry charge to which he previously pled

guilty.

            B. Timeliness of Motion to Withdraw

      Mr. Molina-Chavez’s motion to withdraw his guilty plea fails for another

reason. He claims that his counsel was unaware of the alleged ambiguity in the

terms of his supervised release until his probation officer gave counsel a copy of

the Order on Supervised Release on March 1, 2011. But as the district court

found:

      Defendant received discovery from the government on December 14,
      2010, and the discovery included a copy of the order of supervised
      release order in the [2009] New Mexico case. . . . Thus, defendant



5
 (...continued)
information contained in the record, makes it unnecessary to supplement the
record with the transcript of the New Mexico District Court sentencing hearing,
held September 3, 2009 in Case No. 2:09-cr-01574BB. The government contends
that the district court’s comments during this sentencing hearing should have
made it crystal clear to Mr. Molina-Chavez that he was not permitted to return to
the United States and that if he did so, he would be immediately arrested.
Mr. Molina-Chavez objects to supplementation of the record, contending that the
2009 sentencing transcript was not part of the district court record in this case.
We need not resolve this dispute concerning supplementation of the record, for
the record we have clearly supports the government’s contentions, without the
need to examine the oral transcript of sentencing. The government’s motion to
supplement the record with the 2009 sentencing transcript is therefore DENIED.

                                       -10-
      knew or should have known of his alleged defense before he entered
      his guilty plea on January 7, 2011.

R. Vol. I at 55.

      These findings of fact were not clearly erroneous. The district court

therefore did not abuse its discretion in determining that the delay in filing his

motion to withdraw weighed against granting the motion.

             C. Conclusion

      The district court’s order denying Mr. Molina-Chavez’s motion to withdraw

his guilty plea was not an abuse of discretion. We therefore affirm that order.

      II. No. 11-5057, Revocation of Supervised Release

      In Case No. 11-5057, Mr. Molina-Chavez challenges the revocation of his

term of supervised release and his resulting five-month sentence. As a threshold

matter, the government argues that his appeal from this conviction is moot and

should therefore be dismissed. It is uncontested that Mr. Molina-Chavez has

completed serving his five-month sentence. The issue is “whether sufficient

collateral consequences flow from the underlying judgment and the completed

sentence to save the appeal from mootness.” United States v. Meyers, 200 F.3d

715, 718 (10th Cir. 2000).

      Mr. Molina-Chavez makes a single argument concerning mootness. He

contends that because the two-year term of supervised release imposed in the

District of New Mexico was only partially revoked, “it could still form a basis for


                                         -11-
another prison term in the future.” Aplt. Reply Br. at 4-5. Therefore, he claims,

“the issue of its ambiguity . . . is not moot.” Id. at 5. To the extent that this

argument raises a challenge to the five-month term on revocation of supervised

release that he has already served (as opposed to raising a collateral attack on the

2009 supervised release terms themselves, which are not before us in this appeal),

it envisages only collateral consequences flowing from the effect of the

revocation order on a possible future sentence. We have made it clear, however,

that such consequences do not rise to the level of collateral consequences

sufficient to avoid mootness:

      [W]hen a defendant appeals the revocation of his supervised release
      and resulting imprisonment and has completed that term of
      imprisonment, the potential impact of the revocation order and
      sentence on possible later sentencing proceedings does not constitute
      a sufficient collateral consequence to defeat mootness.

Meyers, 200 F.3d at 722.

      Like the defendant in Meyers, Mr. Molina-Chavez has failed to show

collateral consequences sufficient to avoid mootness. His appeal in No. 11-5057

is therefore dismissed as moot.




                                          -12-
                                CONCLUSION

      In Case No. 11-5056, the judgment of the district court is AFFIRMED.

We DISMISS AS MOOT the appeal in Case No. 11-5057. The government’s

motion to supplement the record with the sentencing transcript from

Mr. Molina-Chavez’s 2009 New Mexico sentencing hearing is DENIED.


                                                  Entered for the Court



                                                  Scott M. Matheson, Jr.
                                                  Circuit Judge




                                      -13-
