                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                    UNITED STATES CO URT O F APPEALS
                                                                        June 20, 2007
                                TENTH CIRCUIT                       Elisabeth A. Shumaker
                                                                        Clerk of Court

 UNITED STATES OF AM ERICA,

              Plaintiff-Appellee,

 v.                                                     No. 06-4096
                                                (D.C. No. 2:05-CR-296-DKW )
 ODILON M ENDOZA-V ELASCO,                                (D. Utah)

              Defendant-Appellant.



                           OR D ER AND JUDGM ENT *


Before L UC ER O, M cKA Y, and HO LM ES, Circuit Judges.


      Defendant Odilon M endoza-Velasco was charged with illegal reentry by a

deported alien in violation of 8 U.S.C. § 1326(a). Defendant moved to dismiss

the indictment on the ground that his prior deportation proceeding violated his

Fifth Amendment due process rights. W hen that motion was denied, Defendant

conditionally pleaded guilty and was sentenced to forty-six months’ imprisonment

with a twenty-four month period of supervised release. Defendant now appeals

the denial of his motion and the reasonableness of his sentence.




      *
        This order and judgment is not binding precedent, except under the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.
                                   B ACKGROUND

      In M ay 2000, Defendant was arrested in Southern Arizona for transporting

eight illegal aliens. 1 According to Defendant, he intended only to provide

transportation to two female aliens w ho had sustained minor injuries during their

border crossing, but the other six aliens piled into his car and refused to exit. H e

was defended by counsel who, although noting Defendant’s case was a “close”

one, advised Defendant to plead guilty in exchange for a sentence of time served.

Defendant, then a legal permanent resident intent on remaining in the United

States, asserts that he only pleaded guilty because his attorney advised him that

Section 212(c) of the Immigration and Nationality Act would likely prevent his

deportation. That provision, however, had been repealed in 1996.

      At the subsequent deportation hearing, Defendant elected to proceed

without counsel despite the immigration judge’s offers to delay the proceedings in

order for Defendant to obtain retained or pro bono counsel. The IJ then

questioned Defendant about his § 1324(a)(1)(A)(ii) conviction. Defendant

acknowledged the conviction but disagreed that his circumstances made it a

deportable offense. According to Defendant, because he only transported the



      1
        According to 8 U.S.C. § 1324(a)(1)(A)(ii), it is a crime for any person
who, “knowing or in reckless disregard of the fact that an alien has come to,
entered, or remains in the United States in violation of law, transports, or moves
or attempts to transport or move such alien within the United States by means of
transportation or otherw ise, in furtherance of such violation of law.”

                                         -2-
aliens for “humanitarian reasons” rather than for money, he should not have faced

the possibility of deportation. (Doc. 10 at 9.) The IJ informed Defendant: “The

law changed many years ago” and “no longer requires the federal Government . . .

to prove that you transported anybody for monetary reasons. . . . Even if you

transported them for humanitarian reasons, it is still a violation of federal law.”

(Id.)

        Nevertheless, because of Defendant’s protestation, the IJ requested, and the

government produced, Defendant’s conviction record. The IJ then explained the

nature of Defendant’s conviction as well as the implications of conviction on

Defendant’s deportability. Defendant stated that he understood and conceded his

conviction.

        After determining that no other exceptions applied, the IJ offered

Defendant the chance to address the court before it handed down a final decision.

Defendant was cut off, however, when he began to speak on his life in the United

States. W hen the IJ informed Defendant that the court was restricted by law from

considering the effects of deportation on his family and that no other exceptions

applied to Defendant, the following colloquy occurred:

        A.    So, there is no law or code that would allow me cancellation
        of deportation?

        Q.     You are not eligible for cancellation of removal because of
        your conviction. Because it is an aggravated felony, you don’t
        qualify for cancellation of removal as a statutory bar or [probation]
        for cancellation.

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      A.     So there’s nothing I can do?

      Q.     Unless you can get a pardon from the President of the United
      States, there is nothing you can do. At least not within my power to
      grant you.

(Id. at 14-15.)

      Defendant was deported, but later illegally reentered the U .S. Thereafter,

he w as arrested and charged with illegal reentry. After denying Defendant’s

motion to dismiss the indictment, the district court accepted D efendant’s

conditional plea and sentenced him. At sentencing, Defendant objected to the

pre-sentence report’s recommendation of a 16-point enhancement for Defendant’s

illegal transportation conviction. Defendant argued that the facts underlying his

conviction did not warrant such harsh treatment. That objection was overruled,

and Defendant was sentenced to forty-six months’ imprisonment, the low end of

the recommended Sentencing Guidelines’ range. This appeal followed.


                                     A NALYSIS

A.    Due Process

      Defendant argues that his Fifth Amendment procedural due process rights

were violated because the IJ’s “presidential pardon” comment amounted to an

“affirmatively misleading statement about the relief available,” thereby rendering

his deportation proceeding fundamentally unfair. (D ef.’s Opening Br. at 14.)

Specifically, Defendant asserts that the IJ’s “incorrect legal advice” precluded



                                         -4-
him from challenging his § 1324 conviction via a § 2255 habeas petition. (Id. at

12.)

       “W hen a previous deportation proceeding is attacked on constitutional

grounds, w e are presented w ith a mixed question of law and fact, which we

review de novo.” United States v. Aguirre-Tello, 353 F.3d 1199, 1204 (10th Cir.

2004) (en banc). Defendant bears the burden of proving that the underlying

deportation hearing was fundamentally unfair, which requires showing that he

was prejudiced. Id. Deportation proceedings are afforded a “presumption of

regularity.” Id.

       As w e have previously noted, it is an “undisputed proposition that a

potential deportee is entitled in his deportation proceeding to procedural due

process under the Fifth Amendment, designed to ensure that the proceeding is

fundamentally fair.” Id. W e do not believe, however, that the IJ’s comment

violated Defendant’s procedural due process rights.

       The comment was made after an extensive discussion regarding the nature

of Defendant’s conviction, which ended when Defendant conceded the conviction.

At that point, the discussion turned to Defendant’s deportation. The comment

was made in the context of exceptions to deportation, and pertained specifically to

the “possibility of cancellation.” 2 The potential availability of habeas relief from



       2
           Defendant initially argues that the use of an interpreter at the deportation
                                                                           (continued...)

                                            -5-
the underlying conviction was not applicable in this context, and we see no reason

why the IJ should have interpreted the question in that manner. As the district

court recognized, where the IJ had been given no “suggestion, indication, or

slightest hint that there might be some legitimate basis for challenging the

underlying conviction,” the IJ could not reasonably be expected to intuit a right to

habeas relief, particularly after the conversation had “shifted from the

circumstances surrounding [the] underlying conviction to the consequences of the

criminal conviction.” (D oc. 14 at 10-11 (M em. Decision & Order Den. Def.’s

M ot. to Dismiss at 10-11).) Nor does D efendant’s follow-up question, “So there’s

nothing I can do,” alter the context. That question relates directly to his

cancellation-specific question, not to a broader context.


B.    Sentencing
      Defendant contends that his forty-six month sentence is unreasonable given

his lack-of-profit motive in the underlying alien transportation offense. He argues



      2
        (...continued)
hearing prejudiced his ability to fully comprehend the colloquy, an argument that
Defendant failed to raise in his motion to dismiss the indictment. See Walker v.
M ather (In re Walker), 959 F.2d 894, 896 (10th Cir. 1992) (refusing to take up
issue raised for first time on appeal). Recognizing this problem, Defendant
switches tack and argues not that Defendant “did not understand what was going
on but that the court should not expect a pro se immigrant to litigate his case with
the same vigor as a law -trained attorney.” (D ef.’s Reply Br. at 5.) As a result,
“[a]ny contextual ambiguity should be resolved in favor of this uncounseled
alien.” (Id.) The record contains no evidence reflecting Defendant’s confusion.
To the contrary, Defendant more than adequately represented his position to the
IJ. M oreover, as explained herein, we find no “contextual ambiguity.”

                                         -6-
that the district court erred by not varying downward because it failed to examine

the § 3553(a) factors. Sentencing decisions are reviewed de novo, and sentences

within the Guidelines’ range are entitled to a presumption of reasonableness.

United States v. Kristl, 437 F.3d 1050, 1054 (10th Cir. 2006).

      According to Defendant, the district court’s error is evident from its

statement that, despite the “humanitarian” justification for his crime, sentencing

Defendant below the recommended Guidelines’ range would require it to “ignore”

or “set aside” the underlying conviction. (Sent’g Tr. at 14.) As above, context is

key: Defendant’s argument ignores the context in which the district court made

those statements.

      After hearing from both parties’ counsel on the variance issue, the district

court commended defense counsel but decided to adhere to the recommendation

of the pre-sentence report pending any statement by Defendant. Defendant then

stated:

      I know that I committed a crime in 2000. I w ill take it as a crime. I
      was attempting to help my people. In the situation that I saw them
      in, anyone would have done it. The situation that they were in was
      really sad and because of the women, I felt my heart broken. And
      the other situation is, the men jumped into my van, and I couldn’t
      just get them out. I told them I was going to have problems, but I
      couldn’t do anything else.

(Id.) The district court stated that Defendant’s argument would require it to

“ignore” and “set aside” an otherwise valid conviction not because it misapplied §

3553, but because it interpreted Defendant’s arguments as contesting the elements

                                         -7-
of the § 1324(a)(1)(A)(ii) conviction. The district court stated, “W hat he’s

arguing to me is the fact that [the other six alien males] forced their way into the

vehicle.” (Id. at 15.) This confusion was then corrected by defense counsel, who

noted that D efendant was not contesting the validity of the conviction.

      It is clear that the district court did consider the § 3553(a) factors. The

district court noted that, even after reading the parties’ briefs concerning

Defendant’s motion for downward departure, it did not see a “basis” under § 3553

to vary from the Guidelines’ range. (Id. at 4.) As D efendant’s own brief points

out, neither § 1324(a)(1)(A)(ii) nor U.S.S.G. § 2L1.2(b)(1)(A)(vii) reflect any

profit-motive requirement. That limitation was eliminated from the applicable

Sentencing Guidelines’ provision in 2003. W hile Defendant argues that

his“humanitarian intent” nonetheless warrants variance from the G uidelines’

range, we note that Defendant did not transport just the two injured illegal aliens,

but also six, uninjured, illegal aliens. The district court stated that with such a

“serious” crime “[t]here is no question about knowing the gravity of [it] when it

happens. You don’t just think: I’ve got a nice hitchhiker that needs a ride for a

couple of miles.” (Id. at 13.) In addition, the pre-sentence report listed

Defendant’s four DUI convictions, drug-related conviction, domestic assault

conviction, and use of nine aliases, two different social security numbers, and

three different dates of birth. Consequently, we do not believe that Defendant has

rebutted the presumption of reasonableness attached to his sentence. M oreover,

                                          -8-
even absent the presumption, we would still find Defendant’s sentence

reasonable.


AFFIRM ED.

                                             Entered for the Court



                                             M onroe G. M cKay
                                             Circuit Judge




                                       -9-
