                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-7-2003

USA v. Munoz-Valencia
Precedential or Non-Precedential: Non-Precedential

Docket 01-3976




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"USA v. Munoz-Valencia" (2003). 2003 Decisions. Paper 754.
http://digitalcommons.law.villanova.edu/thirdcircuit_2003/754


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                                                               NOT PRECEDENTIAL

                         UNITED STATES COURT OF APPEALS
                              FOR THE THIRD CIRCUIT


                                         No. 01-3976




                               UNITED STATES OF AMERICA

                                               v.

                              GUILLERMO MUNOZ-VALENCIA,
                                                    Appellant




                     On Appeal from the District Court of the Virgin Islands
                            Division of St. Thomas and St. John
                              D.C. Criminal No. 01-cr-00108
                               (Honorable Thomas K. Moore)




                                  Argued November 8, 2002

                  Before: SCIRICA, ALITO and RENDELL, Circuit Judges

                                    (Filed: March 7, 2003)


DOUGLAS J. BEEVERS, ESQUIRE (ARGUED)
Office of Federal Public Defender
P.O. Box 1327, 51B Kongens Gade
Charlotte Amalie, St. Thomas
U.S. Virgin Islands 00804-1327

     Attorney for Appellant


BRUCE Z. MARSHACK, ESQUIRE (ARGUED)
Office of United States Attorney
1108 King Street, Suite 201
Christiansted, St. Croix
U.S. Virgin Islands 00820-4951

ANTHONY J. JENKINS, ESQUIRE
Office of United States Attorney
Federal Building & United States Courthouse
5500 Veterans Drive, Suite 260
Charlotte Amalie, St. Thomas
U.S. Virgin Islands 00802-6424

           Attorneys for Appellee




                                        OPINION OF THE COURT


SCIRICA, Circuit Judge.

           The principle issue in this sentencing guideline appeal is whether a United States

Sentencing Guideline § 2L2.2(b)(1) enhancement for being a previously deported illegal

alien applies to an alien who left the United States under voluntary departure. Also at issue

is the denial of credit for accepting responsibility under U.S.S.G. § 3E1.1(a). We will

affirm.1


   1
    At the direction of this Court, the parties advised whether Munoz-Valencia’s claims are
moot in light of the fact that, although he did not complete his three year supervisory
release term, Munoz-Valencia served twelve months in jail and seemed to have returned to
Columbia. Nonetheless, Munoz-Valencia faces collateral consequences from his
conviction which bars mootness. In Steele v. Blackman, 236 F.3d 130 (3d Cir. 2001), we
held an erroneous conviction of an aggravated felony has continuing and serious legal
consequences, including a permanent bar to entry into the United States. Thus, in an appeal
where, if successful, appellant’s status will change from an aggravated felon to a non-
                                                                                        (continued...)

                                                       2
                                                    I.

        Guillermo Munoz-Valencia is a Columbian citizen who was arrested on December

14, 2000 while attempting to board an airplane traveling from St. Thomas, Virgin Islands to

New York. Munoz-Valencia’s arrest occurred after authorities discovered he was carrying

$90,000 of undeclared currency and using a false resident alien identification card. Upon

his arrest, Munoz-Valencia admitted he was an illegal alien and previously used the false

identification card to enter the United States through Texas in July 2000. Munoz-Valencia

pled guilty to violating 18 U.S.C. § 1546(a) for fraud and misuse of documents.

        A presentence report revealed Munoz-Valencia was previously ordered deported on

October 25, 1998. The immigration court issued a superseding order of voluntary

departure, and Munoz-Valencia complied by returning to Columbia on November 17, 1998.

On this basis, the presentence report recommended a two level enhancement under

U.S.S.G. § 2L2.2(b)(1) because Munoz-Valencia was “an unlawful alien who ha[d] been

deported (voluntarily or involuntarily) on one or more occasions prior to the instant

offense.” U.S.S.G. § 2L2.1(b)(1). Munoz-Valencia did not object to the two level

enhancement at the sentencing hearing.




   1
     (...continued)
aggravated felon, collateral consequences prevent the issue from being moot. See id. In
this case, Munoz-Valencia is an aggravated felon as convicted. If successful on appeal he
would be re-sentenced to a non-aggravated felony conviction. Thus, the issues before us
are not moot.

                                                    3
        The District Court adopted the recommendation of the presentence report and

imposed a two level enhancement for a prior deportation under U.S.S.G. § 2L2.2(b)(1).

The court also found that Munoz-Valencia had not accepted responsibility for the offense

under U.S.S.G. § 3E1.1(a). As a result, Munoz-Valencia was sentenced to twelve months of

imprisonment and three years of supervised release. Munoz-Valencia filed a motion to

correct his sentence under Fed. R. Crim. P. 35(c), which was denied. This appeal

followed.2

                                                     II.

        Generally, we exercise plenary review over the interpretation of sentencing

guidelines. United States v. McKenzie, 193 F.3d 740, 742 (3d Cir. 1999). But where an

appellant does not object, we review for plain error. United States v. Cefaratti, 221 F.3d

502, 512 (3d Cir. 2000). Because Munoz-Valencia did not object to application of

U.S.S.G. § 2L2.2(b)(1), we review for plain error.3

   2
   We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). The District
Court exercised jurisdiction under 18 U.S.C. § 3231 and 48 U.S.C. § 1612.
   3
     Munoz-Valencia argues that he called attention to the issue of proper application of
U.S.S.G. § 2L2.2(b)(1) during the sentencing hearing on August 15, 2001 through his
lawyer’s statement: “We have also . . . noticed possible arguments that . . . I’ve waived,
possibly, the enhancement for a deportation. This defendant was voluntarily deported. I’m
not, I couldn’t find authority either way whether or not it should apply or not, but I’m too
late on that. I can’t raise it.” This “objection” is insufficient for plenary review. Munoz-
Valencia also argues that his Rule 35(c) motion for correction of sentence filed October
10, 2001 was a sufficient objection for plenary review. We disagree. See Jones v. United
States, 527 U.S. 373, 388 (1999) (stating that a request for a jury instruction prior to the
jury retiring does not preserve an objection to the instruction actually given because, to
hold otherwise, “district judges would have to speculate on what sorts of objections might
                                                                                             (continued...)

                                                     4
        The defendant bears the burden of showing plain error. United States v. Olano, 507

U.S. 725, 734 (1993). “For there to be plain error, there must be an ‘error’ that is ‘plain’

and that ‘affects substantial rights.’ A deviation from a legal rule is ‘error.’ A ‘plain’ error

is one which is ‘clear’ or ‘obvious.’” United States v. Jake, 281 F.3d 123, 132 (3d Cir.

2002) (quoting United States v. Russell, 134 F.3d 171, 180 (3d Cir. 1998)). Munoz-

Valencia argues the District Court erred when it ordered a two level enhancement because §

2L2.2(b)(1) does not apply to aliens who have left the United States under a grant of

voluntary departure.4 We will affirm.

        United States Sentencing Guideline § 2L2.2(a) establishes a base offense level of

eight for persons found guilty of violating 18 U.S.C. § 1546, which proscribes, among

other things, the fraudulent misuse of documents authorizing entry into or stay within the

United States. Under U.S.S.G. § 2L2.2(b)(1), a two level enhancement applies “[i]f the

defendant is an unlawful alien who has been deported (voluntarily or involuntarily) on one

or more occasions prior to the instant offense.” The sentencing guidelines do not define

the phrase “deported (voluntarily or involuntarily).” But we can decipher its definition by

giving its words their plain, natural, and commonly understood meaning. See Hartford

   3
    (...continued)
be implemented through a request for an instruction and issue rulings on ‘implied’
objections that a defendant never intends to raise. Such a rule would contradict Rule 30's
mandate that a party state distinctly his grounds for objection . . . our decisions instead have
held that an appellate court may conduct a limited review for plain error.”).
   4
    Absent the two level enhancement, Munoz-Valencia’s guideline offense level would
have been eight, meaning he would have received a sentence of no more than six months
imprisonment.

                                                      5
Underwriters Ins. Co. v. Union Planters Bank, N.A., 530 U.S. 1, 8 (2000); United States v.

Romo-Romo, 246 F.3d 1272, 1275 (9th Cir. 2001).

        An alien may depart the United States at his own expense if the Attorney General so

permits after an immigration judge has entered an order granting voluntary departure in lieu

of removal and has found that the alien:

        [H]as been physically present in the United States for a period of at least one
        year immediately preceding the date the notice to appear was served . . . is,
        and has been, a person of good moral character for at least 5 years
        immediately preceding the alien’s application for voluntary departure . . . is
        not deportable under section 1227(a)(2)(A)(iii) or section 1227(a)(4) of this
        title . . . [and] has established by clear and convincing evidence that the alien
        has the means to depart the United States and intends to do so.

8 U.S.C. § 1229c(b)(1).

        An alien who departs this country under a formal deportation order is excludable

from the country for five years, 8 U.S.C. § 1182, and commits a felony if he or she returns

without permission. 8 U.S.C. § 1326; see Cunanan v. I.N.S., 856 F.2d 1373, 1374 n.1 (9th

Cir. 1988); 1 Bill Ong Hing, Handling Immigration Cases 394 (2d ed. 1995). A grant of

voluntary departure, on the other hand, is a form of discretionary relief which allows a

deportable alien to leave the United States without suffering these consequences. Cunanan,

856 F.2d at 1374 n.1. In other words, an alien who voluntarily departs the United States

may apply for immediate re-entry.5 But a grant of voluntary departure does not exclude a


   5
    Richard A. Boswell, Immigration and Nationality Law 619 (3d ed. 2000) (“Voluntary
departure assures that the person who leaves the country (notwithstanding the fact that she
has been found to be deportable by an immigration judge) may return to the United States,
                                                                                          (continued...)

                                                     6
deportable alien from all consequences of illegal entry or stay within this country. See

Mrvica v. Esperdy, 376 U.S. 560 (1964). Thus, in some situations, a deportable alien’s

voluntary departure may be treated as a deportation. Id.

        In Mrvica, a petitioner was under a deportation order when he departed the United

States aboard a ship that sailed to Chile in 1942. Id. The ship returned to the United States

shortly thereafter, where petitioner remained. Id. New deportation proceedings

commenced and petitioner was again found subject to deportation but was granted the

privilege of voluntary departure in a final order in 1954. Id. at 561. In 1959, following

other proceedings, petitioner was ordered deported to Yugoslavia. Id. at 562. His

application for status of a permanent resident under § 249 of the Immigration and

Nationality Act was denied on the ground that he departed the United States in 1942. Id.




   5
     (...continued)
if admissible, without having to seek the special permission of the Attorney General that is
required of persons returning within five years of their removal.”); Jacqueline P. Ulin, A
Common Sense Reconstruction of the INA’s Crime-Related Removal System: Eliminating
the Caveats From the Statue of Liberty’s Welcoming Words, 78 Wash. U. L. Q. 1549,
1565-66 (2000) (“Voluntary departure represents another example of discretionary relief
outlined in the INA. Its scope is more limited than the other INA relief provisions. Under
this type of relief, an alien who departs ‘voluntarily’ does so by leaving the United States
before the INS issues a formal removal order against him . . . . By engaging in a voluntary
departure, an alien can leave before the INS issues a removal order against him and thus
circumvents the ‘ineligible to return’ period.); Peter H. Schuck & John Williams,
Removing Criminal Aliens: The Pitfalls and Promises of Federalism, 22 Harv. J.L. & Pub.
Pol’y 367, 395 (1999) (“Because aliens who are not formally removed are eligible to apply
for re-entry immediately, voluntary departure was and remains perhaps the most sought-
after form of relief. The INS routinely uses it to encourage aliens not to contest
removal.”).


                                                    7
        Petitioner conceded he was ordered deported in 1942 and that his departure from

the United States to Chile executed the order of deportation. Id. at 563. The Supreme

Court said:

        There can be no doubt that this . . . point is correct. Legislation then
        applicable provided that “. . . any alien ordered deported . . . who has left the
        United States shall be considered to have been deported in pursuance of law,
        irrespective of the source from which the expenses of his transportation
        were defrayed or of the place to which he departed.”

Id. (citing Act of March 4, 1929, § 1(b), 45 Stat. 1551, 8 U.S.C. (1940 ed.) § 180 (b)).6

The Court continued:

        Any possible doubt of the import of this provision is removed by [legislative
        history] which explained . . . the Department of Labor has, in many cases,
        after a warrant of deportation has been issued, refrained from executing the
        warrant and deporting the alien, at the expense of the appropriation, to the
        country to which he might be deported, upon the condition that the alien
        voluntarily, at his own expense, leave the United States. Some doubt exists
        whether an alien so departing has been “deported.” Subsection (b) of section
        3 of the bill [the provision quoted above] therefore removes any possible
        doubt on this question by providing that in such cases the alien shall be
        considered to have been deported in pursuance of law.

Id. at 564.

        The alien in Mrvica was under a deportation order when he left the United States.

376 U.S. at 561. But the Court made clear that a voluntary departure from the United States

may be treated as a deportation. Id. at 563-64; see also United States v. Taofig Olabiyi

Blaize, 959 F.2d 850, 851 (9th Cir. 1992) (“This case presents a single straightforward

issue: If a person who is under a deportation order for which he has appealed voluntarily


   6
    Section 180 was replaced by 8 U.S.C. § 1101(g), which retains identical language.

                                                     8
leaves the United States, has he been deported? We answer this question ‘yes’ based on

statutes, regulations, and case authority.”). Here, as in Mrvica, an order of deportation had

previously been entered against the petitioner, and there is no error, let alone plain error, in

applying the U.S.S.G. § 2L2.2(b)(1) two level enhancement to an unlawful alien who has

been granted voluntary departure.

                                                     III.

         Munoz-Valencia contends he “accepted responsibility,” under U.S.S.G. § 3E1.1(a),

which permits a reduction “if the defendant clearly demonstrates acceptance of

responsibility for his offense.” Whether a defendant has “accepted responsibility” requires

a factual determination that we review for clear error. United States v. DeLeon-Rodriguez,

70 F.3d 764, 767 (3d Cir. 1995). “The sentencing judge is in a unique position to evaluate

a defendant’s acceptance of responsibility. For this reason, the determination of the

sentencing judge is entitled to great deference on review.” U.S.S.G. § 3E1.1 app. 5 (2002).

        A defendant must prove by a preponderance of the evidence that a reduction is

warranted under this provision. DeLeon-Rodriguez, 70 F.3d at 767. At the time of his

arrest, Munoz-Valencia admitted possessing the false resident alien card for six months and




                                                      9
using it to enter the United States illegally.7 He points to no other evidence in support of

his claim that he sufficiently accepted responsibility to warrant a departure.

        The District Court found Munoz-Valencia’s admission of possessing and using the

false resident alien card insufficient to constitute acceptance of responsibility. Because

Munoz-Valencia was found carrying $90,000 in undeclared currency, the District Court

concluded he was “involved in something else, because [he] did not make any attempt to

declare that currency.” Thus, the District Court did not “believe that [he] ha[d] accepted

appropriate responsibility, and that [his] explanation was truthful.” We see no clear error.

                                                    IV.

        For these reasons, we will affirm the judgment of conviction and sentence.




   7
    Munoz-Valencia provided the following statement in the presentence report:

        In Juarez, Mexico I got papers from a friend. I was in Mexico illegally and I
        needed to get to the U.S. I was looking for the American dream. I came to
        St. Thomas on vacation and was about to return to New York. I knew the
        papers were false, but I needed them to pass at the airports. I am very sorry
        for what happened, but all I wanted to do in the U.S. is work. I was hoping to
        get my papers legally.

                                                    10
TO THE CLERK:

            Please file the foregoing opinion.




                                             /s/ Judge Anthony J. Scirica
                                                            Circuit Judge

DATED: March 7, 2003
