                                                                         FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit

                                                                     July 29, 2008
                     UNITED STATES COURT OF APPEALS
                                                                 Elisabeth A. Shumaker
                                                                     Clerk of Court
                            FOR THE TENTH CIRCUIT


    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                  No. 07-3271
                                                (D.C. No. 05-CR-10213-MLB)
    EVER MIGUEL JURADO-LARA,                              (D. Kan.)

                Defendant-Appellant.


                            ORDER AND JUDGMENT *


Before HOLMES, PORFILIO, and ANDERSON, Circuit Judges.



         Ever Miguel Jurado-Lara, a citizen of the Republic of Mexico, appeals from

the sentence imposed for crimes relating to his use of false information and false

documents to obtain employment in the United States. Although Mr. Jurado-Lara

was removed from the United States during his period of supervised release and




*
       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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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.
after completion of his 16-month term of imprisonment, we conclude that we have

jurisdiction over his appeal. We affirm.

                                           I.

      To obtain employment in the United States, Mr. Jurado-Lara used the name

and social-security number of Michael Soto, a United States citizen. Beginning in

early 2000, he presented a series of employers with photo-ID cards with

Mr. Jurado-Lara’s picture, but Mr. Soto’s name and social-security number. In

January 2004, Mr. Jurado-Lara married Melissa Macias, a United States citizen.

Through his wife’s petition for alien relative, he received a social-security card

and an employment-authorization card valid from June 2004.

      Mr. Jurado-Lara then procured work under his own name and, in 2005, he

applied for permanent-resident status in his own name. In February 2007, his

wife received a notice of approval of the relative-immigration-visa petition she

filed on his behalf. The same month, however, he was taken into custody based

on criminal charges arising from his earlier use of Mr. Soto’s identity.

      A jury found Mr. Jurado-Lara guilty of two counts of possession of false

documents in violation of 18 U.S.C. § 1546(a), two counts of making false

statements in violation of 18 U.S.C. § 1001(a)(3), and five counts of misuse of a

social security number in violation of 42 U.S.C. § 408(a)(7)(B). A prepared

Presentence Investigation Report (PIR) stated that the applicable sentencing

guideline, U.S.S.G. § 2B1.1, established a base offense level of six and increased

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the minimum offense level to 12 because Mr. Jurado-Lara’s offenses “involved

. . . the unauthorized . . . use of any means of identification unlawfully to produce

or obtain . . . other means of identification.” Id. § 2B1.1(b)(1)(C)(I). The

resulting advisory guidelines range was a prison term of 10 to 16 months.

Overruling Mr. Jurado-Lara’s objections to the PIR, the district court sentenced

him to a term of 16 months, followed by two years of supervised release.

      Mr. Jurado-Lara filed a timely notice of appeal challenging his sentence–

specifically the six-level enhancement of his offense level. During the pendency

of the appeal, he completed his sentence and was removed to Mexico.

                                          II.

      Before we can address the merits of Mr. Jurado-Lara’s arguments we must

determine if his deportation moots his case and deprives this court of jurisdiction.

When “intervening acts destroy a party’s legally cognizable interest” in the

lawsuit, the federal courts no longer have jurisdiction to decide a matter.

Moongate Water Co. v. Dona Ana Mut. Domestic Water Consumers Ass’n,

420 F.3d 1082, 1088 (10th Cir. 2005) (quotation omitted). In particular, when a

defendant completes the appealed sentence before an appellate court reaches a

decision, “the court must determine 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). A

“collateral consequence” of the conviction means “some concrete and continuing

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injury other than the now-ended incarceration.” Spencer v. Kemna, 523 U.S. 1, 7

(1998).

      The government argues that Mr. Jurado-Lara’s case is controlled by the

holding of United States v. Vera-Flores, 496 F.3d 1177 (10th Cir. 2007). In

Vera-Flores, we dealt with a defendant who, like Mr. Jurado-Lara, had been

deported following his term of incarceration but prior to the expiration of his term

of supervised release. Although the defendant was legally subject to a one-year

term of supervised release, his deportation “eliminated all practical consequences

associated with serving a term of supervised release.” Id. at 1181. Thus, the

removal “rendered [the defendant’s] appeal moot because he had no “actual injury

likely to be redressed by a favorable judicial decision.” Id. at 1181-82.

      The only collateral consequence asserted by Vera-Flores was that if he

obtained “permission to apply for lawful reentry during the pendency of his . . .

supervised release and were he actually admitted during that time period, he

would be forced to serve out the remainder of his supervised release term.” Id. at

1182. This hypothetical scenario was too “remote” and “speculative” to save his

appeal from mootness. Id. (internal quotation marks omitted). Therefore, we

dismissed the case for lack of jurisdiction.

      In contrast, Mr. Jurado-Lara asserts collateral consequences with regard to

the immigration laws. An actual sentence of 12 months or greater makes his

conviction under 18 U.S.C. § 1546 an “aggravated felony” for immigration

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purposes, 8 U.S.C. § 1101(a)(43)(P); a noncitizen convicted of an aggravated

felony is permanently inadmissible, 8 U.S.C. § 1182(a)(9)(A)(ii)(II). If this court

determined, however, that the application of the six-level enhancement was

erroneous, the upper end of the corrected advisory guideline range would be

under 12 months. As a result, Mr. Jurado-Lara would not have an

aggravated-felony conviction and would not be subject to the statutory bar.

      We conclude that Mr. Jurado-Lara met his burden of demonstrating

“collateral consequences adequate to meet Article III’s injury-in-fact

requirement.” Spencer, 523 U.S. at 14. His appeal is not moot because the

asserted collateral consequences from the judgment give Mr. Jurado-Lara “a

substantial stake” in the outcome of the case. See Carafas v. LaVallee, 391 U.S.

234, 237 (1968) (internal quotation marks omitted).

      Furthermore, we decline to adopt a blanket rule that a “deported

defendant’s inability to appear in court for resentencing pursuant to Federal

Rule of Criminal Procedure 43 preclude[s] the court from affording relief.”

Vera-Flores, 496 F.3d at 1182 n.4 (discussing the holding of United States v.

Rosenbaum-Alanis, 483 F.3d 381, 383 (5th Cir. 2007)), cert. denied,

128 S. Ct. 1216 (2008). Rule 43 provides that a defendant’s presence is

required at sentencing. And “a defendant has a due process right to be

present at a proceeding whenever . . . a fair and just hearing would be

thwarted by his absence.” United States v. Gagnon, 470 U.S. 522, 526 (1985)

                                       -5-
(internal quotation omitted). The rights afforded by Rule 43 and due process,

however, can be waived with the express or implied consent of the accused.

See id. at 526-28; Fed. R. Crim. P. 43(c). Mr. Jurado-Lara’s continued

pursuit of his appeal may be considered an implied waiver of the right to be

present at a potential resentencing hearing. See United States v. Nelson,

450 F.3d 1201, 1211 (10th Cir. 2006) (“[A]n express statement of waiver by

the defendant is not required; instead, waiver can be inferred from the

defendant’s actions and words.”) (quotation omitted).

      In sum, dismissal is not the appropriate resolution of Mr. Jurado-Lara’s

appeal. We therefore proceed to analyze the merits of his argument.

                                      III.

      Mr. Jurado-Lara asserts that the district court improperly enhanced his

sentence under U.S.S.G. § 2B1.1(b)(10)(C)(I) because the government failed

to prove that he used Mr. Soto’s identifying information without Mr. Soto’s

authorization. See United States v. Williams, 374 F.3d 941, 947 (10th Cir.

2004) (stating government bears burden of establishing sentence

enhancements). Pursuant to U.S.S.G. § 2B1.1(b)(10)(C)(I), the government

was required to show that Mr. Jurado-Lara engaged in “the unauthorized

transfer or use of any means of identification unlawfully to produce or obtain

any other means of identification.” The “means of identification” must “be of




                                      -6-
an actual (i.e. not fictitious) individual,” § 2B1.1 cmt. n.9(A), used “without

that individual’s authorization,” id. cmt. n.9(C)(I).

      The record does lack direct evidence of Mr. Soto’s permission to allow

the illegal use of his name and assigned social security number, and there is

no specific finding by the court on this aspect of the enhancement. However.

the objection offered by the defense was general in nature. Neither in

counsel’s written objection to the PIR nor in his oral argument at the

sentencing hearing was there any mention of the authorization issue.

Certainly, there was nothing in the objection itself which would call the

court’s attention to the precise point raised on appeal.

      We have previously “highlight[ed] the need for a party to raise specific

objections before the district court.” United States v. Smith, No. 07-6206,

2008 WL 2699388, at *8 (10th Cir. July 11, 2008). If a defendant raises a

specific objection to an enhancement, then the district court is given the

opportunity to “hear[] evidence and ma[k]e findings regarding the factual

question at issue.” Id. Although “‘we have reviewed sentencing errors that

were not raised in the district court under a plain error standard, plain error

review is not appropriate when the alleged error involves the resolution of

factual disputes.’” Id. (quoting United States v. Easter, 981 F.2d 1549, 155-56

(10th Cir. 1992)). In accordance with our established precedent, we will not

review Mr. Jurado-Lara’s objection to the enhancement.

                                        -7-
The judgment of the district court is AFFIRMED.



                                          Entered for the Court



                                          Stephen H. Anderson
                                          Circuit Judge




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