     Case: 17-40165    Document: 00514468715     Page: 1   Date Filed: 05/11/2018




                         REVISED May 11, 2018

        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                               United States Court of Appeals

                                  No. 17-40165
                                                                        Fifth Circuit

                                                                      FILED
                                                                   April 23, 2018

UNITED STATES OF AMERICA,                                          Lyle W. Cayce
                                                                        Clerk
                                            Plaintiff - Appellee
v.

SANTIAGO HUMBERTO RODRIGUEZ-APARICIO,

                                            Defendant - Appellant




                 Appeal from the United States District Court
                      for the Southern District of Texas


Before KING, HAYNES, and HIGGINSON, Circuit Judges.
KING, Circuit Judge:
      Discontent with the services of his federal public defender, Santiago
Humberto Rodriguez-Aparicio opted to represent himself. A two-day jury trial
yielded a conviction on a charge of illegal reentry. On appeal, he argues that
the district court effectively denied him the right to testify in his own defense.
During a hearing focused on his waiver of the right to counsel, Rodriguez told
the court that he understood he would receive “two more points” at sentencing
if he testified. According to his argument on appeal, that triggered a duty to
set him straight and explain that the penalty was not, in fact, automatic.
Under the circumstances, we hold that there was no such duty. Rodriguez also
    Case: 17-40165    Document: 00514468715     Page: 2   Date Filed: 05/11/2018



                                 No. 17-40165
contends that the district court should have dismissed his indictment based on
defects in his removal proceedings. But he concedes that our precedent
forecloses this argument. As a result, we AFFIRM his conviction and sentence.
                                       I.
                                       A.
      Santiago Humberto Rodriguez-Aparicio is a citizen of El Salvador. He
was admitted into the United States as a lawful permanent resident in 1994.
Thirteen years later, in 2007, U.S. Immigration and Customs Enforcement
(“ICE”) sought to remove him from the country based on a California firearm
conviction. See 8 U.S.C. § 1227(a)(2)(C) (providing for removal of “[a]ny alien
who at any time after admission is convicted under any law of . . . possessing[]
or carrying . . . a firearm”). ICE served Rodriguez with a document titled
“Stipulated Request for Removal Order and Waiver of Hearing Made By
Respondent Who is Unrepresented.” Rodriguez signed the stipulation. In doing
so, he admitted to the facts alleged by ICE. He also waived his right to an
attorney, a hearing, discretionary relief, and any appeal of the immigration
judge’s order. An immigration judge then ordered Rodriguez removed. ICE
dispatched him to El Salvador by plane the next month.
      In 2009, Rodriguez was charged in the District of Nevada with illegal
reentry and illegal possession of a firearm and ammunition. He moved to
dismiss the indictment, arguing that the immigration judge’s failure to advise
him of his eligibility for voluntary departure violated his right to due process.
The Government declined to respond and instead moved to dismiss the illegal
reentry count of the indictment. Rodriguez was convicted following a jury trial
on the remaining counts and sentenced to 41 months’ incarceration. He was
removed from the United States two years later.




                                       2
    Case: 17-40165    Document: 00514468715      Page: 3   Date Filed: 05/11/2018



                                 No. 17-40165
      Rodriguez once again turned up in the United States in March 2015,
when U.S. Customs and Border Patrol (“CBP”) apprehended him near the Rio
Grande River.
                                       B.
      A grand jury in the Southern District of Texas returned an indictment
charging Rodriguez with illegally reentering the United States, in violation of
8 U.S.C. § 1326(a), (b). Rodriguez pleaded not guilty.
      During    pretrial   proceedings,     Rodriguez    repeatedly   aired   his
dissatisfaction with his federal public defender. According to Rodriguez, his
attorney was resisting his request to file a motion to dismiss the indictment
based on defects in his removal proceedings. Rodriguez’s counsel ultimately
complied with his request. In the motion, counsel argued that the immigration
judge’s failure to advise Rodriguez of his eligibility for voluntary departure
violated his due process rights but conceded that the issue was foreclosed in
the Fifth Circuit. The district court denied the motion.
      Rodriguez’s dissatisfaction with his attorney did not abate in the months
leading up to trial. He ultimately requested that he be allowed to represent
himself. The district court advised him against doing so. Rodriguez responded
that he believed he would lose regardless and preferred to represent himself.
Said Rodriguez, “I’ve already been to trial once before and I think I can do it.”
The court explained the charges, the maximum punishments, the immigration
consequences, and the sentencing procedures. It advised Rodriguez that it
would expect him to hew to the Federal Rules of Evidence and Criminal
Procedure. If he decided to take the witness stand, the court told him that he
would be required to ask himself questions and could not testify in narrative
form. The court next informed Rodriguez that if he represented himself, the
court would not give him legal advice, except to stop him from presenting
inadmissible evidence or improper arguments.
                                       3
    Case: 17-40165    Document: 00514468715     Page: 4    Date Filed: 05/11/2018



                                 No. 17-40165
      The district court strongly urged Rodriguez not to represent himself in
light of the “serious penalty” he might be facing. In response to that remark,
Rodriguez asked, “The punishment, will it be higher if I have an attorney or if
I represent myself?” The court responded as follows:
            [T]here are some things that an attorney can advise
      somebody as to how the sentencing guidelines might be different
      whether somebody goes to trial or not go to trial and all those other
      things and whether a person takes the stand and whether they don’t
      take the stand, all those things that might affect a sentence. . . .
            And so if you decide to do that, well, you’re running—making
      that decision without having benefit of a lawyer advising you as to
      what, if anything, under the factors that the Court has to consider
      would make an effect on the sentence. A lawyer knows that, but
      you don’t. . . .
            I’m not here to give you legal advice and so that’s not my
      role.
(Emphasis added). Rodriguez then offered, “I understand that if I testify I will
get two more points.” The court responded, “I’m not here to give you that advice
either.” Rodriguez confirmed that he understood and reaffirmed his desire to
represent himself.
      The court ruled that Rodriguez had knowingly and voluntarily waived
his right to counsel. It appointed Rodriguez’s public defender as standby
counsel. The court explained to Rodriguez that standby counsel would not be
representing him but would be available for legal questions.
                                       C.
      The jury trial lasted two days. During his opening statement, Rodriguez
told the jury, “My name is Santiago Rodriguez-Aparicio. I have been in this
country for over 20 years as a legal resident.” The court stopped Rodriguez,
explaining that he could not make a personal statement but was instead
limited to summarizing what the evidence would show at trial. Rodriguez



                                       4
    Case: 17-40165     Document: 00514468715     Page: 5     Date Filed: 05/11/2018



                                  No. 17-40165
continued, “I do not have very much in the way of evidence but I will try to do
what I can and to speak and to present my defense. That’s all.”
      The Government presented its case through four witnesses: two CBP
agents, a fingerprint examiner, and a custodian of records for the U.S. Customs
and Immigration Services. Rodriguez’s efforts to present a defense were
limited. He cross-examined only some of the Government’s witnesses—with
little success. The court twice inquired about whether Rodriguez planned to
call any defense witnesses. On both occasions, Rodriguez indicated that he
planned to present evidence to challenge his prior removals. But the court
forbade him from doing so. Rodriguez consulted with standby counsel and
ultimately decided not to call any witnesses.
      Rodriguez began his closing statement by telling the jury, “I am my own
lawyer, my own defendant, because as the law says, I always wanted to have
a fair trial. . . . I have been in this country since I was not of legal age.” The
Government objected to Rodriguez’s attempt to testify, and the court sustained
the objection. Rodriguez continued, telling the jury that he did not have any
evidence to disprove the Government’s charges because he had not been
allowed to present it. The court interrupted once again to tell Rodriguez that
he could not make arguments about evidence not presented to the jury.
Rodriguez resumed his closing argument, observing that “beyond a reasonable
doubt, no one has testified that they have seen me leave this country.” He
wrapped up by telling the jury, “[T]he decision is yours.”
      The jury returned a verdict of guilty. The court imposed a sentence of 27
months’ incarceration. Rodriguez appeals.
                                       II.
      On appeal, Rodriguez argues that the district court denied him his right
to testify by failing to correct his misconception that he would receive an
automatic sentencing enhancement for doing so. As the Government notes,
                                        5
     Case: 17-40165       Document: 00514468715          Page: 6     Date Filed: 05/11/2018



                                       No. 17-40165
Rodriguez never raised this claim in the district court. Rodriguez nonetheless
argues that applying plain error would be “absurd” because he represented
himself and did not understand the law. We decline to resolve this dispute
because Rodriguez’s argument “fails even under the de novo standard he
advocates.” United States v. Compian-Torres, 712 F.3d 203, 206 (5th Cir. 2013).
       “Every criminal defendant is privileged to testify in his own defense, or
to refuse to do so.” Rock v. Arkansas, 483 U.S. 44, 53 (1987) (quoting Harris v.
New York, 401 U.S. 222, 225 (1971)); see also 18 U.S.C. § 3481 (“[T]he person
charged shall, at his own request, be a competent witness.”). This right is
personal to the defendant: only he, not counsel, may make the choice. See
United States v. Mullins, 315 F.3d 449, 452 (5th Cir. 2002). And he must do so
knowingly and voluntarily. Id. Even so, “[a]n overwhelming majority of the
circuits have held that a district court generally has no duty to explain . . . [the]
right to testify or to verify that the defendant . . . has waived the right
voluntarily.” United States v. Brown, 217 F.3d 247, 258 (5th Cir. 2000) (citing
United States v. Leggett, 162 F.3d 237, 246 (3d Cir. 1998) (collecting cases)),
vacated on other grounds sub nom. Randle v. United States, 531 U.S. 1136
(2001). 1 In reaching that conclusion, courts have recognized that requiring the
trial court to do so “could inappropriately influence the defendant to waive his
constitutional right not to testify, thus threatening the exercise of this other,
converse, constitutionally explicit, and more fragile right.” Siciliano v. Vose,
834 F.2d 29, 30 (1st Cir. 1987) (Breyer, J.); accord Brown, 217 F.3d at 258.
       Some courts have recognized that the district court may nonetheless
have such a duty “in exceptional, narrowly defined circumstances.” United



       1  On remand from the Supreme Court and after granting panel rehearing, the panel
affirmed its original holding that the district court generally has no duty to explain the right
to testify and confirm the defendant’s waiver of that right. See United States v. Randle, 304
F.3d 373, 378–79 & n.4 (5th Cir. 2002).
                                               6
    Case: 17-40165     Document: 00514468715      Page: 7   Date Filed: 05/11/2018



                                  No. 17-40165
States v. Pennycooke, 65 F.3d 9, 12 (3d Cir. 1995); see id. at 13 (when
defendant’s counsel “is frustrating his or her desire to testify”); see also United
States v. Ly, 646 F.3d 1307, 1317 (11th Cir. 2011) (when the defendant is pro
se and it is clear to the court that he misunderstands the right); United States
v. Stark, 507 F.3d 512, 516–17 (7th Cir. 2007) (when the court is aware of a
conflict between counsel and the defendant as to whether the defendant will
testify); United States v. Webber, 208 F.3d 545, 552 (6th Cir. 2000) (adopting
the reasoning in Pennycooke); United States v. Ortiz, 82 F.3d 1066, 1071 (D.C.
Cir. 1996) (when the court is aware of a conflict between counsel and the
defendant, or the defendant’s decision not to testify “threatens to jeopardize
the defense case and there appears to be no rational explanation for the
decision”); United States v. Janoe, 720 F.2d 1156, 1161 (10th Cir. 1983)
(suggesting that the district court may be required to hold a hearing where
there is evidence of disagreement between the defendant and counsel).
Virtually all of these circumstances involve conflicts between the defendant
and counsel. See Stark, 507 F.3d at 516–17; Webber, 208 F.3d at 552;
Pennycooke, 65 F.3d at 12; Janoe, 720 F.2d at 1161. Only the Eleventh Circuit
appears to have recognized a duty to correct a pro se defendant’s evident
misunderstanding of the right to testify. See Ly, 646 F.3d at 1317.
      The defendant in Ly told the district court that he did not believe he
could testify without a lawyer to ask him questions. See id. at 1311–12. As a
consequence, he believed that if he testified, he would only be able to respond
to cross-examination from the Government. See id. The district court did
nothing to correct his misunderstanding. See id. at 1317. On appeal, the
Eleventh Circuit held that the district court had a duty to do so. See id. It
reasoned that a court is entitled to presume a knowing waiver only in the
absence of evidence to the contrary. See id. But when the court “knows” that
the defendant’s waiver is based on a misunderstanding of the law, it has a duty
                                        7
    Case: 17-40165     Document: 00514468715      Page: 8   Date Filed: 05/11/2018



                                  No. 17-40165
to inquire further. See id. The court declined, however, to “set out” all of “[t]he
ways in which a district court could ‘know’ that a defendant is not intelligently
or knowingly exercising his right to testify.” Id. And it qualified its holding
because it recognized that “[t]his area of the law is not well laid.” Id. at 1318.
It limited the duty to “instances in which the district court begins a colloquy
regarding the defendant’s right to testify” and to “requiring [the] district court
to correct a pro se defendant’s basic misunderstanding regarding his
fundamental right to testify.” Id.
      We find no warrant to establish such a duty in this case. Here, unlike in
Ly, the defendant’s misunderstanding concerned the consequences of
testifying, not the ability to do so. See id. at 1311 (“[W]ithout counsel, Your
Honor, I can’t testify.”). And unlike Ly, this case does not involve a court-
initiated inquiry during trial regarding the decision to testify. See id. at 1311,
1317–18. Rather, when Rodriguez made the statement regarding a sentence
enhancement if he testified, the district court was in the process of holding a
pre-trial hearing on Rodriguez’s waiver of the right to counsel. The proceedings
had not yet reached the point where Rodriguez was required to make that
decision.
      Nor are we confronted with a claim that the district court actively
misinformed Rodriguez about the right. The decision to testify carries the
possibility of a two-level sentence enhancement if the defendant commits
perjury. See U.S.S.G. § 3C1.1; United States v. Dunnigan, 507 U.S. 87, 95
(1993). The district court simply told Rodriguez correctly that a lawyer could
advise him as to how the decision to testify might affect his sentence—not that
such a decision surely would. Moreover, the district court did not simply ignore
Rodriguez’s statement regarding the penalty for testifying. Instead, it told him
that it could not offer legal advice, encouraged him to consult with a lawyer,
and again emphasized the disadvantages of self-representation.
                                        8
     Case: 17-40165       Document: 00514468715          Page: 9     Date Filed: 05/11/2018



                                       No. 17-40165
       A requirement that the district court correct every misunderstanding
relating to the right to testify would prove unworkable. The district court
would be in the position of constantly monitoring the defendant’s statements
for evidence of such misunderstandings. If the district court erred in its effort
to clear up a misunderstanding, it might have committed further error. Its
explanation might itself require additional clarification, essentially putting the
district court in the position of legal advisor to the defendant. By attempting
to correct his misunderstanding, it might have inadvertently misstated the
law, omitted a relevant consideration, or otherwise compounded his confusion.
Further, it might have undercut the district court’s disclaimer of a duty to offer
legal advice, causing Rodriguez to think that, despite its disclaimer, the district
court would correct his misunderstandings throughout trial. The court in this
case took the more prudent course: it told Rodriguez that only a lawyer could
advise him of the consequences of testifying and that it was not the court’s role
to do so. So admonished, Rodriguez nonetheless reaffirmed his commitment to
self-representation. 2
       Once the district court accepted Rodriguez’s waiver of his right to
counsel, it appointed standby counsel and told Rodriguez to look to her for legal
advice. Standby counsel is a safeguard, not an entitlement. See United States
v. Oliver, 630 F.3d 397, 414 (5th Cir. 2011). “‘[T]he wisdom of the trial judge’
in appointing standby counsel lies in the fact that the pro se defendant will
therefore have counsel available ‘to perform all the services a trained advocate



       2 As we do not confront a claim that the defendant misunderstood his ability to testify,
this opinion should not be read necessarily to dictate the same outcome in such a case. As
explained earlier, the Eleventh Circuit has held that a district court has a duty to correct a
pro se defendant’s misunderstanding of his ability to testify when the court initiates a
colloquy with the defendant regarding whether he will testify. See Ly, 646 F.3d at 1318.
Whether such a duty exists under those circumstances remains an open question in this
circuit.
                                              9
    Case: 17-40165       Document: 00514468715         Page: 10     Date Filed: 05/11/2018



                                      No. 17-40165
would perform ordinarily[]’ . . . .” United States v. Padilla-Galarza, 886 F.3d 1,
2018 WL 1444325, at *6 (1st Cir. 2018) (quoting Mayberry v. Pennsylvania, 400
U.S. 455, 467–68 (1971) (Burger, C.J., concurring)). Standby counsel was
available to answer any legal questions, including about the procedure for
testifying and the potential consequences of doing so. Indeed, the record
reflects that Rodriguez consulted with standby counsel during trial despite
their prior discord. 3
       Finally, Rodriguez argues that his attempts to testify in his opening and
closing statements also demonstrate that he wanted to testify but
misunderstood how to do so. These statements gave no indication that he had
any desire to offer sworn testimony. Rather, they simply betray his confusion
about proper argument in opening and closing statements. The district court
explained to Rodriguez before trial that he could take the witness stand if he
wished but would be required to ask himself questions. Rodriguez counters
that this explanation only compounds any error because Rodriguez could have
testified in narrative form. But the trial court had broad discretion to require
testimony to be in question-and-answer, rather than narrative, form. See Fed.
R. Evid. 611(a) advisory committee’s note to 1972 proposed rules; United States
v. Beckton, 740 F.3d 303, 306–07 (4th Cir. 2014); Hutter N. Tr. v. Door Cty.
Chamber of Commerce, 467 F.2d 1075, 1078–79 (7th Cir. 1972). We find no
error in the court’s decision not to inquire about Rodriguez’s desire to testify in
light of his remarks in his opening and closing statements. Nor do we find error
in the court’s explanation of how Rodriguez could testify.




       3This appears to be yet another point of distinction between this case and Ly, where
there was no indication that the defendant had access to the advice of standby counsel during
trial.
                                             10
    Case: 17-40165       Document: 00514468715        Page: 11     Date Filed: 05/11/2018



                                      No. 17-40165
       Accordingly, Rodriguez’s possible misunderstanding of the consequences
of testifying triggered no duty to explain the right to testify. 4
                                           III.
       This leaves the district court’s denial of Rodriguez’s motion to dismiss
the indictment. We review this claim, including “any underlying constitutional
claims,” de novo. United States v. Cordova-Soto, 804 F.3d 714, 718 (5th Cir.
2015). As Rodriguez properly concedes, our precedent forecloses his argument.
To challenge a prior order of removal in a prosecution under 8 U.S.C. § 1326, a
defendant must show (1) exhaustion of administrative remedies, (2) improper
deprivation of the right to judicial review, and (3) fundamental unfairness. See
8 U.S.C. § 1326(d). This court has held that eligibility for discretionary relief
“is not a liberty or property interest warranting due process protection.” United
States v. Lopez-Ortiz, 313 F.3d 225, 231 (5th Cir. 2002). Thus, the failure to
explain eligibility for discretionary relief “does not rise to the level of
fundamental unfairness,” at least not in this circuit. 5 Id. The district court
therefore correctly denied Rodriguez’s motion.
                                            IV.
       For the foregoing reasons, we AFFIRM Rodriguez’s conviction and
sentence.




       4 We need not consider whether the denial of the right to testify is structural error
because we hold that there was no error, structural or otherwise.
       5 The Second and Ninth Circuits have held otherwise. See United States v. Lopez-

Velasquez, 629 F.3d 894, 896–97 (9th Cir. 2010) (en banc); United States v. Copeland, 376
F.3d 61, 70–73 (2d Cir. 2004). They are, however, in the minority. See Lopez-Velasquez, 629
F.3d at 897 n.2 (collecting cases); Copeland, 376 F.3d at 70 (collecting cases). And their
decisions do not free us of our obligation to follow our own precedent absent intervening
action by Congress, the Supreme Court, or our court sitting en banc. See Mercado v. Lynch,
823 F.3d 276, 279 (5th Cir. 2016) (per curiam).
                                            11
