     Case: 09-41061 Document: 00511503931 Page: 1 Date Filed: 06/09/2011




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

                                                 FILED
                                                                            June 9, 2011

                                       No. 09-41061                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff - Appellee
v.

ARNULFO RODRIGUEZ-PEREZ,

                                                   Defendant - Appellant




                   Appeals from the United States District Court
                        for the Southern District of Texas
                              No. 1:09-cr-00805-ALL


Before JONES, Chief Judge, and DENNIS and CLEMENT, Circuit Judges.
PER CURIAM:*
       The defendant, Arnulfo Rodriguez-Perez, appeals his conviction under 8
U.S.C. § 1326(a) and (b) for illegal re-entry and his resulting 33-month sentence.
He argues that the district court abused its discretion in denying his motion for
appointment of an expert or an investigator. He also argues that his conviction
and sentence are invalid because they rely on his 1995 Florida conviction for
possession of cocaine, in which he alleges that he received ineffective assistance
of counsel. We AFFIRM.

       *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
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                                       No. 09-41061

                                              I.
       Rodriguez-Perez was arrested and charged with violating 8 U.S.C.
§ 1326(a) and (b). Section 1326 makes it unlawful for “any alien who-- (1) has
been denied admission, excluded, deported, or removed or has departed the
United States while an order of exclusion, deportation, or removal is
outstanding, [to] thereafter (2) enter[], attempt[] to enter, or [to] at any time [be]
found in, the United States,” unless the alien falls within one of two exceptions
that are not applicable in this case.
       Prior to trial, Rodriguez-Perez, proceeding pro se at his request, filed a
motion asking that “the court . . . permit him the help that the Federal
government allows a defendant,” including the appointment of “investigators
[and] experts,” pursuant to 18 U.S.C. § 3006A(e)(1).1 Approximately a week later,
he filed a second motion requesting “the assistance of investigators, experts, and
other services necessary for an adequate defense.” Neither motion specified why
Rodriguez-Perez required the assistance of an expert or investigator, nor did
they request a hearing on the motions. The district court denied both motions,
stating that “Defendant has not presented this Court with any justification for
what the investigators or experts could help him discover or testify to on his
behalf. . . . Until the Defendant provides to this Court a description of what
evidence admissible at his trial the experts or investigators will help him
present, then his request is DENIED.” Rodriguez-Perez did not renew his
motions.




       1
         That provision reads in full: “Counsel for a person who is financially unable to obtain
investigative, expert, or other services necessary for adequate representation may request
them in an ex parte application. Upon finding, after appropriate inquiry in an ex parte
proceeding, that the services are necessary and that the person is financially unable to obtain
them, the court, or the United States magistrate judge if the services are required in
connection with a matter over which he has jurisdiction, shall authorize counsel to obtain the
services.” 18 U.S.C. § 3006A(e)(1).

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      Rodriguez-Perez also filed numerous motions arguing that his 1995
Florida conviction for possession of cocaine was unlawful for a number of
different reasons, including that he received ineffective assistance of counsel
resulting in his guilty plea. In response, the Government filed a motion in limine
seeking to “prohibit Defendant from offering testimony or argument regarding
his 1995 [Florida] conviction for Possession of Cocaine and related charges.” “The
government anticipate[d] that Defendant w[ould] attempt to re-litigate his prior
Possession of Cocaine conviction” and thus “request[ed] that Defendant be
precluded from referencing his prior drug offense so as to avoid confusing the
jury and re-litigating a matter that is wholly irrelevant to establishing or
countering the elements of the offense for which Defendant currently stands
charged.” The district court granted the motion, stating “Defendant’s prior
conviction of a drug offense . . . is a relevant sentencing factor, not an element
of the offense which the Government must prove at trial.”
      The case proceeded to trial by jury. The Government’s witnesses testified
that Rodriguez-Perez was apprehended walking around a checkpoint near the
Texas-Mexico border and that he admitted to being an alien. A search of his
administrative file revealed that he was not a United States citizen and that he
had previously been deported from the United States to Mexico. Rodriguez-Perez
testified as the only witness in his defense. He claimed to be an “American,” but
then admitted on cross-examination that he was born in Mexico and had been
previously deported. The jury found Rodriguez-Perez guilty of one count of
violating 8 U.S.C. § 1326(a) and (b).
      The pre-sentence report stated that the conviction carried a base offense
level of 8 and that the defendant’s criminal history justified a 4-level
enhancement under U.S.S.G. § 2L1.2(b)(1)(D), producing a total offense level of
12. Section 2L1.2(b)(1)(D) provides that a defendant’s offense level should be
“increase[d] by 4 level[s]” “[i]f the defendant previously was deported, or

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unlawfully remained in the United States, after . . . a conviction for any . . .
felony” for which a different enhancement is not specified in the provision. The
pre-sentence report stated that the defendant was “last deported” on May 4,
2009 and thus any one of three convictions could justify the enhancement: (1) the
1995 Florida conviction for possession of cocaine; (2) a 2001 conviction for illegal
re-entry; or (3) a March 2, 2009 conviction for illegal re-entry. The report also
calculated that the defendant fell into criminal history category V. It did not
assign any criminal history category points for the defendant’s 1995 Florida
conviction. Rodriguez-Perez’s offense level of 12 and criminal history category
of V resulted in a recommended Sentencing Guidelines sentencing range of 27
to 33 months of imprisonment. The probation officer recommended a 33-month
sentence because of the defendant’s criminal history, particularly his multiple
convictions for illegal re-entry.
      The district court adopted the findings of the pre-sentence report and the
probation officer’s recommendation, and sentenced the defendant to 33 months
of imprisonment. In light of the defendant’s claim that he received ineffective
assistance of counsel resulting in his 1995 Florida conviction, an argument that
the defendant renewed at sentencing, the district court noted that no criminal
history category points had been added based on that conviction, that the court
would not upwardly depart under the Guidelines based on the defendant’s
criminal history, and that the defendant’s two prior convictions for illegal re-
entry could “each individually serve as a basis” for the 4-level upward
adjustment    to    the   defendant’s offense   level imposed     under   U.S.S.G.
§ 2L1.2(b)(1)(D).
      On appeal, now represented by counsel, the defendant presses two
arguments: (1) that the district court abused its discretion in denying the
defendant’s motion for the appointment of an expert or investigator; and (2) that
the defendant’s conviction and sentence are invalid because his 1995 Florida

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conviction for possession of cocaine resulted from ineffective assistance of
counsel. We address each argument in turn.
                                       II.
      “[W]e review the district court’s denial of [the defendant’s] motion for
expert appointment under [18 U.S.C. § 3006A(e)] for abuse of discretion.” United
States v. Hardin, 437 F.3d 463, 468 (5th Cir. 2006). Our holdings do not “require
in all circumstances that [the] district court hold a hearing on an ex parte
application for appointment under § 3006A(e).” Id. at 470. “Neither the statute’s
plain language nor our caselaw interpreting it supports such a broad rule.” Id.
(citing United States v. Gadison, 8 F.3d 186, 191 (5th Cir. 1993); United States
v. Scott, 48 F.3d 1389, 1395-96 (5th Cir. 1995)). “[T]he language of the statute
requires [only] that the expert services not be authorized in the absence of an
‘appropriate inquiry in an ex parte proceeding’ and two determinations by the
court: that the services are necessary for an adequate defense and that the
defendant is financially unable to obtain those necessary services.” Id. (quoting
18 U.S.C. § 3006A(e)(1)). Moreover, we have explained that the burden is on the
defendant “[t]o justify the authorization of investigative services under
§ 3006A(e)(1), . . . demonstrat[ing] with specificity[] the reasons why such
services are required.” Gadison, 8 F.3d at 191 (citing United States v. Davis, 582
F.2d 947, 951 (5th Cir. 1978)). As explained above, the defendant did not provide
any justification for why he needed an expert or investigator in either of his
motions before the district court, nor does he provide such a justification in his
brief before this court. Therefore, the district court did not abuse its discretion
in denying Rodriguez-Perez’s motion for appointment of an expert or
investigator.
                                       III.
      Rodriguez-Perez also argues on appeal that his instant conviction and
sentence are unlawful because they are based on his 1995 Florida conviction for

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possession of cocaine, which was unconstitutional because it resulted from
ineffective assistance of counsel. He highlights that last year the Supreme Court
held “that advice regarding deportation is not categorically removed from the
ambit of the Sixth Amendment right to counsel.” Padilla v. Kentucky, 130 S. Ct.
1473, 1482 (2010). In fact, “constitutionally competent counsel” must advise their
criminal-defendant clients if a conviction would “subject [them] to automatic
deportation,” and the client may bring a claim of ineffective assistance under
Strickland v. Washington, 466 U.S. 668 (1984), for his counsel’s failure to provide
such advice. Padilla, 130 S. Ct. at 1478. Rodriguez-Perez claims that he was not
informed that his 1995 guilty plea would subject him to deportation and had he
known of such a consequence, he would not have pled guilty and instead would
have proceeded to trial. Therefore, he argues that in light of Padilla his 1995
conviction was unconstitutionally obtained, his subsequent deportation based on
that conviction was invalid, and each of his subsequent convictions and
sentences for illegal re-entry, including those in the instant case, are also
invalid. Without deciding whether Padilla provides Rodriguez-Perez a claim that
his 1995 conviction was unconstitutional, we conclude that his arguments
against his instant conviction and sentence are unavailing.
      A defendant may collaterally attack a prior conviction on the ground that
it occurred in violation of his Sixth Amendment right to the appointment of
counsel: “There is . . . a historical basis in our jurisprudence of collateral attacks
for treating the right to have counsel appointed as unique . . . .” Custis v. United
States, 511 U.S. 485, 494 (1994). “To permit a conviction obtained in violation of
Gideon v. Wainwright to be used against a person either to support guilt or
enhance punishment for another offense” re-introduces that prior conviction’s
“constitutional error” into the present proceeding, “den[ying]” the Sixth
Amendment right to counsel “anew.” Burgett v. Texas, 389 U.S. 109, 115 (1967).
The courts “cannot permit such a result unless Gideon v. Wainwright is to suffer

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serious erosion.” Id. at 116. However, collateral attacks on a prior conviction
claiming that the prior conviction was unlawful because of “the denial of the
effective assistance of counsel” do not “rise[] to the level of a jurisdictional defect
resulting from the failure to appoint counsel at all.” Custis, 511 U.S. at 496; see
also United States v. Arango-Montoya, 61 F.3d 1331, 1336 (7th Cir. 1995) (“The
Supreme Court emphasized that collateral review of a prior conviction for failure
to appoint counsel, as opposed to other collateral attacks to a prior conviction,
is allowed because failing to appoint counsel for an indigent defendant is a
unique constitutional defect.” (citing Custis, 511 U.S. at 496)); United States v.
Daly, 28 F.3d 88, 89 (9th Cir. 1994) (“A sole exception to the prohibition against
collateral attack of previous state convictions is for the indigent defendant who
was not appointed counsel at his state trial. Claims of denial of effective
assistance of counsel, where counsel was appointed, and involuntarily pleading
guilty do not fall within this exception.” (citation omitted) (citing Custis, 511 U.S.
at 496)). Therefore, absent specific statutory authorization to bring such a
collateral attack in a later proceeding, a claim of ineffective assistance of counsel
does not provide a basis on which a defendant can collaterally attack a prior
conviction on which his present conviction or sentence rests.
      Defendants charged under 8 U.S.C. § 1326 are authorized by the statute
to bring an additional type of collateral attack. The statute states that “[i]n a
criminal proceeding under this section, an alien may not challenge the validity
of the deportation order . . . unless the alien demonstrates that-- (1) the alien
exhausted any administrative remedies that may have been available to seek
relief against the order; (2) the deportation proceedings at which the order was
issued improperly deprived the alien of the opportunity for judicial review; and
(3) the entry of the order was fundamentally unfair.” 8 U.S.C. § 1326(d). “This
rule effectively codifies the Supreme Court’s decision in United States v.
Mendoza-Lopez, 481 U.S. 828 (1987), which, as interpreted by our precedent,

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permits a collateral constitutional challenge [to the underlying deportation
proceeding] if the alien can ‘establish that (1) the prior hearing was
“fundamentally unfair”; (2) the hearing effectively eliminated the right of the
alien to challenge the hearing by means of judicial review of the order; and (3)
the procedural deficiencies caused the alien actual prejudice.’” United States v.
Villanueva-Diaz, 634 F.3d 844, 849-50 (5th Cir. 2011) (quoting United States v.
Lopez-Vasquez, 227 F.3d 476, 483 (5th Cir. 2000)). Therefore, even if a court
could conclude that the instant conviction is unlawful because it is based on an
order of removal which in turn is unlawful because it was based on a conviction
resulting from ineffective assistance of counsel, § 1326(d) does not allow such an
argument or conclusion unless Rodriguez-Perez can make out the three elements
required by the Supreme Court and codified in the statute. Rodriguez-Perez has
not even alleged these elements.
                                       IV.
      For the foregoing reasons, we AFFIRM the defendant’s conviction and
sentence.




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