Unpublished Disposition, 881 F.2d 1085 (9th Cir. 1989)

MEMORANDUM^** 

Eudoro Valencia-Espinoza appeals his conviction and sentence following his guilty plea to being an alien in the United States without the Attorney General's consent to apply for reentry after a prior arrest and deportation. Counsel filed a motion to withdraw pursuant to Anders v. California, 386 U.S. 738 (1967), and this court granted his motion.¹  We affirm in part and vacate in part.

* Prison Term

This court reviews the district court's sentencing decision for abuse of discretion. See United States v. Stewart, 820 F.2d 1107, 1108 (9th Cir.), cert. denied, 108 S. Ct. 192 (1987).

Counsel suggests that a possible issue for review is that the district court abused its discretion by sentencing Valencia-Espinoza to a two-year prison term. This suggestion lacks merit. Valencia-Espinoza's two-year prison term is within the two-year statutory limit. See 8 U.S.C. § 1326 (1982). Further, the sentencing hearing record discloses that at the time of sentencing for the current offense, Valencia-Espinoza had at least 3 prior convictions. The district court noted that Valencia-Espinoza was then serving a state sentence and that he had an impressive criminal record for his age. Thus, the court considered Valencia-Espinoza's particular characteristics, including his criminal history and age, and properly imposed an individualized sentence. See United States v. Stewart, 820 F.2d 1107, 1108 (9th Cir.) cert. denied, 108 S. Ct. 192 (1987). The district court did not abuse its discretion in imposing a prison term that was the statutory maximum. See United States v. Barker, 771 F.2d 1362, 1364 (9th Cir. 1985).

II

Guilty Plea

This court reviews the sufficiency of the factual basis for a guilty plea by examining the plea hearing record to ascertain whether "sufficient evidence [supports] the conclusion that the defendant is guilty."²  United States v. Rivera-Ramirez, 715 F.2d 453, 457 (9th Cir. 1983) (appeal from denial of post-appeal period Fed. R. Crim. P. 32(d) motion), cert. denied, 467 U.S. 1215 (1984).

Counsel suggests that another possible issue for review is that an insufficient factual basis exists for the guilty plea. This suggestion lacks merit.

Fed. R. Crim. P. 11(f) requires the district court to inquire into the factual basis for a guilty plea to determine the accuracy of the plea. United States v. Rivera-Ramirez, 715 F.2d 453, 457 (9th Cir. 1983), cert. denied, 467 U.S. 1215 (1984). The elements of an 8 U.S.C. § 1326 violation are that the defendant is (1) an alien who was (2) previously arrested and (3) deported and then (4) reentered or was found in the United States (5) without first obtaining the Attorney General's permission to reenter. See United States v. Farias-Arroyo, 528 F.2d 904, 904 (9th Cir. 1975); accord, United States v. Hernandez, 693 F.2d 996, 998 (10th Cir. 1982), cert. denied, 459 U.S. 1222 (1983). Establishing the issuance of a warrant of deportation pursuant to 8 C.F.R. Sec. 243.2 (1988) is sufficient evidence of an arrest. See Farias-Arroyo, 528 F.2d at 904-05.³ 

Here, the prosecutor set forth the facts which he claimed constituted the offense, and Valencia-Espinoza admitted that the prosecutor accurately described his conduct. The record establishes that INS agents located Valencia-Espinoza in Yakima, Washington, on February 3, 1988. After he waived his Miranda rights, he admitted that he had been deported at San Ysidro, California, on January 28, 1987, and that he subsequently reentered the United States from Mexico without permission.

However, the plea hearing record contains no direct evidence that the INS issued a warrant of deportation when it deported Valencia-Espinoza was arrested. See Farias-Arroyo, 528 F.2d at 904-05; see also United States v. Wong Kim Bo, 466 F.2d 1298, 1304 (if fact of deportation, by itself, were sufficient, the statutory phrase, "arrest and," would be surplusage), reh'g denied, 472 F.2d 720 (5th Cir. 1972).

Nevertheless, here, the fact of an arrest is inferable from the plea hearing record as a whole. Cf. United States v. Kamer, 781 F.2d 1380, 1386 (9th Cir.) (Rule 11(f) violation where an element of the offense was not inferable from the record), cert. denied, 479 U.S. 819 (1986)).

First, Valencia-Espinoza's deportation prior to his reentry is uncontroverted. In addition, he had an attorney with whom he conferred about the charge, which included a prior deportation-related arrest as an element of the offense. See Rivera-Ramirez, 715 F.2d at 457 (attorney assisted defendant to understand the charges against him). Further, the record shows he found his attorney's advice to be satisfactory. Defense counsel conceded that the facts which the prosecutor set forth on the record established a sufficient basis for Valencia-Espinoza's conviction and that Valencia-Espinoza had no defense to the charge. See id. at 458 (defendant admitted facts which supported the charges against him and conceded that no reason existed why his plea should not be accepted).

On this record, it is clear that the INS followed its own regulation and issued a warrant of deportation based upon the order directing Valencia-Espinoza's deportation. Therefore, a sufficient factual basis exists for Valencia-Espinoza's guilty plea. See Rivera-Ramirez, 715 F.2d at 457.

This court reviews de novo whether a Fed. R. Crim. P. 11(c) (1) violation renders a conviction based upon a guilty plea invalid as a matter of law. See United States v. Jaramillo-Suarez, 857 F.2d 1368, 1369 (9th Cir. 1988).

An independent examination of the record pursuant to Penson v. Ohio, --- U.S. ----, 109 S. Ct. 346, 351 (1988), has revealed as a possible issue for review whether the district court erred by accepting Valencia-Espinoza's guilty plea without expressly informing him that a deportation-related arrest was an element of the offense. Even if the court erred, the error was harmless.

Prior to accepting a guilty plea, the district court must inform the defendant of, and ascertain that he understands, the nature of the charge to which he intends to plead guilty. Fed. R. Crim. P. 11(c) (1); United States v. Kamer, 781 F.2d 1380, 1383 (9th Cir.), cert. denied, 479 U.S. 819 (1986). The court's failure to mention an essential element of the crime may be harmless error where "the defendant's responses clearly indicate his awareness of that element." United States v. Jaramillo-Suarez, 857 F.2d 1368, 1372 (9th Cir. 1988) (quoting Fed. R. Crim. P. 11(h) advisory committee's note (1983 amendment)).

Here, when the district court asked Valencia-Espinoza whether he was aware of the charge, the court merely set forth the charge as "being an alien in this country ... without permission after having previously been deported" (RT 3). Valencia-Espinoza responded that he understood the charge as set forth by the court. However, the court did not inform him that a deportation-related arrest is an element of the offense, see United States v. Farias-Arroyo, 528 F.2d 904, 904 (9th Cir. 1975).⁴  Thus, the court violated Rule 11(c) (1). See Kamer, 781 F.2d at 1383-84. However, the violation was harmless error. See Jaramillo-Suarez, 857 F.2d at 1372.

Valencia-Espinoza was 29 years old, had received four years of schooling in Mexico, and responded to the court's questions, through an interpreter, with lucidity and apparent understanding. He indicated that he had an attorney with whom he had discussed the charge, and he was satisfied with his attorney's advice. Since the charge set forth in the factually specific indictment included a prior deportation-related arrest, the court's inquiry into Valencia-Espinoza's understanding of the charge was adequate. Cf. United States v. Rivera-Ramirez, 715 F.2d 453, 457 (9th Cir. 1983) (reading the factually detailed indictment in open court permitted defendant, with attorney's assistance, to understand the charges against him), cert. denied, 467 U.S. 1215 (1984). The record thus demonstrates Valencia-Espinoza's awareness of this element, see Jaramillo-Suarez, 857 F.2d at 1372, and the court's omission was harmless, see United States v. Sanclemente-Bejarano, 861 F.2d 206, 210 (9th Cir. 1988) (harmless error where deviation from rule "could not have had any impact on the defendant's decision to plead or the fairness in now holding him to his plea") (quoting Fed. R. Crim. P. 11(h) advisory committee's note (1983 amendment)).

This court reviews de novo whether a conviction is invalid as a matter of law based upon alleged noncompliance with Fed. R. Crim. P. 11(c) (1)'s requirement regarding the defendant's understanding of the maximum possible penalty before the court accepts his guilty plea. See United States v. Jaramillo-Suarez, 857 F.2d 1368, 1369 (9th Cir. 1988).

An independent review of the record has disclosed another possible appealable issue: whether the district court erred by accepting Valencia-Espinoza's guilty plea without properly informing him of the maximum possible penalty. Even if the court erred, the error is harmless.

Before accepting a guilty plea, the district court must inform the defendant of, and ascertain that he understands, the maximum possible penalty for the offense. Fed. R. Crim. P. 11(c) (1); United States v. Jaramillo-Suarez, 857 F.2d 1368, 1369 (9th Cir. 1988). However, the court's deviation from Rule 11's procedural requirements will be deemed harmless error if it does not affect substantial rights. Fed. R. Crim. P. 11(h); United States v. Sanclemente-Bejarano, 861 F.2d 206, 210 (9th Cir. 1988). The court's error is harmless even if the court understated the maximum penalty if it imposed a penalty that did not exceed the penalty of which the defendant was advised. Sanclemente-Bejarano, 861 F.2d at 210.

Here, the district court erroneously informed Valencia-Espinoza that besides two years' imprisonment, the offense was punishable by a $250,000 fine rather than the $1,000 statutory maximum fine, see 8 U.S.C. § 1326. However, the court did not impose a fine upon Valencia-Espinoza. Since the court did not impose a penalty in excess of the warned penalty and Valencia-Espinoza was not prejudiced by the technical error, the court's erroneous advice was harmless. See Sanclemente-Bejarano, 861 F.2d at 210.

III

Special Assessment

After this court granted counsel's motion to withdraw, this circuit held that 18 U.S.C. § 3013 (Supp. II 1984), the special assessment statute, violates the origination clause, U.S. Const. art. I, Sec. 7. United States v. Munoz-Flores, 863 F.2d 654, 661 (9th Cir. 1988), petition for cert. filed, 57 U.S.L.W. 3814 (U.S. June 13, 1989). As such, the statute is "inoperative as though it had never been passed." Id. (quoting Norton v. Shelby County, 118 U.S. 425, 442 (1886)).

Therefore, we vacate the $50 special assessment against Valencia-Espinoza. See Shah v. United States, No. 87-6382, slip op. 6863, 6877 (9th Cir. June 26, 1989) (sua sponte order of remand for vacation of special assessment in appeal from denial of 28 U.S.C. § 2255 motion); United States v. Anguiano, 873 F.2d 1314, 1321 (9th Cir. 1989) (apparent sua sponte vacation of special assessment); United States v. Montilla, 870 F.2d 549, 553 (9th Cir. 1989) (special assessment vacated apparently sua sponte).

The judgment is AFFIRMED in part and VACATED in part. Each party shall bear its own cost on appeal.