Unpublished Disposition, 867 F.2d 614 (9th Cir. 1987)

MEMORANDUM^* 

Jesus Martinez-Ortiz appeals from the final judgment orally pronounced on February 23, 1987 and filed February 25, 1987. Martinez-Ortiz seeks a remand with directions that the district court rule on his motion for a recommendation against deportation. Martinez-Ortiz contends that the district court "declined to rule" on his motion and thereby failed to exercise its discretion. We disagree and affirm.

* On December 15, 1986, Martinez-Ortiz entered a plea of guilty to the crime of wilfully or knowingly concealing, harboring, or shielding an alien from detection not duly admitted by an immigration officer or lawfully entitled to enter and reside in the United States in violation of 8 U.S.C. § 1324(a) (3). Sentencing proceedings were scheduled for January 26, 1987.

The plea was entered freely and voluntarily but contrary to the advice of counsel. The record of the plea proceedings shows that Martinez-Ortiz harbored the alien because he was ill. Martinez-Ortiz received no money for providing such shelter.

On January 23, 1987, an order was filed pursuant to stipulation continuing the sentencing proceedings until February 23, 1987. The order reflected that the continuance was "entered into at the request of both parties to permit them to explore more fully the consequences of a felony conviction on Mr. Martinez's present eligibility for amnesty under the new immigration bill."

On February 13, 1987, counsel for Martinez-Ortiz filed a motion for a recommendation against deportation with respect to the charge for which the accused was awaiting sentence. Hearing was noticed for the same date as the sentencing proceedings. The moving papers state that the motion was made pursuant to 8 U.S.C. § 1251(b) (2). The moving papers and the supporting declaration do not assert or allege that Martinez-Ortiz was convicted of a crime involving moral turpitude within five years of entry.

On February 23, 1987, the court first sentenced Martinez-Ortiz to the custody of the Attorney General for a period of four years. Execution of this sentence was suspended. The defendant was placed on probation for five years. The court ordered payment of a special assessment of fifty dollars. Martinez-Ortiz was not ordered to serve a period of incarceration as a condition of probation.

After imposing sentence, the court asked defense counsel to address the effect of a felony conviction on Martinez-Ortiz's deportation status. Defense counsel then requested the court to grant Martinez-Ortiz's motion for a recommendation against deportation.

No evidence was presented in support of the motion. Specifically, no evidence was offered that Martinez-Ortiz committed a crime involving moral turpitude within five years of his entry into the United States. The government opposed the motion on the grounds that Section 1251(b) (2) was inapplicable because the crime committed by Martinez-Ortiz did not involve moral turpitude.

II

As noted above, Martinez-Ortiz contends that the district court did not rule on his motion. We review a determination whether to grant a recommendation against deportation for abuse of discretion. United States v. Raghunandan, 587 F. Supp. 423, 426 (W.D.N.Y. 1984).

We have jurisdiction in this matter because it is our view, as discussed below, that the district court entered a final order concerning the motion to recommend against deportation, as part of the sentencing proceedings.

In its first brief in this matter, the government asserted that " [t]his court has jurisdiction pursuant to 28 U.S.C. § 1291." Later, in a supplemental brief, the government changed its position and now claims that the district court's order was not final "because it relates to future amnesty or deportation proceedings." We believe the government was right the first time.

It is quite true that the district court did not use the magic word "deny" in ruling on Martinez-Ortiz's motion for a recommendation against deportation. Nevertheless, the comments made by the district court demonstrate that it rejected the motion. The court first commented that it could not "say that this is the type of offense that should not be considered by the immigration service." Later, the court stated "it seems to me that this is a matter for the Executive Branch, and I am not going to interfere with it." The trial judge expressed his final determination of the motion in the following language: "My ruling will be as I have previously indicated, that I will decline to recommend one way or the other with reference to his immigration status." We read the court's ruling as a denial of the motion to recommend against deportation and a sua sponte refusal to recommend in favor of deportation. Accordingly, the order of the district court rejecting Martinez-Ortiz's motion for a recommendation against deportation must be affirmed.

Nothing we have stated in this disposition should be construed as a determination that the offense committed by Martinez-Ortiz was a crime involving moral turpitude committed within five years of his entry into the United States. The record presented to the district court at the hearing on the challenged motion does not support such conclusion.

AFFIRMED.