Appeal from the United States District Court for the Eastern District of Washington. D.C. No. CR 92-351-WFN. Wm. Fremming Nielsen, District Judge, Presiding.
Before: Alfred T. Goodwin, Mary M. Schroeder and William A. Norris, Circuit Judges. Opinion by Judge Goodwin.
Filemon Arzate-Nunez appeals his guilty plea conviction of being an alien in the United States after deportation and conviction of an aggravated felony. 8 U.S.C. § 1326(b)(2). He argues that the district court erred in denying his motion to dismiss the indictment and in accepting his conditional guilty plea. We affirm.
I. FACTS & PROCEDURAL BACKGROUND
Arzate-Nunez is a citizen of Mexico who has spent significant time in the United States. In 1985, he was convicted in California state court of the sale or transportation of a narcotic, a felony under California Health & Safety Code § 11352. He served less than 90 days in jail. In January 1992, he was again arrested by officers investigating a drug conspiracy. The federal District Court of Washington, Eastern Division dismissed the charges arising out of this incident without prejudice. However, on April 4, 1992, the INS deported Arzate-Nunez based on his immigration status. Before his deportation, the INS sent Arzate-Nunez a warning letter stating that "any deported person who within five years returns without permission is guilty of a felony . . . [and] may be punished by imprisonment of not more than two years and/or a fine of not more than $1,000.00."
In early December 1992, Arzate-Nunez reentered the United States. According to his counsel, Arzate-Nunez showed his passport to a United States Border Patrol agent on duty at the Tijuana, Mexican Border Patrol Post. After glancing at the passport, which was apparently valid from December 30, 1987 through December 29, 1992, the border patrol agent waived Arzate-Nunez through the checkpoint.
On December 4, 1992, federal agents investigating a Washington state drug conspiracy obtained a warrant to search a certain yellow Thunderbird car. Several of the investigating agents had also been involved in the investigation that led to Arzate-Nunez's January 1992 arrest and deportation. On December 6, these agents recognized Arzate-Nunez as a passenger in the yellow Thunderbird. Since they knew Arzate-Nunez had been deported less than eight months previously, they advised other agents that Arzate-Nunez was in the country illegally.
On December 7, 1992, agents watching the yellow Thunderbird again saw Arzate-Nunez in the car. When the vehicle headed south out of Okanogan County, they stopped the car and arrested Arzate-Nunez for being an alien in the United States after deportation.
Arzate-Nunez was subsequently indicted under 8 U.S.C. § 1326(b)(2), under which an alien who reenters the country without permission after being deported "subsequent to a conviction for commission of an aggravated felony" may be sentenced to 15 years imprisonment.*fn1 The government alleged that Arzate-Nunez's 1985 state drug conviction was an aggravated felony within the meaning of 8 U.S.C. § 1102(a)(43).
Arzate-Nunez timely moved to dismiss the indictment based on the ex post facto clause and the language of 8 U.S.C. § 1101(a)(43). He also argued that his arrest may have violated the Fourth Amendment and moved to discover the affidavit filed in support of the search warrant, which was filed under seal. The government opposed this discovery motion, contending that disclosing the affidavit would compromise ongoing drug investigations and endanger police informants and arguing that the legality of the search warrant was irrelevant to Arzate-Nunez's case. According to the government, the agents had an independent legal basis to stop the yellow Thunderbird because they recognized Arzate-Nunez as a person who had been deported.
At a March 5 pretrial conference, federal agents testified that they had recognized Arzate-Nunez before stopping the car. In addition, Arzate-Nunez produced the 1992 INS warning letter, alleging that the INS's inaccurate notice about the possible penalties for reentry violated his due process rights. The district court rejected Arzate-Nunez's ex post facto, statutory interpretation and Fourth Amendment claims orally and rejected the due process argument in a written order four days later.
Thereafter, Arzate-Nunez entered a conditional guilty plea agreement pursuant to Fed. R. Crim. P. 11(a)(2), reserving his right to appeal "the denial of his motion to dismiss filed February 26, 1992." At the plea taking, Arzate-Nunez's lawyer argued for the first time that Arzate-Nunez could not be guilty of entering the country without permission because the border patrol agent waived him across the Tijuana checkpoint, thereby consenting to his reentry. After determining that counsel had warned Arzate-Nunez that he might waive this defense if he pled guilty, the district court accepted Arzate-Nunez's guilty plea. The court then sentenced Arzate-Nunez to forty-one months of incarceration and two years of supervised release, as recommended in the written plea agreement. Arzate-Nunez appealed.
Arzate-Nunez argues that his conviction violates the ex post facto clause because, at the time of his 1985 offense, his crime was not defined as an aggravated felony. The state statute under which he was convicted, California Health & Safety Code § 11352, defined his offense as a regular, rather than an aggravated, felony. Federal law did not define his offense as an aggravated felony until 1988, and the Sentencing Guidelines which provide for enhanced penalties for reentry following an aggravated felony were not effective until November 1991. See 8 U.S.C. § 1101(43) (defining "illicit trafficking in any controlled substance" as an aggravated felony); U.S.S.G. § 2L1.2 (providing for a sixteen-point upward adjustment in the base offense level of defendants who were deported after being convicted of an aggravated felony).
We review an alleged ex post facto violation de novo. United States v. Baker, 10 F.3d 1374, 1394 (9th Cir. 1993), amended by - F.3d - (1993) (citing United States ...