from the United States District Court for the District of New
Mexico (D.C. No. 2:15-CR-01030-JB-1)
Margaret A. Katze, Assistance Federal Public Defender, Office
of the Federal Public Defender, Albuquerque, New Mexico, for
Paige Messec, Assistant United States Attorney (Damon P.
Martinez, United States Attorney, with her on the brief),
Office of the United States Attorney, Albuquerque, New
Mexico, for Plaintiff-Appellee.
BRISCOE, EBEL, and MURPHY, Circuit Judges.
direct criminal appeal, Defendant-Appellant Manuel
Sandoval-Enrique seeks to withdraw his guilty plea to one
count of unlawfully reentering the United States after a
previous removal. Sandoval-Enrique pled guilty without the
benefit of any plea agreement. In seeking now to withdraw
that plea, Sandoval-Enrique contends that the district court
abused its discretion in rejecting two previous plea
agreements he reached with the Government and then improperly
inserted itself into the plea negotiations. Having
jurisdiction under 28 U.S.C. § 1291 and finding no error
that would permit Sandoval-Enrique to withdraw his guilty
plea, we AFFIRM his conviction.
THIS APPEAL REMAINS JUSTICIABLE
threshold jurisdictional matter, see United States v.
Vera-Flores, 496 F.3d 1177, 1180 (10th Cir. 2007), the
Government contends this appeal is moot because
Sandoval-Enrique has fully served his prison sentence imposed
in this case and has now been deported. We disagree with the
Government's argument, and DENY the Government's
motion to dismiss the appeal for mootness.
Government is correct that an appeal challenging a
sentence becomes moot when the defendant fully
serves that sentence, see Lane v. Williams, 455 U.S.
624, 631 (1982), unless he can show that he remains subject
to collateral consequences even after completing the
sentence, see United States v. Juvenile Male, 564
U.S. 932, 936 (2011).
Sandoval-Enrique is not challenging his sentence; instead he
is seeking to withdraw his guilty plea and to have his
conviction vacated. Such relief would be available should he
prevail on the grounds for relief he asserts on appeal.
See Lane, 455 U.S. at 630-31 (recognizing defendant
may seek to withdraw guilty plea and have conviction vacated
to correct error in plea process); see also United States
v. Vanderwerff, 788 F.3d 1266, 1267, 1279 (10th Cir.
2015) (vacating conviction and ordering that defendant be
allowed to withdraw his guilty plea because district court
abused its discretion in rejecting prior plea agreement);
United States v. Cano-Varela, 497 F.3d 1122, 1123,
1135 (10th Cir. 2007) (vacating defendant's guilty plea
because district court improperly participated in plea
appeal such as this one challenging a conviction
does not become moot when the defendant completes his prison
sentence because we presume that a defendant remains subject
to collateral consequences that continue to flow from the
existence of the challenged conviction even after the
sentence has been served. See Spencer v. Kemna, 523
U.S. 1, 8-12 (1998); Sibron v. New York, 392 U.S.
40, 50-58 (1968). The fact that a defendant has also been
deported does not change that presumption. See United
States v. Quezada-Enriquez, 567 F.3d 1228, 1232 n.2
(10th Cir. 2009).
Government argues that it can rebut this presumption if it
can show that there is no possibility that any collateral
legal consequences will be imposed on the basis of the
challenged conviction. Assuming, without deciding, that the
presumption is rebuttable and can be rebutted in this way,
the Government has failed to make such a showing here.
Government contends that the existence of the conviction
Sandoval-Enrique challenges in this appeal will not affect
his immigration status because he has prior convictions that
already bar him from seeking lawful admission to the United
States for twenty years from the date of his most recent
deportation and the conviction at issue here will not change
that. Accepting without deciding the accuracy of
the Government's assertion, this still means that in
twenty years Sandoval-Enrique could seek to reenter the
United States lawfully. The Government has not shown that, at
that time, "there is no possibility, "
Sibron, 392 U.S. at 57, that the existence of the
conviction he challenges here would subject Sandoval-Enrique
to any collateral consequences. Thus, the appeal is not moot.
SANDOVAL-ENRIQUE IS NOT ENTITLED TO WITHDRAW HIS GUILTY
then to the merits of this appeal. Sandoval-Enrique seeks to
withdraw his guilty plea, claiming that the district court 1)
abused its discretion in rejecting two plea agreements he
reached with the Government, and 2) improperly inserted
itself into the plea negotiations. Neither argument warrants
a citizen of Honduras, fled with his family from Honduras to
Mexico, where they were granted asylum. From Mexico,
Sandoval-Enrique then came to the United States unlawfully to
work. On multiple occasions when authorities discovered
Sandoval-Enrique in the United States illegally, he was
deported without being charged criminally. But on three prior
occasions (October 2001, May 2006, September 2006),
Sandoval-Enrique was charged and convicted of unlawfully
entering or reentering the United States after having been
previously removed. On each of those occasions,
Sandoval-Enrique served some time in jail and was then
deported. As a result of his third conviction,
Sandoval-Enrique served sixteen months in prison before being
removed from the United States.
current criminal prosecution began when the Border Patrol
discovered Sandoval-Enrique unlawfully in New Mexico in
February 2015. The United States charged him with unlawfully
reentering the United States after removal, in violation of 8
U.S.C. § 1326(a), (b). Pursuant to the District of New
Mexico's "fast-track" program, Sandoval-Enrique
entered into a Fed. R. Crim. P. 11(c)(1)(C) plea agreement
with the Government that provided that he would plead guilty
and waive his appeal rights in return for a four-level
reduction in his base offense level and a sentence within the
guideline range calculated using that lowered offense level,
between two and eight months in prison.
Rule 11(c)(1)(C) agreement would have been binding on the
district court had the court accepted it. The district court,
however, rejected the plea agreement. See Fed. R.
Crim. P. 11(c)(3)(A). In doing so, the court noted that
Sandoval-Enrique had previously received a sixteen-month
sentence for his most recent unlawful reentry conviction, in
2006, and in light of that, the sentencing range to which the
parties had agreed in this case, two to eight months in
prison, did not give the district court the ability to impose
a sentence that promotes respect for the law, affords
adequate deterrence, or provides a just punishment, as 18
U.S.C. § 3553(a) requires.
defense's request, the district court continued the
sentencing proceeding. Three months later, the parties entered
into a second Rule 11(c)(1)(C) plea agreement, this time
agreeing to a ten-month sentence. The district court rejected
that agreement, too, because it did not
give the Court the options that it needs to sentence
[Sandoval-Enrique] correctly. Sixteen months [served on his
third conviction] did not keep him out of the United States;
145 days [served on his first conviction] didn't keep him
out; 43 . . . days [served on his second conviction]
didn't keep him out. He's had six deportations.
I don't think a sentence of ten is sufficient to reflect
the 3553(a) factors. It's not deterring him. And I
don't think a sentence of ten months is appropriate. . .
(III R. 92.) The district court again informed
Sandoval-Enrique that he had the "right to
withdraw" his "plea of guilty and proceed to
counsel then asked the court if it could "possibly share
any more of its thoughts on what would be a fair sentence and
also the reason behind it? Is it just the fact that he had a
16 month sentence and came back after that, and therefore,
anything less than 16 months would not be satisfactory?"
(Id. 93.) The court responded:
Well, as I indicated, I didn't think the sentences that
were being presented last time, which would have been eight
months-so you've given me two more months-I don't
think that either one of those [is] adequate. He has arrests
in the country for other things. I know he hasn't been
convicted of those, but he has had interactions with law
enforcement when he's been in the United States. So I
think with some interaction with law enforcement, the
sentence needs to reflect the seriousness of the offense. And
I don't think giving him something in the eight month
range or ten month range that's been presented twice to
the Court promotes respect for the law or provides a just
punishment, affords adequate deterrence, either at a specific
or general level. I can't use supervised release. I'm