United States v. Santiago Rodriguez-Aparicio

Case: 17-40165 Document: 00514441735 Page: 1 Date Filed: 04/23/2018 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED No. 17-40165 April 23, 2018 Lyle W. Cayce UNITED STATES OF AMERICA, Clerk Plaintiff - Appellee v. SANTIAGO HUMBERTO RODRIGUEZ-APARICIO, Defendant - Appellant Appeal from the United States District Court for the Southern District of Texas Before KING, HAYNES, and HIGGINSON, Circuit Judges. KING, Circuit Judge: Discontent with the services of his federal public defender, Santiago Humberto Rodriguez-Aparicio opted to represent himself. A two-day jury trial yielded a conviction on a charge of illegal reentry. On appeal, he argues that the district court effectively denied him the right to testify in his own defense. During a hearing focused on his waiver of the right to counsel, Rodriguez told the court that he understood he would receive “two more points” at sentencing if he testified. According to his argument on appeal, that triggered a duty to set him straight and explain that the penalty was not, in fact, automatic. Under the circumstances, we hold that there was no such duty. Rodriguez also contends that the district court should have dismissed his indictment based on Case: 17-40165 Document: 00514441735 Page: 2 Date Filed: 04/23/2018 No. 17-40165 defects in his removal proceedings. But he concedes that our precedent forecloses this argument. As a result, we AFFIRM his conviction and sentence. I. A. Santiago Humberto Rodriguez-Aparicio is a citizen of El Salvador. He was admitted into the United States as a lawful permanent resident in 1994. Thirteen years later, in 2007, U.S. Immigration and Customs Enforcement (“ICE”) sought to remove him from the country based on a California firearm conviction. See 8 U.S.C. § 1227(a)(2)(C) (providing for removal of “[a]ny alien who at any time after admission is convicted under any law of . . . possessing[] or carrying . . . a firearm”). ICE served Rodriguez with a document titled “Stipulated Request for Removal Order and Waiver of Hearing Made By Respondent Who is Unrepresented.” Rodriguez signed the stipulation. In doing so, he admitted to the facts alleged by ICE. He also waived his right to an attorney, a hearing, discretionary relief, and any appeal of the immigration judge’s order. An immigration judge then ordered Rodriguez removed. ICE dispatched him to El Salvador by plane the next month. In 2009, Rodriguez was charged in the District of Nevada with illegal reentry and illegal possession of a firearm and ammunition. He moved to dismiss the indictment, arguing that the immigration judge’s failure to advise him of his eligibility for voluntary departure violated his right to due process. The Government declined to respond and instead moved to dismiss the illegal reentry count of the indictment. Rodriguez was convicted following a jury trial on the remaining counts and sentenced to 41 months’ incarceration. He was removed from the United States two years later. Rodriguez once again turned up in the United States in March 2015, when U.S. Customs ...

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