United States v. Gerardo Reyes-Castro

Citations: 13 F.3d 377; 1993 U.S. App. LEXIS 33990; 1993 WL 539808Docket: 93-4038

Court: Court of Appeals for the Tenth Circuit; December 30, 1993; Federal Appellate Court

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Gerardo Reyes-Castro was convicted of re-entering the United States after deportation, violating 8 U.S.C. § 1326. He appealed the district court's denial of his motions to dismiss the indictment and to suppress evidence regarding his prior deportation, arguing that the Immigration and Naturalization Service (INS) incorrectly classified his prior state conviction for attempted sexual abuse of a child as an "aggravated felony," rendering his deportation unlawful. Reyes-Castro had pled guilty to a reduced charge related to sexually abusing his daughter and was subsequently deported by the INS.

On appeal, the court affirmed the district court's decision, stating that a collateral challenge to the constitutional validity of deportation proceedings is a mixed question of law and fact, reviewed de novo. The Supreme Court's ruling in Mendoza-Lopez allows for such challenges if an alien can show that the deportation hearings were fundamentally unfair and deprived them of judicial review. Reyes-Castro asserted that his deportation was fundamentally unfair due to the alleged misclassification of his conviction. The classification hinges on whether attempted sexual abuse of a child constitutes a "crime of violence" under 18 U.S.C. § 16, which defines it based on the use or threatened use of physical force or involving substantial risk of such force. The court did not find merit in Reyes-Castro's claims, affirming the legality of his deportation and subsequent re-entry charge.

Mr. Reyes-Castro was convicted of sexual abuse of a child under Utah law, which criminalizes any inappropriate touching of a child for sexual gratification. The government argued that this offense falls under 18 U.S.C. Sec. 16(b) due to its inherent risk of physical force, aligning with Eighth Circuit precedent that categorizes similar crimes as violent. The district court supported this view, emphasizing that the statutory definition suffices for determining a crime's classification, regardless of the circumstances. It noted that under Utah law, rape does not require physical force as an element, yet is recognized as a violent crime due to the inherent risk of non-consensual acts. Since Mr. Reyes-Castro's victim was under 14, she was legally incapable of consent, further substantiating the argument that attempted sexual abuse inherently carries a substantial risk of violence.

Additionally, the court assessed whether Mr. Reyes-Castro's conviction constituted an "aggravated felony," which requires a prison term of at least five years. He was convicted of attempted sexual abuse of a child, classified as a third-degree felony in Utah, and received a sentence not exceeding five years, which was suspended in part and included probation. He served one year and was deported upon release.

An indeterminate sentence refers to a prison term defined by a maximum period set by law, which can end after serving a minimum period. Under Utah law, Mr. Reyes-Castro's sentence is interpreted as a five-year term. According to Title 8 U.S.C. Sec. 1101(a)(43), the imprisonment term must be a minimum of five years, irrespective of any suspension. Although Mr. Reyes-Castro was sentenced to one year in jail with potential early release after three months, the conditions leading to this shorter term were part of a suspended sentence. As such, both the suspension and its enabling conditions must be disregarded, affirming that Mr. Reyes-Castro's sentence qualifies as at least five years under the statute. Consequently, he is deemed an "aggravated felon." The district court's rejection of Mr. Reyes-Castro's motions to dismiss and suppress deportation evidence is upheld. A typographical error in the judgment incorrectly states that he pled guilty to an offense that does not exist in Utah, leading to the suppression of evidence related to that plea. Additionally, his motion to suppress statements made to an INS officer without Miranda warnings was granted. The applicable Iowa statute prohibits individuals over eighteen from engaging in sexual acts with minors, regardless of consent, specifically including actions like fondling or touching a child’s genitals.