IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 09-41061

UNITED STATES OF AMERICA,

Plaintiff - Appellee

v.

ARNULFO RODRIGUEZ-PEREZ,

Defendant - Appellant

Appeals from the United States District Court

for the Southern District of Texas

No. 1:09-cr-00805-ALL

Before JONES, Chief Judge, and DENNIS and CLEMENT, Circuit Judges.

PER CURIAM:

*

The defendant, Arnulfo Rodriguez-Perez, appeals his conviction under 8

U.S.C. § 1326(a) and (b) for illegal re-entry and his resulting 33-month sentence.

He argues that the district court abused its discretion in denying his motion for

appointment of an expert or an investigator. He also argues that his conviction

and sentence are invalid because they rely on his 1995 Florida conviction for

possession of cocaine, in which he alleges that he received ineffective assistance

of counsel. We AFFIRM.

United States Court of Appeals

Fifth Circuit

F I L E D

June 9, 2011

Lyle W. Cayce

Clerk

 Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not *

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

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I.

Rodriguez-Perez was arrested and charged with violating 8 U.S.C.

§ 1326(a) and (b). Section 1326 makes it unlawful for “any alien who-- (1) has

been denied admission, excluded, deported, or removed or has departed the

United States while an order of exclusion, deportation, or removal is

outstanding, [to] thereafter (2) enter[], attempt[] to enter, or [to] at any time [be]

found in, the United States,” unless the alien falls within one of two exceptions

that are not applicable in this case.

Prior to trial, Rodriguez-Perez, proceeding pro se at his request, filed a

motion asking that “the court . . . permit him the help that the Federal

government allows a defendant,” including the appointment of “investigators

[and] experts,” pursuant to 18 U.S.C. § 3006A(e)(1). Approximately a week later,

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he filed a second motion requesting “the assistance of investigators, experts, and

other services necessary for an adequate defense.” Neither motion specified why

Rodriguez-Perez required the assistance of an expert or investigator, nor did

they request a hearing on the motions. The district court denied both motions,

stating that “Defendant has not presented this Court with any justification for

what the investigators or experts could help him discover or testify to on his

behalf. . . . Until the Defendant provides to this Court a description of what

evidence admissible at his trial the experts or investigators will help him

present, then his request is DENIED.” Rodriguez-Perez did not renew his

motions.

That provision reads in full: “Counsel for a person who is financially unable to obtain 1

investigative, expert, or other services necessary for adequate representation may request

them in an ex parte application. Upon finding, after appropriate inquiry in an ex parte

proceeding, that the services are necessary and that the person is financially unable to obtain

them, the court, or the United States magistrate judge if the services are required in

connection with a matter over which he has jurisdiction, shall authorize counsel to obtain the

services.” 18 U.S.C. § 3006A(e)(1).

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Rodriguez-Perez also filed numerous motions arguing that his 1995

Florida conviction for possession of cocaine was unlawful for a number of

different reasons, including that he received ineffective assistance of counsel

resulting in his guilty plea. In response, the Government filed a motion in limine

seeking to “prohibit Defendant from offering testimony or argument regarding

his 1995 [Florida] conviction for Possession of Cocaine and related charges.” “The

government anticipate[d] that Defendant w[ould] attempt to re-litigate his prior

Possession of Cocaine conviction” and thus “request[ed] that Defendant be

precluded from referencing his prior drug offense so as to avoid confusing the

jury and re-litigating a matter that is wholly irrelevant to establishing or

countering the elements of the offense for which Defendant currently stands

charged.” The district court granted the motion, stating “Defendant’s prior

conviction of a drug offense . . . is a relevant sentencing factor, not an element

of the offense which the Government must prove at trial.”

The case proceeded to trial by jury. The Government’s witnesses testified

that Rodriguez-Perez was apprehended walking around a checkpoint near the

Texas-Mexico border and that he admitted to being an alien. A search of his

administrative file revealed that he was not a United States citizen and that he

had previously been deported from the United States to Mexico. Rodriguez-Perez

testified as the only witness in his defense. He claimed to be an “American,” but

then admitted on cross-examination that he was born in Mexico and had been

previously deported. The jury found Rodriguez-Perez guilty of one count of

violating 8 U.S.C. § 1326(a) and (b).

The pre-sentence report stated that the conviction carried a base offense

level of 8 and that the defendant’s criminal history justified a 4-level

enhancement under U.S.S.G. § 2L1.2(b)(1)(D), producing a total offense level of

12. Section 2L1.2(b)(1)(D) provides that a defendant’s offense level should be

“increase[d] by 4 level[s]” “[i]f the defendant previously was deported, or

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unlawfully remained in the United States, after . . . a conviction for any . . .

felony” for which a different enhancement is not specified in the provision. The

pre-sentence report stated that the defendant was “last deported” on May 4,

2009 and thus any one of three convictions could justify the enhancement: (1) the

1995 Florida conviction for possession of cocaine; (2) a 2001 conviction for illegal

re-entry; or (3) a March 2, 2009 conviction for illegal re-entry. The report also

calculated that the defendant fell into criminal history category V. It did not

assign any criminal history category points for the defendant’s 1995 Florida

conviction. Rodriguez-Perez’s offense level of 12 and criminal history category

of V resulted in a recommended Sentencing Guidelines sentencing range of 27

to 33 months of imprisonment. The probation officer recommended a 33-month

sentence because of the defendant’s criminal history, particularly his multiple

convictions for illegal re-entry.

The district court adopted the findings of the pre-sentence report and the

probation officer’s recommendation, and sentenced the defendant to 33 months

of imprisonment. In light of the defendant’s claim that he received ineffective

assistance of counsel resulting in his 1995 Florida conviction, an argument that

the defendant renewed at sentencing, the district court noted that no criminal

history category points had been added based on that conviction, that the court

would not upwardly depart under the Guidelines based on the defendant’s

criminal history, and that the defendant’s two prior convictions for illegal reentry could “each individually serve as a basis” for the 4-level upward

adjustment to the defendant’s offense level imposed under U.S.S.G.

§ 2L1.2(b)(1)(D).

On appeal, now represented by counsel, the defendant presses two

arguments: (1) that the district court abused its discretion in denying the

defendant’s motion for the appointment of an expert or investigator; and (2) that

the defendant’s conviction and sentence are invalid because his 1995 Florida

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conviction for possession of cocaine resulted from ineffective assistance of

counsel. We address each argument in turn.

II.

“[W]e review the district court’s denial of [the defendant’s] motion for

expert appointment under [18 U.S.C. § 3006A(e)] for abuse of discretion.” United

States v. Hardin, 437 F.3d 463, 468 (5th Cir. 2006). Our holdings do not “require

in all circumstances that [the] district court hold a hearing on an ex parte

application for appointment under § 3006A(e).” Id. at 470. “Neither the statute’s

plain language nor our caselaw interpreting it supports such a broad rule.” Id.

(citing United States v. Gadison, 8 F.3d 186, 191 (5th Cir. 1993); United States

v. Scott, 48 F.3d 1389, 1395-96 (5th Cir. 1995)). “[T]he language of the statute

requires [only] that the expert services not be authorized in the absence of an

‘appropriate inquiry in an ex parte proceeding’ and two determinations by the

court: that the services are necessary for an adequate defense and that the

defendant is financially unable to obtain those necessary services.” Id. (quoting

18 U.S.C. § 3006A(e)(1)). Moreover, we have explained that the burden is on the

defendant “[t]o justify the authorization of investigative services under

§ 3006A(e)(1), . . . demonstrat[ing] with specificity[] the reasons why such

services are required.” Gadison, 8 F.3d at 191 (citing United States v. Davis, 582

F.2d 947, 951 (5th Cir. 1978)). As explained above, the defendant did not provide

any justification for why he needed an expert or investigator in either of his

motions before the district court, nor does he provide such a justification in his

brief before this court. Therefore, the district court did not abuse its discretion

in denying Rodriguez-Perez’s motion for appointment of an expert or

investigator.

III.

Rodriguez-Perez also argues on appeal that his instant conviction and

sentence are unlawful because they are based on his 1995 Florida conviction for

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possession of cocaine, which was unconstitutional because it resulted from

ineffective assistance of counsel. He highlights that last year the Supreme Court

held “that advice regarding deportation is not categorically removed from the

ambit of the Sixth Amendment right to counsel.” Padilla v. Kentucky, 130 S. Ct.

1473, 1482 (2010). In fact, “constitutionally competent counsel” must advise their

criminal-defendant clients if a conviction would “subject [them] to automatic

deportation,” and the client may bring a claim of ineffective assistance under

Strickland v. Washington, 466 U.S. 668 (1984), for his counsel’s failure to provide

such advice. Padilla, 130 S. Ct. at 1478. Rodriguez-Perez claims that he was not

informed that his 1995 guilty plea would subject him to deportation and had he

known of such a consequence, he would not have pled guilty and instead would

have proceeded to trial. Therefore, he argues that in light of Padilla his 1995

conviction was unconstitutionally obtained, his subsequent deportation based on

that conviction was invalid, and each of his subsequent convictions and

sentences for illegal re-entry, including those in the instant case, are also

invalid. Without deciding whether Padilla provides Rodriguez-Perez a claim that

his 1995 conviction was unconstitutional, we conclude that his arguments

against his instant conviction and sentence are unavailing.

A defendant may collaterally attack a prior conviction on the ground that

it occurred in violation of his Sixth Amendment right to the appointment of

counsel: “There is . . . a historical basis in our jurisprudence of collateral attacks

for treating the right to have counsel appointed as unique . . . .” Custis v. United

States, 511 U.S. 485, 494 (1994). “To permit a conviction obtained in violation of

Gideon v. Wainwright to be used against a person either to support guilt or

enhance punishment for another offense” re-introduces that prior conviction’s

“constitutional error” into the present proceeding, “den[ying]” the Sixth

Amendment right to counsel “anew.” Burgett v. Texas, 389 U.S. 109, 115 (1967).

The courts “cannot permit such a result unless Gideon v. Wainwright is to suffer

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serious erosion.” Id. at 116. However, collateral attacks on a prior conviction

claiming that the prior conviction was unlawful because of “the denial of the

effective assistance of counsel” do not “rise[] to the level of a jurisdictional defect

resulting from the failure to appoint counsel at all.” Custis, 511 U.S. at 496; see

also United States v. Arango-Montoya, 61 F.3d 1331, 1336 (7th Cir. 1995) (“The

Supreme Court emphasized that collateral review of a prior conviction for failure

to appoint counsel, as opposed to other collateral attacks to a prior conviction,

is allowed because failing to appoint counsel for an indigent defendant is a

unique constitutional defect.” (citing Custis, 511 U.S. at 496)); United States v.

Daly, 28 F.3d 88, 89 (9th Cir. 1994) (“A sole exception to the prohibition against

collateral attack of previous state convictions is for the indigent defendant who

was not appointed counsel at his state trial. Claims of denial of effective

assistance of counsel, where counsel was appointed, and involuntarily pleading

guilty do not fall within this exception.” (citation omitted) (citing Custis, 511 U.S.

at 496)). Therefore, absent specific statutory authorization to bring such a

collateral attack in a later proceeding, a claim of ineffective assistance of counsel

does not provide a basis on which a defendant can collaterally attack a prior

conviction on which his present conviction or sentence rests.

Defendants charged under 8 U.S.C. § 1326 are authorized by the statute

to bring an additional type of collateral attack. The statute states that “[i]n a

criminal proceeding under this section, an alien may not challenge the validity

of the deportation order . . . unless the alien demonstrates that-- (1) the alien

exhausted any administrative remedies that may have been available to seek

relief against the order; (2) the deportation proceedings at which the order was

issued improperly deprived the alien of the opportunity for judicial review; and

(3) the entry of the order was fundamentally unfair.” 8 U.S.C. § 1326(d). “This

rule effectively codifies the Supreme Court’s decision in United States v.

Mendoza-Lopez, 481 U.S. 828 (1987), which, as interpreted by our precedent,

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permits a collateral constitutional challenge [to the underlying deportation

proceeding] if the alien can ‘establish that (1) the prior hearing was

“fundamentally unfair”; (2) the hearing effectively eliminated the right of the

alien to challenge the hearing by means of judicial review of the order; and (3)

the procedural deficiencies caused the alien actual prejudice.’” United States v.

Villanueva-Diaz, 634 F.3d 844, 849-50 (5th Cir. 2011) (quoting United States v.

Lopez-Vasquez, 227 F.3d 476, 483 (5th Cir. 2000)). Therefore, even if a court

could conclude that the instant conviction is unlawful because it is based on an

order of removal which in turn is unlawful because it was based on a conviction

resulting from ineffective assistance of counsel, § 1326(d) does not allow such an

argument or conclusion unless Rodriguez-Perez can make out the three elements

required by the Supreme Court and codified in the statute. Rodriguez-Perez has

not even alleged these elements.

IV.

For the foregoing reasons, we AFFIRM the defendant’s conviction and

sentence.

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