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People v. Garcia

Court of Appeals of Colorado, First Division

July 3, 2014

The People of the State of Colorado, Plaintiff-Appellee,
v.
Esteban Zamora Garcia, Defendant-Appellant

Page 914

Jefferson County District Court No. 09CR2835. Honorable Randall C. Arp, Judge.

John W. Suthers, Attorney General, Kevin E. McReynolds, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

Douglas K. Wilson, Colorado State Public Defender, Mark Evans, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.

Bernard and Rothenberg[*], JJ., concur.

OPINION

TAUBMAN, JUDGE

Page 915

[¶1] Defendant, Esteban Zamora Garcia, appeals the trial court's revocation of his probation based on its finding that he entered the United States illegally for the third time without a valid visa. He argues that only a federal immigration judge may determine the legal status of an immigrant. The People, however, contend that the appeal is moot because Garcia was removed from the United States after serving his sentence, and is permanently barred from reentry as a result of his criminal impersonation conviction. We agree with the People, and dismiss the appeal.

I. Background

[¶2] In 2010, Garcia pleaded guilty to criminal impersonation for providing a false name and false identification documents to police officers when they pulled him over for driving under the influence (DUI). The trial court sentenced him to sixty months of probation and one year in jail for his DUI conviction, on condition that he " voluntarily or involuntarily depart [the United States] and not reenter without inspection and visa."

[¶3] After Garcia filed a motion for sentence reconsideration, the trial court waived his remaining jail time and released him to the custody of Immigration and Customs Enforcement (ICE) for deportation.

[¶4] A year later, Garcia returned to the United States. The police arrested him again for a traffic violation and charged him with violating the conditions of his probation by returning to the United States without a valid visa.

[¶5] The trial court revoked Garcia's probation after finding that he had reentered the United States without a valid passport or visa. This finding was based on (1) ICE records verifying Garcia's identity and May 2010 removal; (2) the ICE immigration detainer notice issued after his latest arrest; (3) Garcia's very presence, which showed that he had reentered the United States; and (4) his refusal to answer any questions on Fifth Amendment grounds during the probation revocation hearing.

[¶6] The trial court resentenced him to one year in the custody of the Department of Corrections, with credit for 211 days served. After Garcia completed his sentence, ICE deported him for the third time. In 2012, Garcia returned to the ...


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