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Fuentes-Espinoza v. People

Supreme Court of Colorado, En Banc

October 10, 2017

Bernardino Fuentes-Espinoza, Petitioner
v.
The People of the State of Colorado. Respondent

         Certiorari to the Colorado Court of Appeals Court of Appeals Case No. 08CA1231

          Attorneys for Petitioner: Douglas K. Wilson, Public Defender Ned R. Jaeckle, Deputy Public Defender

          Attorneys for Respondent: Cynthia H. Coffman, Attorney General John T. Lee, Assistant Attorney General

          Attorneys for Amici Curiae The National Immigration Law Center, Colorado Immigrant Rights Coalition, American Civil Liberties Union of Colorado, and South Carolina Appleseed Legal Justice Center: The Meyer Law Office Hans Meyer, The National Immigration Law Center Nicholás Espíritu Melissa Keaney

          OPINION [*]

          GABRIEL, JUSTICE

          ¶1 In this case, petitioner Bernardino Fuentes-Espinoza challenges his convictions under Colorado's human smuggling statute, section 18-13-128, C.R.S. (2017), on the ground that that statute is preempted by the federal Immigration and Nationality Act, 8 U.S.C. §§ 1101-1537 (2017) ("INA").[1] The court of appeals division below did not consider Fuentes-Espinoza's preemption argument because it was unpreserved. People v. Fuentes-Espinoza, 2013 COA 1, ¶ 16, __P.3d __. We, however, choose to exercise our discretion to review that argument and conclude that the INA preempts section 18-13-128 under the doctrines of both field and conflict preemption.

         ¶2 In reaching this conclusion, we agree with a number of federal circuit courts that have reviewed the same INA provisions at issue here and have determined that those provisions create a comprehensive framework to penalize the transportation, concealment, and inducement of unlawfully present aliens and thus evince a congressional intent to occupy the field criminalizing such conduct. In addition, applying the analyses set forth in those federal decisions, we conclude that section 18-13-128, like the state human smuggling statutes at issue in the federal cases, stands as an obstacle to the accomplishment and execution of Congress's purposes and objectives in enacting its comprehensive framework.

         ¶3 Accordingly, we reverse the division's judgment and remand this case for further proceedings consistent with this opinion.

         I. Facts and Procedural History

         ¶4 In 2007, Fuentes-Espinoza was walking along the Las Vegas Strip when an individual approached him and offered him $500 to drive several family members from Phoenix to Kansas. Fuentes-Espinoza accepted the offer, and he and a friend rode to Phoenix with the man who had made the offer. When the group arrived in Phoenix, Fuentes-Espinoza and his friend were dropped off at an apartment, where they waited for the man to return.

         ¶5 That evening, the man returned with a van full of people. The man gave Fuentes-Espinoza $600 in travel money, as well as a map that had the man's telephone number on it. Fuentes-Espinoza, his friend, and the people in the van then set off on the trip to Kansas.

         ¶6 En route, Fuentes-Espinoza stopped at a gas station in Wheat Ridge, Colorado to get gas and to repair a broken taillight. As pertinent here, he went into the station to pay and gave the clerk a one-hundred-dollar bill, which apparently had been included in the travel money that Fuentes-Espinoza had received. The clerk determined that the bill was counterfeit and called the police.

         ¶7 An officer responded to the gas station, and as he approached, two individuals from the van took off running and, apparently, were not apprehended. The officer then arrived at the station, and after speaking with the clerk, he questioned Fuentes-Espinoza about the counterfeit bill and the people in the van. Fuentes-Espinoza told inconsistent stories about where he had obtained the counterfeit bill and where he was going, and the officer arrested him for passing the bill.

         ¶8 The officer then spoke with the people in the van and requested identification from them. After doing so, the officer spoke with his supervisor to report on his investigation and to get further instructions. The supervisor told the officer to bring the group to the police station, and the officer did so. The officer then called the human smuggling hotline, and the hotline sent representatives to the station to assist.

         ¶9 The People ultimately charged Fuentes-Espinoza with one count of forgery (for passing the counterfeit bill) and seven counts of human smuggling in violation of section 18-13-128.

         ¶10 Under section 18-13-128, a person commits a class 3 felony

if, for the purpose of assisting another person to enter, remain in, or travel through the United States or the state of Colorado in violation of immigration laws, he or she provides or agrees to provide transportation to that person in exchange for money or any other thing of value.

§ 18-13-128(1), (2). Class 3 felonies carry a presumptive sentencing range of four to twelve years' imprisonment. § 18-1.3-401(1)(a)(V)(A), C.R.S. (2017).

         ¶11 The case proceeded to trial, and a jury ultimately acquitted Fuentes-Espinoza of forgery but convicted him on each of the human smuggling counts. The court subsequently sentenced him to concurrent four-year terms on each of the seven counts.

          ¶12 Fuentes-Espinoza appealed, and as pertinent here, he argued for the first time that federal law preempts section 18-13-128. He further asserted that section 18-13-128 required the People to prove that the people he had transported were present in violation of the immigration laws. The division rejected both arguments and, in a split decision, affirmed Fuentes-Espinoza's convictions. Fuentes-Espinoza, ¶¶ 2-3, 61. ¶13 Regarding the preemption issue, the majority concluded that Fuentes-Espinoza's arguments were not properly before the court because Fuentes-Espinoza had not made those arguments before the trial court. Id. at ¶¶ 10-16.

         ¶14 Regarding the question of what section 18-13-128 required the People to prove, the majority noted that "by including the actor's purpose as an element of the crime, [section 18-13-128] emphasizes the actor's intent, rather than the outcome of his or her actions." Id. at ¶ 30. Thus, in the majority's view, the People were required to prove only that the actor had the purpose of assisting another person to enter, remain in, or travel through the United States or Colorado in violation of immigration laws, and not that the passengers allegedly being smuggled were actually present in the United States or Colorado in violation of those laws. Id. at ¶¶ 27, 39.

         ¶15 Judge Casebolt dissented. In his view, the division was required to address Fuentes-Espinoza's preemption argument, regardless of whether it was properly preserved, because the argument implicated the court's subject matter jurisdiction. Fuentes-Espinoza, ¶¶ 63-64 (Casebolt, J., dissenting). Alternatively, Judge Casebolt stated that he would review the unpreserved claim for plain error. Id. at ¶¶ 66-67.

          ¶16 Turning then to the merits of the preemption claim, Judge Casebolt noted that the INA provides "a comprehensive framework to penalize the transportation, concealment, and inducement of unlawfully present aliens." Id. at ¶ 76. In support of this position, he discussed a number of federal circuit court decisions in which the courts had concluded that the INA preempted the state smuggling laws before them under the doctrines of field and conflict preemption. Id. at ¶¶ 76-80. Based on the analyses set forth in those cases, Judge Casebolt concluded that (1) "the INA covers every aspect of the Colorado statute"; (2) in enacting the INA, Congress articulated a "clear purpose of ousting state authority from the field of transporting aliens"; and (3) section 18-13-128 "stands as an obstacle to accomplishing Congress's objective of creating a comprehensive scheme governing the movement and harboring of aliens." Id. at ¶¶ 85-87. Accordingly, he determined that the INA preempted section 18-13-128 under the doctrines of both field and conflict preemption and thus would have reversed Fuentes-Espinoza's conviction. Id. at ¶¶ 82, 91.

         ¶17 Fuentes-Espinoza then sought, and we granted, certiorari.

         II. Analysis

         ¶18 We begin by addressing the question of issue preservation and the applicable standard of review. We then discuss the pertinent principles of preemption law, as well as the Supreme Court's decision in Arizona v. United States, 567 U.S. 387 (2012), and other apposite federal authority. Finally, we apply the principles set forth in the foregoing authority and conclude that, like the statutes at issue in those cases, section 18-13-128 is preempted by the INA.

          A. Issue Preservation and Standard of Review

         ¶19 We have long made clear that we will exercise our discretion to review unpreserved constitutional claims when we believe that doing so would best serve the goals of efficiency and judicial economy. See, e.g., Hinojos-Mendoza v. People, 169 P.3d 662, 667 (Colo. 2007); People v. Wiedemer, 852 P.2d 424, 433 n.9 (Colo. 1993). Because we believe that reviewing Fuentes-Espinoza's unpreserved preemption claim would serve those goals here, we exercise our discretion to do so. As a result, we need not consider whether Fuentes-Espinoza waived that claim.

         ¶20 The question of whether a federal statute preempts state law presents an issue of law that we review de novo. See, e.g., Russo v. Ballard Med. Prods., 550 F.3d 1004, 1010 (10th Cir. 2008); People in Interest of C.Z., 2015 COA 87, ¶ 10, 360 P.3d 228, 233.

         B. Preemption Principles and Pertinent Case Law

         ¶21 The Supremacy Clause of the United States Constitution provides that federal law "shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." U.S. Const. art. VI, cl. 2. As a result, it has long been settled that Congress has the power to preempt state law. Arizona, 567 U.S. at 399.

         ¶22 In determining whether federal statutes preempt state law, we are "guided by two cornerstones." Ga. Latino All. for Human Rights v. Governor of Ga., 691 F.3d 1250, 1263 (11th Cir. 2012) (quoting Wyeth v. Levine, 555 U.S. 555, 565 (2009)). First, Congress's purpose is the "ultimate touchstone in every pre-emption case." Id. (quoting Wyeth, 555 U.S. at 565). Second, we must presume that "the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress." Id. (quoting Wyeth, 555 U.S. at 565).

         ¶23 The United States Supreme Court has recognized three forms of federal preemption, namely, express, field, and conflict preemption. See Arizona, 567 U.S. at 399.

         ¶24 A state law is expressly preempted when Congress "withdraw[s] specified powers from the States by enacting a statute containing an ...


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