to the Colorado Court of Appeals Court of Appeals Case No.
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
¶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"). 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.
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
Accordingly, we reverse the division's judgment and
remand this case for further proceedings consistent with this
Facts and Procedural History
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.
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.
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.
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 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.
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.
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).
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.
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.
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.
Fuentes-Espinoza then sought, and we granted, certiorari.
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
A. Issue Preservation and Standard of Review
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.
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.
Preemption Principles and Pertinent Case Law
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.
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).
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.
A state law is expressly preempted when Congress
"withdraw[s] specified powers from the States by
enacting a statute containing an ...