Petition for Writ of Certiorari — Colorado, Petitioner v. Bernardino Fuentes-Espinoza
Supreme Court briefJan 29, 2018
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APPENDIX
i
APPENDIX
Appendix A Opinion of the Supreme Court of the
State of Colorado
(October 10, 2017) .......................... 1a
Appendix B Opinion of the Colorado Court of
Appeals
(January 17, 2013) ........................ 38a
1a
APPENDIX A
The Supreme Court of the State of Colorado
2 East 14th Avenue • Denver, Colorado 80203
2017 CO 98
Supreme Court Case No. 13SC128
Certiorari to the Colorado Court of Appeals
Court of Appeals Case No. 08CA1231
Petitioner:
Bernardino Fuentes-Espinoza,
v.
Respondent:
The People of the State of Colorado.
Judgment Reversed
en banc
October 10, 2017
JUSTICE GABRIEL delivered the Opinion of the
Court.*
JUSTICE EID dissents, and JUSTICE COATS and
JUSTICE BOATRIGHT join in the dissent
2a
* This opinion was originally assigned to another
Justice but was reassigned to Justice Gabriel on
June 15, 2017.
¶1
In this case, petitioner Bernardino FuentesEspinoza 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 FuentesEspinoza’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.
1 Specifically, we granted certiorari to review the following
issues:
1. Whether the Immigration and Nationality Act preempts
Colorado’s human smuggling statute and the trial court
therefore was without jurisdiction.
2. Whether the court of appeals erred in holding that the
appellant waived the claim that the Colorado human
smuggling statute is preempted by the Federal Immigration
and Nationality Act.
3. Whether Colorado’s human smuggling statute requires
the prosecution to prove that the defendant was, in fact,
engaged in smuggling humans in violation of the immigration
law.
3a
¶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, FuentesEspinoza 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
4a
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 onehundred-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 FuentesEspinoza 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,
5a
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
6a
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. FuentesEspinoza, ¶¶ 2–3, 61.
¶13 Regarding the preemption issue, the majority
concluded that Fuentes-Espinoza’s arguments were
not properly before the court because FuentesEspinoza had not made those arguments before the
trial court. Id. at ¶¶ 10–16.
¶14 Regarding the question of what section 18-13128 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-
7a
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 1813-128 under the doctrines of both field and conflict
preemption and thus would have reversed FuentesEspinoza’s conviction. Id. at ¶¶ 82, 91.
¶17 Fuentes-Espinoza
granted, certiorari.
then
sought,
and
we
8a
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.
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
9a
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.
10a
¶24 A state law is expressly preempted when
Congress “withdraw[s] specified powers from the
States by enacting a statute containing an express
preemption provision.” Id.
¶25 Under the field preemption doctrine, in turn,
“the States are precluded from regulating conduct in
a field that Congress, acting within its proper
authority, has determined must be regulated by its
exclusive governance.” Id. Congress’s intent to
preempt a particular field may be inferred “from a
framework of regulation ‘so pervasive . . . that
Congress left no room for the States to supplement it’
or where there is a ‘federal interest . . . so dominant
that the federal system will be assumed to preclude
enforcement of state laws on the same subject.’” Id.
(quoting Rice v. Santa Fe Elevator Corp., 331 U.S.
218, 230 (1947)).
¶26 Finally, under the conflict preemption
doctrine, “state laws are preempted when they
conflict with federal law.” Id. Such a conflict exists
(1) when compliance with both federal and state law
is physically impossible and (2) in “those instances
where the challenged state law ‘stands as an obstacle
to the accomplishment and execution of the full
purposes and objectives of Congress.’” Id. (quoting
Hines v. Davidowitz, 312 U.S. 52, 67 (1941)).
¶27 In Arizona, 567 U.S. at 398–407, the Supreme
Court applied the foregoing principles in the context
of the federal government’s regulation of, among
11a
other things, alien registration.
instructive here.
That case is
¶28 In Arizona, the federal government challenged
(1) section 5(C) of an Arizona statute, which section
made it a misdemeanor for “an unauthorized alien to
knowingly apply for work, solicit work in a public
place or perform work as an employee or
independent contractor,” Id. at 403 (quoting Ariz.
Rev. Stat. Ann. § 13-2928(C) (2017)); and (2) section
3 of the same Arizona statute, which prohibited the
“willful failure to complete or carry an alien
registration document . . . in violation of [federal
law],” Id. at 400 (quoting Ariz. Rev. Stat. Ann. § 131509(A) (2017)). The Supreme Court concluded that
federal law preempted both sections. Id. at 403, 406–
07.
¶29 Regarding section 5(C), the Court began by
noting that the federal Immigration Reform and
Control Act of 1986 (“IRCA”), 8 U.S.C. § 1324a
(2017), (1) made it illegal for employers knowingly to
hire, recruit, refer, or continue to employ
unauthorized workers and (2) required employers to
verify the employment authorization status of
prospective employees. Arizona, 567 U.S. at 404.
The Court observed that IRCA enforced these
provisions through criminal or civil penalties on
employers but that it imposed no criminal sanctions
on employees unless they obtained employment
through fraudulent means.
Id. at 404–05.
Employees were principally subject only to civil
penalties. Id. at 404.
12a
¶30 In light of the foregoing, the Court concluded
that IRCA preempted section 5(C) because enforcing
section 5(C) “would interfere with the careful balance
struck by Congress with respect to unauthorized
employment of aliens.” Id. at 406. Notably, in
reaching this conclusion, the Court recognized that
section 5(C) “attempt[ed] to achieve one of the same
goals as federal law—the deterrence of unlawful
employment.” Id. The Court determined, however,
that section 5(C) “involve[d] a conflict in the method
of enforcement” because it imposed “criminal
penalties on aliens who seek or engage in
unauthorized employment,” whereas IRCA had
rejected such penalties. Id. Accordingly, section 5(C)
posed “an obstacle to the regulatory system Congress
chose” and, consequently, was preempted under the
doctrine of conflict preemption. Id. at 406–07.
¶31 The Court then discussed section 3 of the
Arizona statute, which, as noted above, prohibited
the “willful failure to complete or carry an alien
registration document . . . in violation of [federal
law].” Id. at 400. The Court held that this section,
too, was preempted, based on the fact that Congress
“ha[d] occupied the field of alien registration,” thus
leaving no room for state regulation. Id. at 401.
¶32 In so ruling, the Court rejected Arizona’s
argument that section 3 was not preempted because
“the provision ha[d] the same aim as federal law and
adopt[ed] its substantive standards.” Id. at 402. In
the Court’s view, “[p]ermitting the State to impose its
own penalties for the federal offenses here would
13a
conflict with the careful framework Congress
adopted.” Id. Moreover, the penalties imposed by
the state statute were inconsistent with those
provided by federal law. Id. at 402–03. For example,
under federal law, the failure to carry registration
papers was a misdemeanor that could be punished by
a fine, imprisonment, or a term of probation. Id. at
403 (citing 8 U.S.C. § 1304(e) (2017); 18 U.S.C. §
3561 (2017)). The Arizona statute, in contrast,
precluded probation as a possible sentence (and also
prohibited the possibility of a pardon). Id. (citing
Ariz. Rev. Stat. Ann. § 13-1509(D) (2017)). The
Court concluded that these conflicts “simply
underscore[d] the reason for field preemption.” Id.
¶33 Since the Supreme Court’s decision in Arizona,
a number of federal circuit courts have applied the
principles set forth therein to strike down state
human smuggling statutes on preemption grounds.
¶34 For example, in Georgia Latino Alliance,
691 F.3d at 1256–57, the plaintiffs challenged
several provisions of Georgia’s Illegal Immigration
and Enforcement Act of 2011.
That statute
criminalized (1) transporting or moving an “illegal
alien,” (2) concealing or harboring an “illegal alien,”
and (3) inducing an “illegal alien” to enter the state
of Georgia. Id. at 1263 (citing Ga. Code Ann. §§ 1611-200(b), 16-11-201(b), 16-11-202(b) (2017)). The
Eleventh Circuit concluded that the INA likely
preempted each of these provisions. Id. at 1267.
14a
¶35 The court began by noting that “[t]he INA
provides a comprehensive framework to penalize the
transportation, concealment, and inducement of
unlawfully present aliens.”
Id.
Within that
framework, 8 U.S.C. § 1324(a)(1)(A)(ii)–(iv) provides
that it is a federal crime for any person (1) to
transport or move an unlawfully present alien within
the United States; (2) to conceal, harbor, or shield an
unlawfully present alien from detection; or (3) to
encourage or induce an alien to come to, enter, or
reside in the United States. Ga. Latino All., 691 F.3d
at 1263. In addition, 8 U.S.C. § 1324(c) permits local
law enforcement officers to arrest those who violate
these provisions of federal law, but under 8 U.S.C. §
1329, federal courts have exclusive jurisdiction to
prosecute these crimes and to interpret the
boundaries of the federal statute. Ga. Latino All.,
691 F.3d at 1263–64. 8 U.S.C. § 1324(e) then
mandates a community outreach program to
“educate the public in the United States and abroad
about the penalties for bringing in and harboring
aliens in violation of this section.” Ga. Latino All.,
691 F.3d at 1264. And 8 U.S.C. § 1325 imposes civil
and criminal penalties for unlawful entry into the
United States, and 8 U.S.C. §§ 1323 and 1328
authorize criminal penalties for individuals who
bring aliens into the United States and who import
aliens for immoral purposes. Ga. Latino All., 691
F.3d at 1264.
¶36 Construing these provisions together, the
Eleventh Circuit concluded that (1) “the federal
government has clearly expressed more than a
15a
‘peripheral concern’ with the entry, movement, and
residence of aliens within the United States”; (2) “the
breadth of these laws illustrates an overwhelmingly
dominant federal interest in the field”; and (3)
“Congress has provided a ‘full set of standards’ to
govern the unlawful transport and movement of
aliens.” Id. (quoting DeCanas v. Bica, 424 U.S. 351,
360 (1976); Arizona, 567 U.S. at 401).
¶37 The court further concluded that the Georgia
statute presented an obstacle to the execution of the
federal statutory scheme. Id. at 1265. In support of
this conclusion, the court observed that the INA
confines the prosecution of federal immigration
crimes to federal courts and limits the power to
pursue those cases to the United States Attorney,
whereas the Georgia statute allowed for parallel
state enforcement that was “not conditioned on
respect for the federal concerns or the priorities that
Congress had explicitly granted executive agencies
the authority to establish.” Id. This conflict was
exacerbated by the fact that the state statute’s
enticement provision created a new crime that was
unparalleled in the federal scheme. Id. at 1266.
And, the court noted, the state statute’s provisions
concerning harboring and transporting unlawfully
present aliens constituted an attempted complement
to the INA that was “inconsistent with Congress’s
objective of creating a comprehensive scheme
governing the movement of aliens within the United
States.” Id.
16a
¶38 In light of the foregoing, the court determined
that the plaintiffs had met their burden of showing a
likelihood of success on their claim that Georgia’s
statute was preempted by federal law. Id. at 1267;
see also United States v. Alabama, 691 F.3d 1269,
1285–88 (11th Cir. 2012) (relying heavily on Georgia
Latino Alliance in concluding that the INA
preempted a similar Alabama human smuggling
provision).
¶39 In United States v. South Carolina, 720 F.3d
518, 530–32 (4th Cir. 2013), the Fourth Circuit
reached a similar result in a case involving a South
Carolina law making it a felony (1) to “transport,
move or attempt to transport” or to “conceal, harbor
or shelter” a person “with intent to further that
person’s unlawful entry into the United States” or (2)
to help that person avoid apprehension or detection.
The court reasoned that the pertinent sections were
preempted under field preemption principles
“because the vast array of federal laws and
regulations on this subject is ‘so pervasive . . . that
Congress left no room for the States to supplement
it.’” Id. at 531 (quoting Arizona, 567 U.S. at 399).
Additionally, the court concluded that the sections
were “conflict preempted” because “there is a federal
interest . . . so dominant that the federal system will
be assumed to preclude enforcement of state laws on
17a
the same subject.” Id. (quoting Arizona, 567 U.S. at
399). 2
¶40 And in Valle del Sol Inc. v. Whiting, 732 F.3d
1006, 1022–29 (9th Cir. 2013), the Ninth Circuit
determined that under both field and conflict
preemption principles, the INA preempted an
Arizona statute that attempted to criminalize
transporting, concealing, harboring, or attempting to
harbor an unauthorized alien if the offender knew or
recklessly disregarded the fact that the person was
in the country illegally. Regarding field preemption,
the court agreed with the cases discussed above that
the breadth of the federal laws governing the
movement and harboring of aliens reflects the
federal government’s overwhelmingly dominant
federal interest in that field. Id. at 1026. Regarding
conflict preemption, the court concluded that
Arizona’s statute (1) provided additional and
different state penalties for harboring unauthorized
aliens than did the INA and thus disrupted
Congress’s carefully calibrated scheme, (2) divested
federal authorities of the exclusive power to
prosecute crimes concerning the transportation or
harboring of unauthorized aliens, and (3)
criminalized conduct not covered by the federal
harboring provision. Id. at 1026–28. Accordingly,
the Arizona statute stood “as an obstacle to the
accomplishment and execution of the full purposes
We note that the court deemed this a conflict preemption
analysis, although Arizona included such an analysis under
the rubric of field preemption.
2
18a
and objectives of Congress” and therefore was
preempted under the conflict preemption doctrine.
Id. at 1026, 1029.
¶41 With the foregoing legal principles and
authorities in mind, we turn to the argument now
before us.
C. Application
¶42 Here, Fuentes-Espinoza contends that the INA
preempts section 18-13-128 under both field and
conflict preemption principles. We agree.
1. Field Preemption
¶43 With respect to field preemption, as noted
above, we may infer Congress’s intent to preempt a
particular field when it has created “a framework of
regulation ‘so pervasive . . . that Congress left no
room for the States to supplement it’ or where there
is a ‘federal interest . . . so dominant that the federal
system will be assumed to preclude enforcement of
state laws on the same subject.’” Arizona, 567 U.S.
at 399 (quoting Rice, 331 U.S. at 230). For several
reasons, we conclude that such a framework of
regulation and such a federal interest exist here.
¶44 First, we note, as did the Supreme Court in
Arizona, 567 U.S. at 394–95, that “[t]he Government
of the United States has broad, undoubted power
over the subject of immigration and the status of
aliens,” and “[f]ederal governance of immigration and
alien status is extensive and complex.”
19a
¶45 Second, we agree with the federal circuit court
cases discussed above that the INA established a
comprehensive framework for penalizing the
transportation, concealment, and inducement of
unlawfully present aliens. See Valle del Sol, 732
F.3d at 1026; South Carolina, 720 F.3d at 531; Ga.
Latino All., 691 F.3d at 1263.
¶46 For example, 8 U.S.C. § 1324, entitled,
“Bringing in and harboring certain aliens,” provides:
[Any person who] knowing or in reckless
disregard of the fact that an alien has
come to, entered, or remains in the
United States in violation of law,
transports, or moves or attempts to
transport or move such alien within the
United
States
by
means
of
transportation
or
otherwise,
in
furtherance of such violation of law
[shall be punished as provided in
subparagraph (B)].
8 U.S.C. § 1324(a)(1)(A)(ii).
¶47 This statute also (1) criminalizes the aiding or
abetting of the above-mentioned conduct, 8 U.S.C.
§ 1324(a)(1)(A)(v)(II); (2) creates an extensive
punishment scheme, see 8 U.S.C. § 1324(a)(1)(B)(i)–
(iv); (3) discusses evidentiary considerations for
determining whether a violation has occurred,
8 U.S.C. § 1324(b)(3); and (4) mandates the creation
of an outreach program to educate the public on the
20a
penalties for violations of the foregoing provisions,
8 U.S.C. § 1324(e).
¶48 In addition, the INA imposes civil and
criminal penalties on aliens themselves for unlawful
entry into the United States, see 8 U.S.C. § 1325, and
authorizes criminal penalties for individuals who
bring aliens into the United States, aid or assist the
entry of inadmissible aliens, or import aliens for
immoral purposes, see 8 U.S.C. §§ 1323, 1327, 1328.
¶49 Lastly, 8 U.S.C. § 1324(c) expressly permits
local law enforcement officers to arrest those who
violate that statute’s provisions, but 8 U.S.C. § 1329
expressly grants to United States district courts
jurisdiction of all causes brought by the United
States that arise under the pertinent subsection and
provides that “[i]t shall be the duty of the United
States attorney of the proper district to prosecute
every such suit when brought by the United States.”
¶50 In our view, when read together, these
provisions evince Congress’s intent to maintain a
uniform, federally regulated framework for
criminalizing and regulating the transportation,
concealment, and inducement of unlawfully present
aliens, and this framework is so pervasive that it has
left no room for the states to supplement it. See
Arizona, 567 U.S. at 399.
¶51 Accordingly, we conclude that the INA
preempts section 18-13-128 under the doctrine of
field preemption.
21a
2. Conflict Preemption
¶52 We further conclude that the INA preempts
section 18-13-128 under the doctrine of conflict
preemption.
¶53 As noted above, a state law is preempted
under conflict preemption principles when, as
pertinent here, the challenged state law stands as an
obstacle to the accomplishment and execution of
Congress’s purposes and objectives in enacting a
federal statute. See Arizona, 567 U.S. at 399. Here,
for several reasons, we conclude that section 18-13128 stands as an obstacle to the accomplishment and
execution of Congress’s purposes and objectives in
enacting the INA’s various provisions related to the
transportation, concealment, and inducement of
unlawfully present aliens.
¶54 First, section 18-13-128 conflicts with the
INA’s carefully delineated scheme for punishing
conduct related to the transportation of unlawfully
present aliens. For example, a violation of section
18-13-128 carries a minimum sentence of four years
and a maximum sentence of twelve years. See § 1813-128(2) (classifying a violation of the statute as a
class 3 felony); § 18-1.3-401(1)(a)(V)(A) (providing the
presumptive penalty range for class 3 felonies). In
contrast, many of the INA’s anti-smuggling
provisions do not mandate a minimum term of
imprisonment. See, e.g., 8 U.S.C. § 1324(a)(1)(B)(i)–
(iv) (providing for fines as one penalty option).
Indeed, a violation of the INA’s anti-smuggling
22a
provisions can result in both a lesser minimum
penalty (e.g., a fine) and a lesser maximum penalty
than section 18-13-128’s presumptive four- to twelveyear sentencing range.
See 8 U.S.C. §
1324(a)(1)(B)(i)–(ii), (a)(2)(A), (a)(2)(B).
¶55 Similarly, unlike section 18-13-128, the INA
allows offenders who act for the purpose of
commercial advantage or private financial gain to be
punished differently from those who do not.
Compare 8 U.S.C. § 1324(a)(1)(B)(i), with 8 U.S.C. §
1324(a)(1)(B)(ii); and compare 8 U.S.C. §
1324(a)(2)(A), with 8 U.S.C. § 1324 (a)(2)(B)(ii).
¶56 The INA also (1) distinguishes between
transportation within the United States and
transportation into the United States, see 8 U.S.C.
§§ 1324(a)(1)(B)(i)–(ii), 1324(a)(2)(A), and (2) lists
circumstances (e.g., knowledge of an alien’s intent to
commit certain offenses against the United States or
a state and the fact that the alien was not
immediately on arrival brought and presented to an
appropriate immigration officer) that may warrant
the imposition of greater or lesser penalties, see 8
U.S.C.
§ 1324(a)(2)(A),
§
1324(a)(2)(B)(i)–(iii).
Neither section 18-13-128 nor Colorado’s general
sentencing statutes specifically identify such
circumstances as grounds to impose greater or lesser
penalties in the context of alien smuggling.
¶57 These differing provisions for punishment
stand as an obstacle to the accomplishment and
execution of Congress’s full purposes and objectives
23a
not just because they are different, but because they
undermine Congress’s careful calibration of
punishments for the crimes proscribed. See Valle del
Sol, 732 F.3d at 1027 (explaining that the provision
of additional and different state penalties under
Arizona’s statute for harboring unauthorized aliens
disrupts the congressional calibration and creates a
conflict with Congress’s legislative plan).
¶58 Second, section 18-13-128 criminalizes a
different range of conduct than does the INA. Under
the INA, a person commits alien smuggling if,
“knowing or in reckless disregard of the fact that an
alien has come to, entered, or remains in the United
States in violation of law, [that person] transports, or
moves or attempts to transport or move such alien
within the United States.”
8 U.S.C. §
1324(a)(1)(A)(ii) (emphasis added). This language
affirmatively requires a defendant to know or
recklessly disregard a fact, namely, that the
smuggled person “has come to, entered, or remains in
the United States in violation of law.” Id. As a
result, under federal law, the prosecution must prove
that “the alien was present in violation of law.”
United States v. Franco-Lopez, 687 F.3d 1222, 1226
(10th Cir. 2012); see also United States v.
Hernandez, 913 F.2d 568, 569 (8th Cir. 1990) (per
curiam) (Among other things, “[t]he government was
required to prove . . . the alien was in the United
States in violation of the law.”); United States v.
Alvarado-Machado, 867 F.2d 209, 212 (5th Cir. 1989)
(“The aliens’ status is an element of the crime of
transporting illegal aliens.”).
24a
¶59 In contrast, as the People assert and the
division below determined, Fuentes-Espinoza, ¶¶ 25–
39, section 18-13-128 criminalizes certain behavior of
people who act with the purpose of assisting others to
enter, remain in, or travel through the United States
or Colorado in violation of immigration laws.
Specifically, as noted above, that statute provides, in
pertinent part:
A person commits smuggling of humans
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) (emphasis added).
¶60 Under the plain language of this statute, a
person who acts with the pertinent purpose could be
convicted even absent a finding that the alien whom
he or she was assisting was actually violating
immigration laws. As a result, although, as the
People argue, both the federal and state statutes
criminalize certain conduct by human smugglers,
section 18-13-128 adds a new set of prohibited
activities and thus “sweeps more broadly than its
federal counterpart.” See Valle del Sol, 732 F.3d at
1028–29. In doing so, the Colorado statute disrupts
Congress’s objective of creating a uniform scheme of
25a
punishment because some smuggling activities
involving unauthorized aliens are now punishable in
Colorado but not elsewhere. See Id.
¶61 For these reasons, we conclude that, like the
human smuggling statutes invalidated in a number
of recent federal circuit court opinions, section 18-13128 is preempted by the INA under principles of
conflict preemption.
¶62 We are not persuaded otherwise by the
People’s contention that any differences between
section 18-13-128 and the INA are minor and
permissible because section 18-13-128 still “mirrors
federal objectives and furthers a legitimate state
goal.” Plyler v. Doe, 457 U.S. 202, 225 (1982). As the
Supreme Court has observed, “The fact of a common
end hardly neutralizes conflicting means.” Crosby v.
Nat’l Foreign Trade Council, 530 U.S. 363, 379
(2000); see also Amalgamated Ass’n of St., Elec. Ry.
& Motor Coach Emps. of Am. v. Lockridge, 403 U.S.
274, 287 (1971) (“Conflict in technique can be fully as
disruptive to the system Congress erected as conflict
in overt policy.”). Indeed, in Arizona, 567 U.S. at
406, the Court explicitly recognized that although
the Arizona statute at issue “attempt[ed] to achieve
one of the same goals as federal law—the deterrence
of unlawful employment”—this was not enough to
save it from preemption because the state statute
still involved “a conflict in the method of
enforcement.”
¶63 The same is true here. Although section 18–
13–128 might “mirror” some of the goals and
26a
objectives articulated in the INA, it criminalizes
distinct conduct and provides for greater penalties
than does the INA. Accordingly, section 18-13-128
stands as an obstacle to (1) the calibration of
penalties articulated by Congress for punishing the
transportation, concealment, and inducement of
unlawfully present aliens and (2) the uniformity of
enforcement contemplated by the federal scheme.
¶64 We likewise are unpersuaded by the People’s
attempt to frame the purpose of the INA’s human
smuggling provisions as being primarily aimed at
protecting aliens from the dangers of human
smuggling and not at creating a uniform system to
penalize the transportation, concealment, and
inducement of unlawfully present aliens. Although,
as the People assert, 8 U.S.C. § 1324(1)(A)(ii)
criminalizes conduct by human smugglers, that
provision also reflects Congress’s concern with aliens’
unlawful conduct.
¶65 Specifically, as noted above, that section
provides that any person who
knowing or in reckless disregard of the
fact that an alien has come to, entered,
or remains in the United States in
violation of law, transports or moves or
attempts to transport or move such an
alien within the United States by means
of transportation or otherwise, in
furtherance of such violation of law
27a
[shall be punished as provided in
subparagraph (B) of that statute].
(Emphasis added.)
¶66 In our view, this language reveals a principal
concern with the alien’s unlawful conduct. Thus, the
statute punishes third-parties for acting “in
furtherance of” the alien’s unlawful acts. We see
nothing in this statutory language, however,
indicating a congressional intent to protect aliens
from human smuggling.
III. Conclusion
¶67 For these reasons, we conclude that the INA
preempts section 18-13-128 under the doctrines of
field and conflict preemption.
Accordingly, the
judgment of the court of appeals is reversed, and the
case is remanded with instructions that FuentesEspinoza’s convictions under section 18-13-128 be
vacated and for further proceedings consistent with
this opinion.
JUSTICE EID dissents, and JUSTICE COATS and
JUSTICE BOATRIGHT join in the dissent.
28a
JUSTICE EID, dissenting.
¶68 After today’s decision, the State of Colorado can
no longer protect the victims of human smuggling
operations by declaring human smuggling to be a
crime. The majority reasons that Colorado’s human
smuggling statute, § 18-13-128, C.R.S. (2017),
penalizes “the transportation, concealment, and
inducement of unlawfully present aliens,” and
therefore must be preempted by federal law. See
maj. op. ¶ 2. The majority, however, misses the point
of Colorado’s human smuggling statute, which is to
protect, not punish, the passengers of human
smuggling operations regardless of their immigration
status. In this way, the Colorado human smuggling
statute is critically different from the federal law on
the subject, which focuses on punishing the
defendant driver as an aider and abettor of the
passenger’s violation of federal immigration laws.
Because Colorado and federal law do not focus on the
same conduct, the Colorado human smuggling
statute does not stand as an obstacle to, and is
therefore
not
preempted
by,
federal
law.
Accordingly, I respectfully dissent from the
majority’s opinion holding otherwise.
¶69 The majority first concludes that section 1813-128 is preempted under principles of field
preemption by the Immigration and Nationality Act
(“INA”), 8 U.S.C. §§ 1101–1537 (2017). Maj. op. ¶¶ 1,
43. Citing Arizona v. United States, 567 U.S. 387
(2012), the majority notes that the federal
government “has broad, undoubted power over the
29a
subject of immigration and the status of aliens,” and
that its “governance of immigration and alien status
is extensive and complex.” Id. at ¶ 44 (quoting
Arizona, 567 U.S. at 394–95). The majority opinion
seems to suggest that Arizona could be read or the
proposition that the federal government has entirely
occupied the field of regulating immigration and
alien status, such that any law that might
incidentally impact aliens is preempted. See Id. at
¶¶ 43–45. But Arizona is not so broad.
¶70 The Supreme Court in Arizona carefully
limited its field preemption analysis to the particular
field of alien registration. See Arizona, 567 U.S. at
401–03. In addressing section 3 of the Arizona act at
issue, which criminalized the failure to carry an alien
registration document, the Court explained that
federal law “provide[s] a full set of standards
governing alien registration.” Id. at 401. Further, it
concluded that, “with respect to the subject of alien
registration, Congress intended to preclude States
from ‘complement[ing] the federal law,’” id. at 403
(emphasis added) (quoting Hines v. Davidowitz, 312
U.S. 52, 66–67 (1941)). The Court did not hold that
Congress has fully occupied all fields in any way
connected to aliens or immigration. Indeed, the
Supreme Court “has never held that every state
enactment which in any way deals with aliens is a
regulation of immigration and thus per se preempted.” DeCanas v. Bica, 424 U.S. 351, 355 (1976),
superseded by statute, Immigration Reform and
Control Act of 1986, 100 Stat. 3359, as recognized in
Chamber of Commerce v. Whiting, 563 U.S. 582,
30a
588–90 (2011). And while the Court did acknowledge
in Arizona that federal law has become more
comprehensive since DeCanas, see Arizona, 567 U.S.
at 404, again, it was careful to limit its field
preemption analysis to the specific field of alien
registration. Id. at 403. Because Colorado’s human
smuggling statute in no way involves alien
registration, Arizona simply offers no support for the
majority’s conclusion that the Colorado human
smuggling statute is field preempted.
¶71 With regard to other provisions of the Arizona
law at issue, the Court in Arizona took a far
narrower approach, considering whether each
provision at issue conflicted with federal law to such
a degree that it “stands as an obstacle” to federal
law. 557 U.S. at 405 (quoting Hines, 312 U.S. at 67).
Most relevant here, the Court applied such an
approach in addressing section 5(C) of the Arizona
law, which made it a state misdemeanor for “an
unauthorized alien to knowingly apply for work.” Id.
at 403. The Supreme Court emphasized that the
section stood as an obstacle to the regulatory system
Congress chose because it ran contrary to a
deliberate choice by Congress not to impose criminal
penalties on aliens seeking work. Id. at 404–06. The
Court observed that the legislative background of the
relevant federal law, the Immigration Reform and
Control Act of 1986, “underscores the fact that
Congress made a deliberate choice not to impose
criminal penalties on aliens who seek, or engage in,
unauthorized employment.” Id. at 405. The Court
accordingly concluded that, because Congress
31a
deliberately chose not to impose criminal penalties
on those seeking employment, “[i]t follows that a
state law to the contrary is an obstacle to the
regulatory system Congress chose.” Id. at 406.
¶72 The question here, then, is whether Congress
determined that Colorado should be prevented from
criminalizing the conduct that is the focus of the
human smuggling statute, such that the statute runs
contrary to a deliberate choice by Congress. The
majority opinion offers no reason to believe that
Congress possessed such intent when it passed the
INA, let alone made a “deliberate choice” in this
regard, such as was present in Arizona.
¶73 That is because the Colorado human
smuggling statute and federal law focus on different
conduct. The INA makes it a crime for anyone who,
“knowing[ly] or in reckless disregard of the fact that
an alien has come to, entered, or remains in the
United States in violation of law, transports, or
moves or attempts to transport or move such alien
within the United States by means of transportation
or otherwise, in furtherance of such violation of law.”
8 U.S.C. § 1324(a)(1)(A)(ii) (emphasis added).
Federal circuit courts have held that under the INA,
the prosecution must prove “the fact” that the
passenger was in the country in violation of law; the
defendant either knew or recklessly disregarded that
fact; and the defendant’s transportation furthered
the passenger’s violation of the law. See maj. op. ¶
58 (discussing the first two elements); see, e.g.,
United States v. Franco-Lopez, 687 F.3d 1222, 1226–
32a
28 (10th Cir. 2012) (listing cases); United States v.
Barajas-Chavez, 162 F.3d 1285, 1288–89 (10th Cir.
1999) (en banc) (listing cases). As such, the pertinent
provision of the INA is akin to an aiding and abetting
statute, with the defendant driver aiding and
abetting the passenger’s violation of the law.
¶74 By contrast, Colorado’s human smuggling act
does not require proof that the person transported
was traveling in the country in violation of the law.
See maj. op. ¶¶ 59–60. Under section 18-13-128, a
defendant commits the crime of human smuggling if
he provides transportation to a person for money,
with the “purpose” of transporting that person in
violation of the law, even if that person was not in
fact traveling in violation of law. See § 18-13-128(1);
maj. op. ¶¶ 59–60. Colorado’s statute thus focuses on
the conduct of the defendant driver, not on the
passenger’s status or conduct. In fact, the plain
language of the statute indicates the purpose of
Colorado’s human smuggling statute is the
protection, not punishment, of the passenger.
¶75 The majority implicitly recognizes this critical
difference between the Colorado human smuggling
statute and federal law, but entirely misses its
significance. The majority concludes, for example,
that under the plain language of the Colorado human
smuggling statute, “a person who acts with the
pertinent purpose could be prosecuted even absent a
finding that the alien whom he or she was assisting
was actually violating immigration laws.” Maj. op.
¶ 60.
In other words, the Colorado human
33a
smuggling statute focuses on protecting the victims
of human smuggling laws, rather than on the
violation of immigration laws.
Likewise, the
majority concludes that federal law “reflects
Congress’s concern with aliens’ unlawful conduct” in
“punish[ing] third-parties for acting ‘in furtherance
of’ the alien’s unlawful acts.’” Id. at ¶¶ 64–66. In
other words, the focus of the federal law is the
unlawful conduct of the passengers and the fact that
the defendant driver is helping them accomplish it.
Indeed, the majority flat-out declares that federal
law does not “indicat[e] a congressional intent to
protect aliens from human smuggling.” Id. at ¶ 66.
¶76 That is the whole point. Because the federal
and state laws take aim at different conduct, there
can be no conflict between them. Therefore, there is
no evidence that the Colorado human smuggling
statute stands as an obstacle to the accomplishment
of Congress’s purposes.
¶77 The majority largely relies upon several
federal circuit court cases that find various state
provisions to be conflict and field preempted. See
maj. op. ¶¶ 34–40. But the state provisions at issue
in those cases mirrored federal law in focusing on
immigration law. For example, unlike Colorado’s
statute, each of the state laws at issue in those cases
mirrored the INA’s requirement of a defendant’s
knowledge or reckless disregard of the passenger’s
unlawful status. The INA, as noted above, provides
that any person who “knowing[ly] or in reckless
disregard of the fact that an alien has come to,
34a
entered, or remains in the United States in violation
of law, transports, or moves or attempts to transport
or move such alien within the United States . . . in
furtherance of such violation of law” shall be
punished. 8 U.S.C. § 1324(a)(1)(A)(ii). The law at
issue in Georgia Latino Alliance for Human Rights v.
Governor
of
Georgia
similarly
criminalized
“knowingly and intentionally transport[ing] or
mov[ing] an illegal alien . . . for the purpose of
furthering the illegal presence of the alien in the
United States.” 691 F.3d 1250, 1256, 1263 (11th Cir.
2012) (quoting Ga. Code. Ann. § 16-11-200(b) (West
2017)). The South Carolina law considered by the
Fourth Circuit made it a state felony to, “knowingly
or in reckless disregard of the fact” that another
person is in the country in violation of law,
“transport, move, or attempt to transport that
person.” United States v. South Carolina, 720 F.3d
518, 523 n.2 (4th Cir. 2013) (quoting Act 69, 2011
S.C. Acts (S.B. 20)). And the laws at issue in Valle
del Sol, Inc. v. Whiting, 732 F.3d 1006, 1012–13 (9th
Cir. 2013), and United States v. Alabama, 691 F.3d
1269, 1277 (11th Cir. 2012), likewise required an
offender to know or recklessly disregard the fact that
a passenger was in the country unlawfully. Thus,
the laws considered in the federal cases, like the
INA, focused on violations of immigration law, and
therefore stood as an obstacle to federal law.
¶78 Indeed, unlike Colorado’s human smuggling
statute, the state laws at issue in those cases
represented broad attempts to regulate immigration.
For instance, each law also criminalized other
35a
actions resembling those penalized by the INA, see 8
U.S.C. § 1324(a)(1)(A), such as concealing, harboring,
or shielding an alien from detection or inducing an
alien to enter the state. See Ga. Latino Alliance, 691
F.3d at 1256; Alabama, 691 F.3d at 1277; South
Carolina, 720 F.3d at 523; Valle del Sol, 732 F.3d at
1012–13. The state laws were also titled similarly to
the relevant provision of the INA, 3 and they were
passed as parts of legislative bills with stated
immigration-related aims. The Arizona law, for
example, was part of a bill “comprised of a variety of
immigration-related provisions,” which had the
stated purpose of “mak[ing] attrition through
enforcement the public policy of all state and
government agencies in Arizona.” Valle del Sol, 732
F.3d at 1012. The Georgia law, as the majority
notes, see maj. op. ¶ 34, was included in “the Illegal
Immigration Reform and Enforcement Act of 2011,”
which was intended to “address the problem of illegal
3 The relevant provision of the INA is titled “Bringing in and
harboring certain aliens.” 8 U.S.C. § 1324. Arizona’s law was
titled, in pertinent part, “Unlawful transporting, moving,
concealing, harboring or shielding of unlawful aliens.” Ariz.
Rev. Stat. Ann. § 13-2929 (2014). Alabama’s was “Concealing,
harboring, shielding, etc., unauthorized aliens,” Ala. Code §
31-13-13 (2012); South Carolina’s was “Unlawful entry into
the United States; furthering illegal entry by or avoidance of
detection of undocumented alien; penalties; exceptions,” S.C.
Code Ann. § 16-9-460 (2012); and the transportation-related
portion of Georgia’s law was titled “Transporting or moving
illegal aliens; penalties,” Ga. Code Ann. § 16-11-200 (West
2011).
36a
immigration within the state,” 4 Ga. Latino Alliance,
691 F.3d at 1256. Under such circumstances, the
federal circuit courts found the state laws to
constitute impermissible “complements” to the INA.
See Id. at 1266.
¶79 Because the same circumstances are not
present here, the federal circuit cases are simply
inapposite. Unlike the state laws at issue in those
cases, Colorado’s human smuggling statute does not
mirror federal immigration law and then attempt to
supplement it. Instead, as noted above, Colorado’s
statute singularly focuses on protecting passengers
as the victims of human smuggling operations. As
such, it is not an impermissible supplement to
federal immigration law, but rather a permissible
attempt to address the dangers that human
smuggling poses to passengers.
¶80 As the majority points out, there are a number
of additional differences between the Colorado
human smuggling statute and the INA. Maj. op. ¶¶
55–56. For example, Colorado’s human smuggling
statute makes the exchange of “money or any other
thing of value” an element of the crime, § 18-13-128,
rather than just a consideration in sentencing as it is
4 Similarly, the South Carolina law was a component of an act
passed “in response to a perceived failure of the United States
to secure its southern border,” South Carolina, 720 F.3d at
522, and the Alabama law was included in a bill with the
stated purposes of discouraging illegal immigration within
the state and maximizing enforcement of federal immigration
laws, see Alabama, 691 F.3d at 1276.
37a
under the INA, see 8 U.S.C. § 1324(a)(1)(B)(i)–(ii).
But these differences simply underscore that the
purpose of Colorado’s human smuggling statute is to
protect passengers from the dangers of human
smuggling.
Whereas the majority finds it
problematic that Colorado’s statute criminalizes “a
different range of conduct than does the INA,” see
maj. op. ¶¶ 58–60, the difference in focus between
the two statutes instead supports the conclusion that
Congress, in enacting the INA, did not intend to
preclude states from enacting laws such as
Colorado’s human smuggling statute.
¶81 At bottom, the majority seems to conclude that
any deviation from federal law regarding “the
transportation of unlawfully present aliens” must be
preempted. See maj. op. ¶ 54. But as the Supreme
Court has pointed out, state powers are “often
exercised in concurrence with those of the National
Government.” United States v. Locke, 529 U.S. 89,
109 (2000). Indeed, a “high threshold must be met if
a state law is to be preempted for conflicting with the
purposes of a federal act.” Whiting, 563 U.S. at 607
(quoting Gade v. Nat’l Solid Wastes Mgmt. Ass’n,
505 U.S. 88, 110 (1992) (Kennedy, J., concurring in
part and concurring in the judgment)). Because this
“high threshold” is far from met in this case, I
respectfully dissent.
I am authorized to state that JUSTICE COATS and
JUSTICE BOATRIGHT join in this dissent.
38a
APPENDIX B
COLORADO COURT OF APPEALS
Court of Appeals No. 2008CA1231
Jefferson County District Court No. 07CR2072
Honorable M.J. Menendez, Judge
Honorable Charles T. Hoppin, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Bernardino Fuentes-Espinoza,
Defendant-Appellant.
JUDGMENT AFFIRMED
January 17, 2013
¶1.
Defendant, Bernardino Fuentes-Espinoza, was
charged with, and convicted of, transporting seven
passengers in violation of Colorado’s human
smuggling statute, section 18-13-128, C.R.S. 2012.
None of these alleged passengers was available to
testify at trial, and the prosecution did not establish
whether any of them was illegally present in the
United States.
¶2.
On appeal, defendant asks us to decide two
issues regarding Colorado’s human smuggling
statute. First, is the statute preempted by federal
immigration law? Second, does the statute require
the prosecution to prove, beyond a reasonable doubt,
that the person being smuggled was illegally present
39a
in the United States?
questions “no.”
We answer both of these
¶3.
We also disagree with defendant’s three other
contentions. As a result, we affirm.
I.
Analysis
A. The Trial Court’s Jurisdiction Was Not
Preempted by Federal Law
¶4.
Defendant argues that Colorado’s human
smuggling statute is preempted by federal law. He
concedes that he did not preserve this issue for
appellate review by presenting it to the trial court.
¶5.
Defendant contends, however, that federal
preemption of a criminal statute provides a
jurisdictional bar to prosecution that cannot be
waived. See State v. Perry, 697 N.E.2d 624, 627
(Ohio 1998)(stating in dicta that “preemption is a
jurisdictional bar to prosecution”).
¶6.
Our supreme court has not addressed whether
federal preemption is a jurisdictional — and
therefore a nonwaivable — defense. See Town of
Carbondale v. GSS Props., LLC, 169 P.3d 675, 683
(Colo. 2007)(addressing state preemption of local law,
but recognizing “that preemption involving federal
law may raise a separate set of issues”).
Nevertheless, GSS Properties identified a useful
framework that has been employed by courts
considering federal preemption.
40a
Courts considering the matter have held
that the waivability of a preemption
defense depends entirely on the nature
of the alleged preemption. If, as in most
cases, the alleged preemption would
simply alter the applicable substantive
law
governing
the
case,
then
preemption is waivable. . . .
Conversely, if preemption “affects the
choice of forum rather than the choice of
law,” then preemption is akin to a
jurisdictional challenge and therefore is
not waivable.
Thus, the United States Supreme Court
in
International
Longshoremen’s
Association held that preemption was
not waivable because the federal statute
in question preempted state law and
provided that federal courts were the
exclusive fora for litigating claims under
the statute.
GSS Properties, 169 P.3d at 682 (citations
omitted)(quoting Gorman v. Life Ins. Co. of N. Am.,
811 S.W.2d 542, 545-46 (Tex. 1991)).
¶7
International Longshoremen’s Ass’n v. Davis,
476 U.S. 380 (1986), addressed preemption of state
jurisdiction by the National Labor Relations Act
(NLRA), citing San Diego Building Trades Council v.
Garmon, 359 U.S. 236 (1959). The Court held that
41a
when a state proceeding or regulation is
claimed to be pre-empted by the NLRA
under Garmon, the issue is a choice-offorum rather than a choice-of-law
question. As such, it is a question
whether the State or the Board has
jurisdiction over the dispute. If there is
pre-emption under Garmon, then state
jurisdiction is extinguished.
Int’l Longshoremen’s Ass’n, 476 U.S. at 391. Having
concluded that the issue involved jurisdictional
preemption, the Court further held that “when a
claim of Garmon pre-emption is raised, it must be
considered and resolved by the state court,” state
procedural rules notwithstanding. Id. at 393.
¶8.
Significantly, the Court emphasized that not
all preemption claims are necessarily jurisdictional:
We note that this conclusion derives
from congressional intent as delineated
in our prior decisions.
Thus, our
decision today does not apply to preemption claims generally but only to
those pre-emption claims that go to the
State’s actual adjudicatory or regulatory
power as opposed to the State’s
substantive laws. The nature of any
specific pre-emption claim will depend
on congressional intent in enacting the
particular pre-empting statute.
Id. at 391 n.9.
42a
¶9.
This distinction leads us to conclude that the
GSS Properties framework can be applied to issues of
federal preemption. Therefore, we must determine
whether the preemption argument urged by
defendant is jurisdictional — affecting choice of
forum — or substantive — affecting choice of law. To
the extent that defendant’s argument involves
jurisdictional preemption, we must address it.
¶10 Conversely, we conclude that defendant’s
arguments regarding substantive preemption are not
properly before us. People v. Cagle, 751 P.2d 614,
619 (Colo. 1988), holds generally that “[it] is
axiomatic that this court will not consider
constitutional issues raised for the first time on
appeal.” Our supreme court cited Cagle for this
proposition as recently as two years ago. Martinez v.
People, 244 P.3d 135, 139 (Colo. 2010)(declining to
reach an argument based on the Colorado
Constitution because it was not raised below).
¶11 The supreme court has also stated that it will
not address the constitutionality of a statute if such
an attack “is not presented to the trial court and is
[instead] raised for the first time on appeal.” People
v. Lesney, 855 P.2d 1364, 1366 (Colo. 1993); accord
People v. Martinez, 634 P.2d 26, 32 (Colo. 1981).
However, the supreme court has also held that, in
certain circumstances, it will review unpreserved
constitutional challenges to statutes to “promote
efficiency and judicial economy.” Hinojos-Mendoza v.
People, 169 P.3d 662, 667-68 (Colo. 2007); see also
43a
People v. Wiedemer, 852 P.2d 424, 433 n.9 (Colo.
1993).
¶12 Divisions of this court are split on when to
review unpreserved constitutional errors.
For
example, as the majority in People v. Tillery, 231
P.3d 36, 47-48 (Colo. App. 2009), aff’d on other
grounds sub nom. People v. Simon, 266 P.3d 1099
(Colo. 2011), points out, some divisions have declined
to consider unpreserved double jeopardy claims,
while others have proceeded to do so by applying
plain error principles.
¶13 Some
divisions
review
unpreserved
constitutional attacks on statutes that they conclude
can be determined by referring to the existing record,
but they decline to review others that would require
a more fully developed record to resolve. People v.
Devorss, 277 P.3d 829, 834 (Colo. App. 2011); People
v. Greer, 262 P.3d 920, 929-30 (Colo. App. 2011).
¶14 Other divisions have simply declined to review
unpreserved constitutional attacks on statutes.
People v. Baker, 178 P.3d 1225, 1235 (Colo. App.
2007); People v. Shepherd, 43 P.3d 693, 701 (Colo.
App. 2001); People v. Boyd, 30 P.3d 819, 820 (Colo.
App. 2001).
¶15 At least two judges have written separately to
express their differing views about when and how
unpreserved attacks on the constitutionality of
statutes should be reviewed on appeal. Greer, 262
P.3d at 933-37 (J. Jones, J., specially concurring);
44a
Tillery, 231 P.3d at 55-56 (Bernard, J., specially
concurring).
¶16 We are persuaded by Lesney and Cagle, and so
we conclude that we will not consider the
unpreserved constitutional attack on the statute in
this case involving substantive preemption. See
Tillery,
231
P.3d
at
55
(Bernard,
J.,
concurring)(“plain error review in Colorado does not
encompass unpreserved constitutional attacks on
statutes”).
¶17 However, we recognize that the dissent in this
case relies on reasonable authority when it proceeds
to address the issue that we decline to consider.
Because different divisions of this court continue to
resolve this question differently, it is our respectful
hope that our supreme court will resolve this dispute
in the near future.
1. Jurisdictional Versus Substantive
Preemption in the Context of
Immigration Law
[W]hether Congress has preempted
state court jurisdiction is not to be
confused with whether it has preempted
state legislative action.
The former
involves only the question whether a
state court has the power to entertain a
particular cause; the latter involves the
further question whether a state may
enact substantive legislation governing
45a
the subject matter of the particular
cause.
In re Jose C., 198 P.3d
2009)(emphasis in original).
1087,
1095
(Cal.
a. Jurisdictional Preemption
¶18 Congress
has
granted
federal
courts
jurisdiction over criminal matters relating to
immigration. See 8 U.S.C. § 1329 (“The district
courts of the United States shall have jurisdiction of
all causes, civil and criminal, brought by the United
States that arise under the provisions of this
subchapter.”).
Although the statute grants
jurisdiction to federal courts, it does not expressly
exclude state court jurisdiction. The absence of
language ousting state courts of their presumptive
jurisdiction “is strong, and arguably sufficient,
evidence that Congress had no such intent.” Yellow
Freight System, Inc. v. Donnelly, 494 U.S. 820, 823
(1990); cf. Int’l Longshoremen’s Ass’n, 476 U.S. at 389
(by creating and vesting jurisdiction in the National
Labor Relations Board, Congress excluded not only
state courts but also federal courts from adjudicating
certain cases subject to the NLRA); accord DeCanas
v. Bica, 424 U.S. 351, 355 (1976)(“the Court has
never held that every state enactment which in any
way deals with aliens is a regulation of immigration
and thus per se pre-empted by [the exclusive federal]
constitutional power” to regulate immigration); see
also Arizona v. United States, 567 U.S. ___, ___, 132
S.Ct. 2492, 2500-01 (2012)(preemption occurs when
46a
(1) Congress expressly withdraws specified powers
from states; (2) Congress determines that it will
exclusively regulate a particular field; or (3) the laws
of a state conflict with federal law).
¶19 We
therefore
conclude
that
federal
immigration law does not inherently preempt state
court jurisdiction over all matters touching on issues
of immigration.
b. Substantive Preemption
¶20 The question of substantive preemption asks
“whether, though state court jurisdiction exists,
Congress has preempted states from substantively
regulating immigration matters, and in particular
alien smuggling.” In re Jose C., 198 P.3d at 1097. A
statute may be substantively preempted if (1) the
statute actually regulates immigration, DeCanas,
424 U.S. at 354-55; (2) the clear and manifest
purpose of Congress was to preclude state regulation
touching aliens in general, Id. at 356-58; or (3) the
state statute stands as an obstacle to the
accomplishment and execution of the full purposes
and objectives of the federal law. Id. at 363; see also
State v. Barragan-Sierra, 196 P.3d 879, 889-91 (Ariz.
Ct. App. 2008)(applying DeCanas and holding that
Arizona’s human smuggling statute is not preempted
by federal immigration law); State v. Flores, 188 P.3d
706, 710-11 (Ariz. Ct. App. 2008)(same); but see Eric
M. Larsson, Annotation, Preemption of State Statute,
Law, Ordinance, or Policy with Respect to Law
Enforcement or Criminal Prosecution as to Aliens,
47a
75 A.L.R. 6th 541 § 6 (2012)(discussing decisions
from different jurisdictions that hold state human
smuggling statutes to be preempted by federal
immigration laws).
2. Application
¶21 Here, to the extent that defendant contends
that the trial court’s authority to adjudicate the
charges against him was jurisdictionally preempted,
his argument fails.
¶22 In
substance,
defendant
argues
that
Colorado’s human smuggling statute is preempted
under the DeCanas test. Thus, his challenge is
properly characterized as a claim of substantive
preemption. As discussed above, however, defendant
did not preserve the issue of substantive preemption
for appellate review, and, therefore, we decline to
address it.
B. The Human Smuggling Statute Does Not
Require Proof That the Defendant’s
Passenger Violated Immigration Laws
¶23 Defendant raises several challenges to his
convictions that turn on the question whether
Colorado’s human smuggling statute requires the
prosecution to prove that the person to be
transported actually violated federal immigration
laws. We conclude that such proof is not required.
48a
1. Standard of Review
¶24 Statutory interpretation is a question of law
we review de novo. People v. Garcia, 113 P.3d 775,
780 (Colo. 2005). Our goal is to give effect to the
legislative intent. People v. Martinez, 70 P.3d 474,
477 (Colo. 2003). We begin with the statutory
language, reading words and phrases in context and
giving them their commonly accepted and understood
meanings. Id.; People v. Vecellio, 2012 COA 40, ¶ 14.
“If the statutory language is clear and unambiguous,
we do not engage in further statutory analysis and
apply the statute as written.” Vecellio, ¶ 14. “Only
when the language is ambiguous may we consider
extraneous sources, such as legislative history, to
arrive at the proper meaning.” Rickstrew v. People,
822 P.2d 505, 509 (Colo. 1991).
2. Analysis
¶25
Section 18-13-128(1), C.R.S. 2012, provides:
A person commits smuggling of humans
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.
(Emphasis added.)
49a
¶26 Interpreting similar language in Colorado’s
conspiracy statute, a division of this court held that a
person may be guilty of conspiracy even where his or
her accomplice merely feigns agreement.
See
Vecellio, 2012 COA 40, ¶ 18. Section 18-2-201(1),
C.R.S. 2012, provides that “[a] person commits
conspiracy to commit a crime if, with the intent to
promote or facilitate its commission, he agrees with
another person” to engage in criminal conduct.
(Emphasis added.)
The division held that the
statute’s focus on “the actions of a single actor
agreeing with another” showed the legislature’s
intent to criminalize such conduct regardless
whether the second party actually shared the
defendant’s criminal intent. Id. This “approach is
justified, in part, because a person plotting a crime
with a feigning accomplice has a guilty mind.” Id. at
¶ 23.
¶27 Other language in section 18-13-128(1) also
emphasizes the defendant’s state of mind. The
prosecution must prove that the defendant had “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.” § 18-13128(1) (emphasis added). The plain meaning of the
phrase “for the purpose of” “indicates an anticipated
result that is intended or desired.” Colo. Ethics
Watch v. City & Cnty. of Broomfield, 203 P.3d 623,
625 (Colo. App. 2009)(citing Webster’s Third New
International Dictionary 1946 (2008)). Thus, by
including the defendant’s purpose as an element of
the offense, the statute further evinces the
50a
legislature’s intent to criminalize the defendant’s
conduct based on his or her guilty mind, independent
of the actions or intent of another person.
¶28 We reject defendant’s contention that the
statute’s references to the person to whom an
accused provides or agrees to provide transportation
establish that the prosecution must prove an actual
violation of immigration laws by that person. We do
so for three reasons.
¶29 First, as discussed above, the statute’s focus is
on the actions of a single actor providing or agreeing
to provide transportation to another person.
¶30 Second, by including the actor’s purpose as an
element of the crime, the statute emphasizes the
actor’s intent, rather than the outcome of his or her
actions. To require proof that the accused’s intended
passenger actually violated immigration laws “would
improperly conflate the distinct concepts of purpose
and effect.” Colo. Ethics Watch, 203 P.3d at 625.
¶31 Third, we disagree with defendant’s assertion
that, when the human smuggling statute is read as a
whole, the nonelemental subsections demonstrate
that the passenger’s actual immigration status is
central to a determination of guilt.
¶32 Section 18-13-128 further provides, in relevant
part:
(3) A person commits a separate offense
for each person to whom he or she
51a
provides or agrees to provide
transportation
in
violation
of
subsection (1) of this section.
(4) Notwithstanding the provisions of
section
18-1-202
[the
general
criminal venue statute], smuggling
of humans offenses may be tried in
any county in the state where a
person who is illegally present in the
United States who is a subject of the
action is found.
¶33 Defendant argues that (1) the creation of a
separate offense for each of the accused’s passengers,
and (2) the reference to “a person who is illegally
present . . . who is a subject of the action” compel a
conclusion that the legislature intended to require
proof of the passenger’s illegal presence as an
element of the offense.
¶34 However, an analogous argument was
implicitly rejected by another division of this court
when it interpreted similar language in Colorado’s
child enticement statute.
¶35 In Vecellio, the defendant was convicted of
child enticement after he arranged to meet with a
mother and her thirteen-year-old daughter for sex.
2012 COA 40, ¶¶ 2-5. In reality, the “mother” was
an undercover police officer, and the “daughter” did
not exist. Id. The child enticement statute provides,
in relevant part:
52a
A person commits the crime of
enticement of a child if he or she invites
or persuades, or attempts to invite or
persuade a child under the age of fifteen
years to enter any vehicle, building,
room, or secluded place with the intent
to commit sexual assault or unlawful
sexual contact upon said child. It is not
necessary to a prosecution for attempt
under this subsection (1) that the child
have perceived the defendant’s act of
enticement.
§ 18-3-305(1), C.R.S. 2012 (emphasis added).
¶36 Despite references in the statute to “said
child” and “the child,” a division of this court held
that the evidence was sufficient to sustain the
defendant’s conviction, even though the “child” he
attempted to entice did not exist. Vecellio, 2012 COA
40, ¶¶ 46-48.
¶37 Here, the provision establishing that a
defendant may be charged with a separate offense for
each actual or intended passenger remains focused
on the actions of the accused. The venue provision of
the human smuggling statute refers to “a person who
is illegally present in the United States who is a
subject of the action.” However, this provision is
concerned with venue and does not add an element to
the offense of human smuggling. Accord § 18-1202(11), C.R.S. 2012 (venue is not an element of an
offense).
53a
¶38 Thus, neither provision changes the definition
of the offense by adding an element — the passenger
or intended passenger’s illegal presence — or by
shifting the focus from the defendant’s actions and
purpose.
¶39 We therefore conclude that section 18-13-128
does not require the prosecution to prove that the
defendant’s passenger or intended passenger was
illegally present in the United States or Colorado in
violation of immigration laws. Further, because this
meaning is evident in the plain language of the
statute, we may not consider the parties’ arguments
regarding legislative history. See Rickstrew, 822
P.2d at 509.
¶40 Based on these conclusions, we necessarily
reject defendant’s assertions that
• the trial court erred by not instructing the jury
that the prosecution must prove that
defendant’s
passengers
were
violating
immigration laws;
• the trial court erred by not instructing the
jury, in answer to its question, that the
prosecution must prove that the passengers
were illegal immigrants;
• the prosecutor committed misconduct by
telling the jury that the prosecution was not
required to prove that the passengers were
violating immigration laws;
54a
• the prosecutor committed misconduct by citing
legislative history in support of his arguments
to the trial court without disclosing that he
had testified at a House committee hearing on
the bill that became section 18-13-128; and
• the evidence was insufficient to support
defendant’s convictions because it did not
establish that his passengers had violated
immigration laws.
C. Sufficient Evidence Supported the
Convictions
¶41 Defendant contends that the evidence was
insufficient to support his convictions because it did
not establish that he transported any of the persons
named in the complaint. We disagree.
¶42 We review the sufficiency of evidence de novo.
People v. Rincon, 140 P.3d 976, 983 (Colo. App.
2005).
[C]hallenges to the sufficiency of the
evidence to support a criminal
conviction require a reviewing court to
determine whether the evidence, both
direct and circumstantial, when viewed
as a whole and in a light most favorable
to the prosecution, is substantial and
sufficient to support a conclusion by a
reasonable person that the defendant is
guilty of the crime beyond a reasonable
doubt.
55a
People v. Taylor, 723 P.2d 131, 134 (Colo. 1986).
¶43 When reviewing for sufficiency of the evidence,
a court must give the prosecution the benefit of every
reasonable inference that might be drawn from the
evidence. Kogan v. People, 756 P.2d 945, 950 (Colo.
1988), abrogated on other grounds by Erickson v.
People, 951 P.2d 919, 923 (Cob. 1998).
¶44 Here, defendant and the seven alleged
passengers were taken into custody outside a gas
station and convenience store. The arresting officer
testified that
• the female passenger and another alleged
passenger had been inside defendant’s van;
• a third alleged passenger stood next to
defendant while he fixed a taillight on the van;
• three more alleged passengers were using a
pay phone outside the convenience store;
• a seventh alleged passenger approached the
group while they were speaking with the
officer; and
• the seven alleged passengers told the officer
their names, and six of them provided
identification.
The arresting officer also testified about statements
that defendant made after the officer asked him who
the people in the van were. Defendant stated that
56a
• the “female” was his cousin and the rest were
his friends;
and
• they all were returning from Las Vegas.
The officer looked into the van and saw that
• there were no additional clothes;
• there was no luggage; and
• there was a water bottle containing a liquid
that looked like urine.
An FBI agent interviewed defendant after the arrest.
Defendant told the agent that
• he was driving the van because a man named
Eric Castel had approached him in Las Vegas,
Nevada, and offered him $500 to drive
members of Mr. Castel’s family from Phoenix,
Arizona, to Kansas City;
• defendant would be paid when he delivered
the people to their destination in Kansas City;
• Mr. Castel drove defendant to Phoenix, where
Mr. Castel asked him to wait in an
unfurnished apartment;
• Mr. Castel returned with the van, and it was
full of people;
57a
• Mr. Castel gave defendant $600 in travel
money, and a map with a designated route;
• Mr. Castel also gave him a cellular telephone
number, which defendant was to call if anyone
in the van tried to leave before its final
destination;
• defendant realized that he “wasn’t going to be
. . . transporting” Mr. Castel’s family
members, but, instead, he thought he would be
transporting “[i]llegal aliens”;
• he only knew one of the people in the van;
• the only statement he made to them when he
got in the van was “hello”;
• when the police officer approached the
convenience store, two people who had been in
the van ran away and were not apprehended;
• including the two people who fled, there had
been eleven people in the van; and
• defendant did not get paid because he did not
deliver the people to Kansas City.
¶45 In addition, the store clerk testified that
defendant entered the store with a group of seven or
eight people and that defendant either gave them
money or paid for their purchases directly.
¶46 Viewed in the light most favorable to the
prosecution, this evidence supports a reasonable
58a
inference that the seven persons named in the
complaint were traveling together in defendant’s
van. We therefore conclude that sufficient evidence
supported defendant’s convictions.
D. Confrontation Clause
¶47 Defendant contends that the trial court erred
by allowing the arresting officer to testify that, when
the seventh alleged passenger approached, the officer
“found out that he was a passenger.” We perceive no
reversible error.
¶48 Confrontation Clause violations are trial
errors. Raile v. People, 148 P.3d 126, 133 (Colo.
2006). Where, as here, a defendant raises a timely
confrontation objection, we review under the
constitutional harmless error standard, asking
whether the error was harmless beyond a reasonable
doubt. Id. The inquiry “is not whether, in a trial
that occurred without the error, a guilty verdict
would surely have been rendered, but whether the
guilty verdict actually rendered in this trial was
surely unattributable to the error.” Sullivan v.
Louisiana, 508 US 275, 279 (1993). “[A] reviewing
court must look at the trial as a whole and decide
whether there is a reasonable probability that the
defendant could have been prejudiced by the error.”
People v. Fry, 92 P.3d 970, 980 (Colo. 2004).
¶49 Assuming, without deciding, that it was error
to admit the officer’s statement, we conclude for
several reasons that any such error was harmless
beyond a reasonable doubt.
59a
¶50 First, even without the officer’s statement,
sufficient evidence supports defendant’s convictions
as to the seventh passenger because (1) defendant
was accompanied by a group of at least seven persons
in the convenience store; (2) defendant paid for
purchases made by the members of his group; and (3)
the seventh person named in the complaint
demonstrated his membership in the group by
approaching them while the other six members of the
group were speaking with the officer. See Blecha v.
People, 962 P.2d 931, 942 (Colo. 1998)(factors to
consider in harmless error analysis of confrontation
violation include the importance of the witness’s
testimony to the prosecution’s case and whether the
testimony was cumulative).
¶51 Second, the officer made the statement to
explain his motive for questioning the seventh
person with the rest of the group. The statement
was a brief reference in the context of lengthy
testimony that spanned two days of trial.
¶52 Third, no further mention was made of the
statement during the trial, and the prosecution did
not allude to it in closing argument.
¶53 Fourth, defense counsel conceded in opening
argument that defendant was transporting the
people in the van; defendant’s theory of defense was
that he did not know the people were illegal
immigrants.
60a
¶54 We therefore conclude that there is no
reasonable probability that defendant was prejudiced
by the admission of the officer’s statement.
E. The Prosecutor’s Use of the Word “Lie”
Does Not Warrant Reversal
¶55 Defendant contends that reversal is required
because the prosecutor committed misconduct in
closing argument by suggesting that defendant lied
to police. We disagree.
¶56 “In this jurisdiction it is improper for a lawyer
to use any form of the word ‘lie’ in characterizing for
a jury a witness’s testimony or his truthfulness.”
Crider v. People, 186 P.3d 39, 41 (Colo. 2008); see
also Domingo-Gomez v. People, 125 P.3d 1043, 1050
(Colo. 2005)(“The word ‘lie’ is such a strong
expression that it necessarily reflects the personal
opinion of the speaker. When spoken by the State’s
representative in the courtroom, the word ‘lie’ has
the dangerous potential of swaying the jury from [its]
duty to determine the accused’s guilt or innocence on
the evidence properly presented at trial.”).
¶57 We review a violation of this tenet for
harmless error. Crider, 186 P.3d at 43. Where
the impropriety [is] limited to the
prosecutor’s use of an inflammatory
term, as distinguished from drawing the
jury’s attention to the contradictory
physical evidence in more neutral
terms, the task of assessing the
61a
harmfulness of the error is similarly
limited. The error must therefore be
accounted harmless if there is no
reasonable probability, in light of the
physical evidence, that the differences
between arguing that the defendant’s
contradictory statements were lies and
arguing simply that they could not
reasonably be believed, contributed to
the jury’s verdict.
Id. at 44.
¶58 Here, the prosecutor referred in closing
argument to the fact that defendant had repeatedly
and quickly changed his answers to the arresting
officer’s questions, giving conflicting explanations for
his actions. The prosecutor characterized this as
“making up stories” and stated:
People need reasons to lie. He doesn’t
just compulsively make up stories here.
He needed a reason to lie. And that
reason was to protect himself.
¶59 Viewing the closing argument as a whole, we
are convinced that there is no reasonable probability
that the use of the word “lie” contributed to the jury’s
verdict in this case. As the trial court noted, the
prosecutor “said lie, not liar.” See Crider, 186 P.3d at
44 (“it was significant that the prosecutor did not
refer to the defendant as a ‘liar’”). Although the
prosecutor made several references to “stories,” he
did not use any form of the word “lie” again. Under
62a
these circumstances, the prosecutor’s suggestion that
defendant had a “reason to lie” was not so
inflammatory as to give rise to a reasonable
probability that “the differences between arguing
that the defendant’s contradictory statements were
lies and arguing simply that they could not
reasonably be believed . . . contributed to the jury’s
verdict.” Id.
¶60 We therefore conclude that no reversible error
occurred.
¶61
The judgment is affirmed.
JUDGE BOORAS concurs.
JUDGE CASEBOLT dissents.
JUDGE CASEBOLT dissenting.
¶62 I disagree with the majority’s decision not to
address defendant’s preemption contention raised for
the first time on appeal. In my view, the contention
implicates the subject matter jurisdiction of our state
courts and thus may be raised at any time. In any
event, we may review the newly raised contention for
plain error. Addressing that contention, I conclude
that the provisions of the federal Immigration and
Nationality Act preempt Colorado’s smuggling of
humans statute. Accordingly, I respectfully dissent.
63a
I. Reviewability of Defendant’s Contention
A. Subject Matter Jurisdiction
¶63 First, I perceive that whether a state statute is
preempted by federal law presents an issue of subject
matter jurisdiction. See Thomas v. F.D.I.C., 255 P.3d
1073, 1078 (Colo. 2011) (stating that state law must
yield to federal law when application of the two
conflict; federal law preempts state jurisdiction
where Congress so provides “by an explicit statutory
directive, by unmistakable implication from
legislative history, or by a clear incompatibility
between state-court jurisdiction and federal
interests” (quoting Gulf Offshore Co. v. Mobil Oil
Corp., 453 U.S. 473, 478 (1981))); In re Marriage of
Anderson, 252 P.3d 490, 494 (Colo. App. 2010)
(concluding that state courts lack subject matter
jurisdiction to divide parties’ Social Security benefits
in a dissolution of marriage property distribution);
Osband v. United Airlines, Inc., 981 P.2d 616, 619
(Colo. App. 1998) (stating that “[i]f federal law
preempts state law, the state trial court lacks subject
matter jurisdiction to hear a claim”); Thayer v.
McDonald, 781 P.2d 190, 190 (Colo. App. 1989)
(stating that failure to assert the doctrine of federal
preemption in the trial court does not preclude
consideration on appeal because the defense of lack
of subject matter jurisdiction may be asserted at any
time, including on appeal); cf. Town of Carbondale v.
GSS Props., LLC, 169 P.3d 675, 683 (Colo. 2007)
(finding that whether a state statute preempts a
local ordinance essentially turns on whether the
64a
issue presents a choice of law or choice of forum
question; however, whether a federal provision
preempts a state law may raise a separate set of
issues).
¶64 Hence, in my view, we must address
defendant’s contention. See Herr v. People, 198 P.3d
108, 111 (Colo. 2008) (stating that a challenge to a
court’s subject matter jurisdiction is not waivable
and may be raised for the first time on appeal); see
also Consolidated Theatres, Inc. v. Theatrical State
Emps. Union, 447 P.2d 325, 331 (Cal. 1968); Boca
Burger, Inc. v. Forum, 912 So. 2d 561, 568 (Fla. 2005)
(noting that federal preemption is a question of
subject matter jurisdiction); Joe Nagy Towing, Inc. v.
Lawless, ___ So. 3d ___, ___, 2012 WL 4839853, at *3
(Fla. Dist. Ct. App. No. 2D10-4972, Oct. 12, 2012)
(stating that even though the issue was not raised in
trial court, federal preemption is a question of
subject matter jurisdiction and therefore can be
raised at any time, even for the first time on appeal);
Packowski v. United Food & Commercial Workers,
796 N.W.2d 94, 98-99 (Mich. Ct. App. 2010); Werner
v. Plater-Zyberk, 799 A.2d 776, 787 (Pa. Super. Ct.
2002) (concluding that federal preemption is a
jurisdictional matter for a state court because it
challenges subject matter jurisdiction and the
competence of the court to reach the merits of the
claims raised); M & I Marshall & Isley Bank v.
Guaranty Fin., MHC, 800 N.W.2d 476, 483 (Wis. Ct.
App. 2011) (“Federal preemption of a matter deprives
a state court of subject matter jurisdiction.” (quoting
Dykema v. Volkswagenwerk AG, 525 N.W.2d 754, 756
65a
(Wis. Ct. App. 1994))); contra Int’l Longshoremen’s
Ass’n v. Davis, 470 So. 2d 1215, 1216 (Ala. 1985),
aff’d on other grounds, 476 U.S. 380 (1986); Local 447
v. Feaker Painting, Inc., 788 N.W.2d 398, 2010 WL
2757376, at *3 (Iowa Ct. App. 2010) (unpublished
table decision) (stating that federal preemption may
or may not implicate the subject matter jurisdiction
of the state court).
¶65 We review de novo whether a court has subject
matter jurisdiction. Thomas, 255 P.3d at 1077. We
also review issues of federal preemption de novo.
Timm v. Prudential Ins. Co., 259 P.3d 521, 525 (Colo.
App. 2011).
B. Plain Error Review
¶66 Even if, as the majority contends, federal
preemption does not implicate a court’s subject
matter jurisdiction, I would review for plain error.
When, as here, a defendant fails to raise the issue in
the trial court, we review for plain error. See People
v. Greer, 262 P.3d 920, 931-39 (Colo. App. 2011) (J.
Jones, J., specially concurring) (concluding that
certain unpreserved constitutional claims should be
reviewed on appeal for plain error); see also Lucero v.
People, 2012 CO 7, ¶¶ 23-26 (addressing merger
contention even though defendant failed to raise the
issue in the trial court); People v. Herron, 251 P.3d
1190, 1192 (Colo. App. 2010) (addressing alleged
double jeopardy error on plain error review).
¶67 “Plain” in this context is synonymous with
“clear” or “obvious.” Lehnert v. People, 244 P.3d 1180,
66a
1185 (Colo. 2010). Plain error is error that is so
clear-cut, so obvious, that a competent trial judge
should be able to avoid it without benefit of objection.
People v. O’Connell, 134 P.3d 460, 464 (Colo. App.
2005) (citing United States v. Olano, 507 U.S. 725,
734 (1993)). Plain error requires reversal if, after a
review of the entire record, a court can conclude with
fair assurance that the error so undermined the
fundamental fairness of the trial itself as to cast
serious doubt on the reliability of the judgment of
conviction. Lehnert, 244 P.3d at 1185.
II. Analysis
¶68 Upon review, whether for presence of subject
matter jurisdiction or for plain error, I conclude that
federal law preempts section 18-13-128, C.R.S. 2012,
under principles of field and conflict preemption.
Furthermore, to the extent that review would be for
plain error, I conclude that the error here is obvious
and affects the fundamental fairness of the
proceeding.
Accordingly, I would reverse the
judgment of conviction.
A. Law
¶69 Preemption may be either expressed or
implied and is compelled whether Congress’s
command is explicitly stated in the statute’s
language or implicitly contained in its structure and
purpose.
Gade v. National Solid Wastes
Management Ass’n, 505 U.S. 88, 98 (1992).
67a
¶70 There are generally three classes of
preemption: express, field, and conflict preemption.
Id. Absent express preemption language in the
statute,
field
preemption
occurs
when
a
Congressional legislative scheme is so pervasive as to
make reasonable the inference that Congress left no
room for the states to supplement it, id., and conflict
preemption occurs where compliance with both
federal and state regulations is a physical
impossibility or where state law stands as an
obstacle to the accomplishment and execution of the
full purposes and objectives of Congress. Id.; see
Colo. Mining Ass’n v. Bd. of Cnty. Comm’rs, 199 P.3d
718, 723 (Colo. 2009) (stating that federal law
preempts state law when Congress expresses clear
intent to preempt state law; when there is outright
or actual conflict between federal and state law;
when compliance with both federal and state law is
physically impossible; when there is an implicit
barrier within federal law to state regulation in a
particular area; when federal legislation is so
comprehensive as to occupy the entire field of
regulation; or when state law stands as an obstacle
to the accomplishment and execution of the full
objectives of Congress) (citing Dep’t of Health v. The
Mill, 887 P.2d 993, 1004 (Colo. 1994)).
¶71 To determine the boundaries that Congress
sought to occupy within the field, we look to the
federal statute itself, read in the light of its
constitutional setting and its legislative history.
DeCanas v. Bica, 424 U.S. 351, 360 n.8 (1976).
68a
¶72 In determining the extent to which federal
statutes preempt state law, courts are guided by two
cornerstones. Wyeth v. Levine, 555 U.S. 555, 565
(2009).
First, “the purpose of Congress is the
ultimate touchstone in every pre-emption case.” Id.
(quoting Medtronic, Inc. v. Lohr, 518 U.S. 470, 485
(1996)). Second, we 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
Medtronic, Inc., 518 U.S. at 485); see also Arizona v.
United States, ___ U.S. ___, ___, 132 S.Ct. 2492, 2501
(2012).
B. Application
¶73 “The Government of the United States has
broad, undoubted power over the subject of
immigration and the status of aliens. This authority
rests, in part, on the National Government’s
constitutional power to ‘establish an uniform Rule of
Naturalization’ and its inherent power as sovereign
to control and conduct relations with foreign
nations.” Arizona v. United States, ___ U.S. at ___,
132 S.Ct. at 2498 (citations omitted) (quoting U.S.
Const. art. I, § 8, cl. 4).
¶74 Furthermore,
“[f]ederal
governance
of
immigration and alien status is extensive and
complex.” Id. at ___, 132 S.Ct. at 2499. It includes
specifying admission and exclusion of aliens,
registration requirements, establishment of status,
regulation of public benefits available to aliens,
69a
removal, employment restrictions, and the granting
or denial of asylum, among other things. Id. Federal
agencies, including the Department of Homeland
Security, Customs and Border Protection, and
Immigration and Customs Enforcement are
responsible for determining admissibility of aliens,
securing the country’s borders, and enforcing
immigration related statutes. Id.
¶75 Arizona v. United States addressed the
constitutionality of an Arizona statute relating to
unlawful aliens, in particular, whether the Arizona
statute was preempted by federal law. In holding
that major parts of the statute were preempted, the
Court noted that the Supremacy Clause gives
Congress the power to preempt state law expressly,
but absent express preemption, states are also
precluded from regulating conduct in a field that
Congress has determined must be regulated by its
exclusive governance.
The intent to displace state law
altogether can be inferred from a
framework of regulation “so pervasive .
. . that Congress left no room for the
States to supplement it” or where there
is a “federal interest . . . so dominant
that the federal system will be assumed
to preclude enforcement of state laws on
the same subject.”
Id. at ___, 132 S.Ct. at 2501 (quoting Rice v. Santa Fe
Elevator Corp., 331 U.S. 218, 230 (1947)).
70a
¶76 The Immigration and Nationality Act, 8 U.S.C.
§§ 1101-1537 (INA), provides a comprehensive
framework
to
penalize
the
transportation,
concealment, and inducement of unlawfully present
aliens. Ga. Latino Alliance for Human Rights v.
Governor, 691 F.3d 1250, 1263-64 (11th Cir. 2012).
The Georgia Latino Alliance court described the
scope of the INA’s criminal provisions, in the course
of concluding that the INA “field preempted” a
Georgia law prohibiting transportation of aliens:
Pursuant to 8 U.S.C. § 1324(a)(1)(A)(ii)(iv), it is a federal crime for any person
to transport or move an unlawfully
present alien within the United States;
to conceal, harbor, or shield an
unlawfully present alien from detection;
or to encourage or induce an alien to
“come to, enter, or reside in the United
States.” Any person who conspires or
aids in the commission of any of those
criminal activities is also punishable.
Id. § 1324(a)(1)(A)(v). Section 1324(c)
permits local law enforcement officers to
arrest for these violations of federal law,
but the federal courts maintain
exclusive jurisdiction to prosecute for
these crimes and interpret the
boundaries of the federal statute. See
Id. § 1329. Subsection (d) of § 1324
further dictates evidentiary rules
governing prosecution of one of its
enumerated offenses, and subsection (e)
71a
goes so far as to mandate a community
outreach program to “educate the public
in the United States and abroad about
the penalties for bringing in and
harboring aliens in violation of this
section.”
Rather than authorizing
states to prosecute for these crimes,
Congress chose to allow state officials to
arrest for § 1324 crimes, subject to
federal prosecution in federal court. See
Id. §§ 1324(c), 1329. In the absence of a
savings
clause
permitting
state
regulation in the field, the inference
from these enactments is that the role of
the states is limited to arrest for
violations of federal law.
691 F.3d at 1263-64 (footnote omitted).
¶77 The Georgia Latino Alliance court further
noted that the comprehensive nature of the federal
provisions was exemplified by how section 1324 fits
within the larger context of federal statutes
criminalizing acts undertaken by aliens and those
who assist them in coming to or remaining within
the United States:
Regarding the aliens themselves,
§ 1325, for example, imposes civil and
criminal penalties for unlawful entry
into the United States. Congress has
similarly authorized criminal penalties
for individuals who bring aliens into the
72a
United States, id. § 1323, aid the entry
of an inadmissible alien, id. § 1327, and
import an alien for an immoral purpose,
id. § 1328. In enacting these provisions,
the federal government has clearly
expressed more than a “peripheral
concern” with the entry, movement, and
residence of aliens within the United
States, see De Canas, 424 U.S. at 36061 . . . , and the breadth of these laws
illustrates an overwhelmingly dominant
federal interest in the field.
691 F.3d at 1264.
¶78 The Georgia Latino Alliance court also
concluded that the Georgia statute presented an
obstacle to the execution of the federal statutory
scheme, and thus was “conflict preempted.” Id. at
1265. The court noted that the federal provisions
confined the prosecution of federal immigration
crimes to federal court and thus limited the power to
pursue those cases to the appropriate United States
Attorney, id., and that interpretation of the Georgia
criminal provision by state courts and enforcement
by state prosecutors unconstrained by federal law
threatened the uniform application of the INA. Id. at
1266.
In addition, the court concluded that the
provisions of the Georgia statute criminalizing acts
of harboring and transporting unlawfully present
aliens constituted an impermissible complement to
the INA that “is inconsistent with Congress’s
objective of creating a comprehensive scheme
73a
governing the movement of aliens within the United
States.” Id.
¶79 In United States v. Alabama, 691 F.3d 1269
(11th Cir. 2012), the Eleventh Circuit held that an
Alabama provision criminalizing the transportation
of unlawfully present aliens was preempted, based
upon a very similar analysis. Id. at 1285-88.
¶80 In United States v. South Carolina, 840 F.
Supp. 2d 898 (D.S.C. 2011), modified, ___ F. Supp. 2d
___ (D.S.C. 2012), the court held that a South
Carolina statute criminalizing the transportation of
aliens was preempted, employing an analysis similar
to that of the Eleventh Circuit. The court concluded:
“It is clear . . . that Congress adopted a scheme of
federal regulation regarding the harboring and
transporting of unlawfully present persons so
pervasive that it left no room in this area for the
state to supplement it. Thus, this is a classic case of
field preemption.” Id. at 916-17 (citation omitted).
¶81 Here,
provides:
section
18-13-128(1),
C.R.S.
A person commits smuggling of humans
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.
2012,
74a
¶82 Comparing the federal provisions to this
Colorado statute, I conclude, for a number of reasons,
that the latter is preempted by principles of field
preemption and conflict preemption.
¶83 First, the Colorado provision regulates the
same field that the federal statute does —
transportation of illegal aliens through the United
States. The INA makes it unlawful for any person to
“transport[] or move[] or attempt[] to transport[] or
move[]” an unlawfully present alien within the
United States, “knowing or in reckless disregard of
the fact that an alien has come to, entered, or
remain[ed] in the United States in violation of law.”
8 U.S.C. § 1324(a)(1)(A)(ii). The Colorado statute
essentially duplicates that provision by prohibiting
any person from providing transportation to an alien
in or through Colorado or the United States in
exchange for money or any other thing of value for
the purpose of assisting the alien in violating
immigration laws. Indeed, the title of section 18-13128 is “smuggling of humans,” and 8 U.S.C. §
1101(a)(43)(N) states that the transportation offense
described in 8 U.S.C. § 1324 “relat[es] to alien
smuggling.”
¶84 Furthermore,
the
Colorado
provision
specifically states that the perpetrator must provide
transportation in exchange for money or anything
else of value, and the federal provision essentially
enhances the sentence of a perpetrator who violates
8 U.S.C. § 1324 and smuggles for commercial
advantage or private financial gain.
8 U.S.C.
75a
§ 1324(a)(1)(B)(i). In addition, the penalties for the
crimes are similar. The Colorado provision provides
that a violation is a class 3 felony, which may be
punished by four to twelve years of imprisonment,
see § 18-1.3-401(1)(a)(V)(A), C.R.S. 2012, and the
federal provision provides for imprisonment for up to
ten years when the transportation was done for the
purpose of commercial advantage or private financial
gain. 8 U.S.C. § 1324(a)(1)(B)(i).
¶85 In short, it is clear that the INA covers every
aspect of the Colorado statute.
¶86 Second, by enacting the INA provisions,
Congress has articulated a clear purpose of ousting
state authority from the field of transporting aliens.
8 U.S.C. § 1324(c) permits local law enforcement
officers to arrest for violations of the federal law, but
the federal courts maintain exclusive jurisdiction to
prosecute for these crimes and to interpret the
boundaries of the federal statute. See Ga. Latino
Alliance, 691 F.3d at 1264. Moreover, 8 U.S.C.
§ 1324(d) prescribes evidentiary rules governing
prosecution of one of its enumerated offenses, and
8 U.S.C. § 1324(e) goes so far as to mandate a
community outreach program to “educate the public
in the United States and abroad about the penalties
for bringing in and harboring aliens in violation of
this
section.”
These
federal
provisions
“comprehensively address[] criminal penalties for
these actions undertaken within the borders of the
United States, and a state’s attempt to intrude into
this area is prohibited because Congress has adopted
76a
a calibrated framework within the INA to address
this issue.” Id.; cf. Pennsylvania v. Nelson, 350 U.S.
497, 499 (1956) (concluding that state sedition act,
which proscribed same conduct as the federal
sedition act, was preempted by federal law; state’s
purported supplementation of federal law did not
shield the state statute from federal preemption; and
furthermore, Congress did not sanction concurrent
legislation on the subject covered by the challenged
state law).
¶87 Third, interpretation and application
section 18-13-128 by Colorado state courts would
threaten the uniform application of the
INA. Each time a state enacts its own
parallel to the INA, the federal
government
loses
“control
over
enforcement” of the INA, thereby
“further detract[ing] from the integrated
scheme of regulation created by
Congress.” Wis. Dep’t of Indus., Labor
& Human Relations v. Gould, Inc., 475
U.S. 282, 288-89 . . . (1986) . . . . Given
the federal primacy in the field of
enforcing
prohibitions
on
the
transportation,
harboring,
and
inducement of unlawfully present
aliens, the prospect of fifty individual
attempts to regulate immigrationrelated
matters
cautions
against
permitting states to intrude into this
area of dominant federal concern.
of
77a
Ga. Latino Alliance, 691 F.3d at 1266. Therefore, the
Colorado statute stands as an obstacle to
accomplishing Congress’s objective of creating a
comprehensive scheme governing the movement and
harboring of aliens, and thus is preempted.
¶88 Despite the above analysis, the People
nevertheless contend that preemption does not occur
here because section 18-13-128 does not regulate who
may enter or remain in the United States. The truth
of that contention, however, does not foreclose
preemption. Instead, the contention relates to one
prong of the three-prong DeCanas test, namely,
whether the state statute actually regulates
immigration. See DeCanas, 424 U.S. at 354-63 (state
statutes related to immigration may be preempted
(1) when the state statute actually regulates
immigration; (2) if it was the clear purposes of
Congress to preclude even harmonious state
regulation touching on aliens in general; and (3) if
the state law stands as an obstacle to the
accomplishment and execution of the full purposes
and objective of Congress). Because the “actual
regulation” prong is only one alternative way for
preemption to occur, the People’s contention is not
persuasive.
¶89 For that same reason, the People’s reliance on
State v. Barragan-Sierra, 196 P.3d 879, 889 (Ariz. Ct.
App. 2008), is likewise unpersuasive. There, the
court determined that the Arizona human smuggling
statute was not preempted by federal law under the
first DeCanas prong because it did not regulate
78a
immigration.
As noted, however, that is not
determinative under the other two prongs of
DeCanas.
¶90 Moreover,
the
Barragan-Sierra
court’s
decision that the Arizona human smuggling statute
was not preempted because Congress had not made
clear and manifest its purpose to prevent the states
from adopting even harmonious regulations
prohibiting the smuggling of illegal aliens does not
withstand scrutiny in light of the substantial federal
cases decided since Barragan-Sierra was announced,
particularly Arizona v. United States. Likewise, I
have significant doubt about the vitality of the
Arizona court’s additional conclusion that the
Arizona statute was not preempted because it did not
stand as an obstacle to the accomplishment and
execution of the full purposes and objectives of
Congress in enacting the INA. See Eric M. Larsson,
Annotation, Preemption of State Statute, Law,
Ordinance, or Policy with Respect to Law
Enforcement or Criminal Prosecution as to Aliens, 75
A.L.R. 6th 541, §§ 5-6 (2012) (cataloguing decisions);
Ben Meade, Comment, Interstate Instability: Why
Colorado’s Alien Smuggling Statute is Preempted by
Federal Immigration Laws, 79 U. Colo. L. Rev. 237
(2008).
¶91 In sum, I conclude that section 18-13-128 is
preempted by federal law, given the sweep of not
only this statute, but also federal legislation and
regulation of the immigration field generally in the
area of transportation of illegal aliens. I further
79a
conclude that the Colorado statute stands as an
obstacle to the accomplishment and execution of the
full purposes and objectives of Congress in enacting
the INA.
Hence, I would reverse defendant’s
conviction, and therefore respectfully dissent.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.