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Media Alerts - United States v. Moreno-Tapia -- Fourth Circuit
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February 21, 2017
  United States v. Moreno-Tapia -- Fourth Circuit
Since-Vacated Convictions Cannot Undo Conviction or Sentencing Enhancement for Illegal Reentry

Areas of Law: Immigration Law, Criminal Law, Sentencing Guidelines

Issue Presented: Whether an undocumented person can collaterally attack an illegal reentry charge on the ground that his original deportation proceedings was predicated on since-vacated convictions. Whether the District Court wrongly considered since-vacated convictions when determining a defendant's sentencing range under the "crime of violence" provision in the Sentencing Guidelines.

Brief Summary: In a published opinion, the United States Court of Appeals for the Fourth Circuit affirmed the District Court's judgment denying the defendant's motion to vacate his prior removal order and to withdraw his guilty plea to the charge of illegal reentry. Moreover, the Fourth Circuit found no error in the District Court's reliance on the defendant's vacated state convictions in determining his sentencing range under the Sentencing Guidelines.

Extended Summary: This case arose from the illegal reentry of a Mexican native. As a child, defendant-appellant Juan Antonio Moreno-Tapia ("Moreno-Tapia") immigrated to the United States from Mexico with his family. Although his parents and five siblings became legal permanent residents, Moreno-Tapia was unable to obtain legal permanent residency.

In 2006, Moreno-Tapia pled guilty to three charges of indecent liberties with a child, arising from a consensual relationship with a fifteen-year-old girl when he was twenty-one years old. The state court sentenced Moreno-Tapia to a sentence of fifteen to eighteen months' imprisonment and ordered him to register as a sex offender upon release. Neither the state court nor his attorney informed Moreno-Tapia of the immigration consequences associated with his guilty plea. Thereafter, the Department of Homeland Security ("DHS") initiated expedited removal proceedings against Moreno-Tapia. He was deported in 2009.

At some point prior to 2011, Moreno-Tapia reentered the United States without permission and was subsequently arrested. In 2014, Moreno-Tapia was charged with illegal reentry by a removed alien and with failure to register as a sex offender. Moreno-Tapia pled guilty to illegal reentry, and the District Court dismissed the charge for failure to register.

In 2015, Moreno-Tapia moved to vacate his 2006 convictions in state court. Specifically, Moreno-Tapia argued that his lawyer's failure to disclose his plea's immigration consequences rendered his 2006 convictions unconstitutional under the Supreme Court's decision in Padilla v. Kentucky, 559 U.S. 356 (2010). The state court agreed and vacated Moreno-Tapia's 2006 convictions. Moreno-Tapia then returned to the District Court, moving to (1) vacate his 2009 removal order and withdraw his 2014 guilty plea for illegal reentry and (2) dismiss both counts of his 2014 indictment. The District Court denied both motions. On appeal, Moreno-Tapia challenged his federal charges and the enhancement of his sentence due to his since-vacated convictions.

To establish illegal reentry, the government must prove the defendant's prior removal, which generally requires a DHS removal order. The defendant, however, may bring a collateral attack against a removal order by demonstrating the following: (1) the defendant exhausted available administrative remedies; (2) the deportation proceedings improperly deprived the defendant of the opportunity for judicial review; and (3) the order's entry was fundamentally unfair. Moreno-Tapia argued that his immigration proceedings were fundamentally unfair, because they were grounded on unconstitutional, since-vacated convictions.

The Fourth Circuit affirmed the District Court's judgment. The Fourth Circuit declined to decide whether due process permits a collateral attack against an immigration order based on the constitutionality of an underlying conviction. Instead, the Fourth Circuit concluded that Moreno-Tapia's state convictions were in fact constitutional despite being vacated. Because the Supreme Court's 2010 decision in Padilla does not apply retroactively, the failure to warn Moreno-Tapia of his plea's immigration consequences did not render his 2006 convictions unconstitutional.

Turning to his sentence, Moreno-Tapia argued that the District Court improperly considered his since-vacated convictions when calculating his Sentencing Guidelines range. Rejecting this argument, the Fourth Circuit asserted that the relevant time for determining whether a prior conviction triggers enhancement under the "crime of violence" provision is the date of deportation, rather than the date of the subsequent illegal reentry charge or sentencing hearing. The Fourth Circuit articulated two reasons for its conclusion. First, the enhancement provision is written in the past tense, applying only if a defendant "previously was deported . . . after[] a conviction." Second, the enhancement provision did not expressly exclude since-vacated convictions from consideration. The Fourth Circuit further declined to find an exception for unconstitutional convictions, emphasizing again that Moreno-Tapia's state convictions were in fact constitutional.

To read the full opinion, click here.

Panel: Judges Harris, Traxler, and Diaz

Argument Date: 10/28/2016

Date of Issued Opinion: 01/26/2017

Docket Numbers: No. 15-4610

Decided: Affirmed by published opinion

Case Alert Author: Linda Morris, Univ. of Maryland Carey School of Law

John Arthur Duberstein, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Greensboro, North Carolina, for Appellant. Anand P. Ramaswamy, OFFICE OF THE UNITED STATES ATTORNEY, Greensboro, North Carolina, for Appellee. ON BRIEF: Louis C. Allen, Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Greensboro, North Carolina, for Appellant. Ripley Rand, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Greensboro, North Carolina, for Appellee.

Author of Opinion: Judge Harris

Case Alert Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 02/21/2017 04:39 PM     4th Circuit  

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