730 Fed.Appx. 39 (2nd Cir. 2018), 16-3739-cv, Rodriguez v. United States

Docket Nº:16-3739-cv
Citation:730 Fed.Appx. 39
Party Name:Cleopatra RODRIGUEZ, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
Attorney:FOR PETITIONER-APPELLANT: MALVINA NATHANSON, New York, New York. FOR RESPONDENT-APPELLEE: ANDREW D. BEATY, Assistant United States Attorney (Anna M. Skotko, Assistant United States Attorney, on the brief), for Geoffrey S. Berman, United States Attorney for the Southern District of New York, New Y...
Judge Panel:PRESENT: JOHN M. WALKER, JR., GERARD E. LYNCH, DENNY CHIN, Circuit Judges.
Case Date:April 16, 2018
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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730 Fed.Appx. 39 (2nd Cir. 2018)

Cleopatra RODRIGUEZ, Petitioner-Appellant,

v.

UNITED STATES of America, Respondent-Appellee.

No. 16-3739-cv

United States Court of Appeals, Second Circuit

April 16, 2018

Editorial Note:

This case was not selected for publication in the Federal Reporter and Not to be Cited as Precedent. (See Federal Rule of Appellate Procedure Rule 32.1)

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT'S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

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Appeal from the United States District Court for the Southern District of New York (Preska, J. ).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the order of the district court is VACATED and the case is REMANDED for further proceedings.

FOR PETITIONER-APPELLANT: MALVINA NATHANSON, New York, New York.

FOR RESPONDENT-APPELLEE: ANDREW D. BEATY, Assistant United States Attorney (Anna M. Skotko, Assistant United States Attorney, on the brief), for Geoffrey S. Berman, United States Attorney for the Southern District of New York, New York, New York.

PRESENT: JOHN M. WALKER, JR., GERARD E. LYNCH, DENNY CHIN, Circuit Judges.

SUMMARY ORDER

Petitioner-appellant Cleopatra Rodriguez appeals from a memorandum and order entered October 17, 2016, denying her petition for a writ of error coram nobis seeking to vacate her guilty plea and conviction. We assume the parties’ familiarity with the underlying facts, procedural history, and issues on appeal.

Rodriguez legally entered the United States in 1994 from the Dominican Republic. In March 2007, she applied for citizenship, and in October 2007, she became a naturalized citizen of the United States. As part of her citizenship application, Rodriguez stated, under penalty of perjury, that she had not committed a crime or offense for which she had not been arrested.

In June 2009, however, Rodriguez was indicted, along with ten others, for crimes arising out of an income tax scheme alleged to have occurred between 2006 and 2008. As part of the scheme, different individuals filed for federal and state tax refunds to which they were not entitled and rented apartments under false names to which the refunds would be sent. Rodriguez’s alleged role was to cash checks on three separate occasions and to rent an apartment under a false name, for which she received "a little under a thousand dollars" in total. App. 90.

On January 25, 2010, Rodriquez pleaded guilty to three counts of the indictment: conspiracy to defraud the United States in violation of 18 U.S.C. § 286, conspiracy to commit mail and wire fraud in violation of 18 U.S.C. § 1349, and conspiracy to commit identification document fraud in violation of 18 U.S.C. § 1028(a)(7) & (f).

At the plea proceeding, the magistrate judge (Ellis, M.J. ) inquired about Rodriguez’s citizenship. Speaking through an interpreter, Rodriguez stated that she was a citizen of the United States but her counsel immediately— but incorrectly— told the court that "she is not a citizen of the United States." App. 59. The magistrate judge then warned Rodriguez of the deportation consequences associated with her guilty plea, and asked, "do you understand that by pleading guilty to these charges and because you’re not a citizen of the United States ... you are subject to being deported and that in all likelihood you will be deported? Do you understand that?" Id. Rodriguez responded, "Yes, sir." Id.

Rodriguez then read a statement, prepared by her lawyer and translated into

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Spanish, admitting that "[b]etween 2006 and 2008 [she] agreed to help others to defraud" the Government and "[i]n 2007, three different times [she] went to check cashing places ... [and] cashed tax refund checks that were not payable to [her]," for which she "was paid $200" each time. App. 68-69. Additionally, Rodriguez admitted that "[i]n early 2007, [she] signed a lease in [her] name for an apartment for one of the persons involved in this scheme ... [and] knew that the person was going to use it as one of the locations where tax refund checks generated as a result of the [scheme] were going to be sent." App. 69.1 The magistrate judge recommended that the district court accept Rodriguez’s guilty plea, and the district court (Baer, J. ) subsequently did so.

On June 10, 2010, Rodriguez appeared before the district court for sentencing. At sentencing, defense counsel stated, contrary to his earlier representations, that Rodriguez is "a United States citizen, has filed tax returns every year, has paid her taxes, and is in a position of fully documented income here." App. 80. Counsel then requested a below-guidelines sentence, emphasizing Rodriguez’s desire to continue working to support her family because she is the "sole basis of financial support for her two infant children ... as well as both of her parents," and her "family would suffer from severe collateral consequences due to [her] imprisonment." App. 75, 77.

In sentencing Rodriguez, the district court acknowledged that her "culpability ... was significantly less than most of [the] other defendants," and that it was "taking into consideration [Rodriguez’s] clean record, the family problems, ... the relatively small role that she played [in the scheme], and [ ] her acknowledgment in advance of her arrest as to her guilt." App. 88, 91. Rodriguez was then sentenced to 90 days’ imprisonment, significantly below the guidelines range of 21 to 27 months, to be followed by two years’ supervised release.

In April 2014, after Rodriguez had completed her sentence and term of supervised release, the Government filed denaturalization proceedings against her in the Eastern District of New York. The denaturalization complaint alleged that Rodriguez was ineligible for naturalization when she applied for citizenship in March 2007, in part because she had committed an unlawful act within the period prior to her application, which adversely reflected on her character. The complaint also alleged that Rodriguez illegally procured her citizenship by willfully mispresenting by omission in her application her prior and ongoing criminal activities.

On September 25, 2014, Rodriguez filed a petition for a writ of error coram nobis seeking not only vacatur of the judgment of conviction, but also vacatur of her plea. Rodriguez claimed, as she does on appeal, that prior to the plea allocution, her counsel "assured [her] several times that [she] did not have to worry about the immigration consequences of a plea because [she] was a citizen," and that she "relied on his assurances" in pleading guilty. App. 26. She also argued that a "competent attorney could have negotiated a plea that would not have required her to admit to facts that would support denaturalization," Appellant’s Br. 11-12, and that, for example, had she been properly advised, she would have asked her attorney to seek a plea agreement that would not require her to admit to criminal conduct before October 2007. App. 29. Rodriguez also asserted

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that had she known of possible immigration consequences, she "would have ... instructed [counsel] ... to move to vacate the plea immediately." App. 30. Rodriguez requested a hearing.

On October 17, 2016, the district court denied the petition, without a hearing, and held that Rodriguez failed to establish (1) circumstances compelling coram nobis relief because she had not demonstrated that she was prejudiced by her counsel’s objectively unreasonable advice because "[t]here is no reason to believe [that] the Government or the Court would have entertained a plea agreement that contradicted the allegations of [the] indictment," App. 165, and (2) that an order vacating her conviction would affect her denaturalization proceedings because Rodriguez’s plea allocution would remain an undisputed matter of record, and Rodriguez did not deny the accuracy of the allocution in her coram nobis petition. This appeal followed.

DISCUSSION

This Court "review[s] the judges ultimate decision to deny the...

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