Juarico-Cervantes v. United States
| Decision Date | 23 May 2023 |
| Docket Number | 22-1497 |
| Parties | SHAID URIEL JUARICO-CERVANTES, Petitioner-Appellant, v. UNITED STATES OF AMERICA, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Petitioner Shaid Juarico-Cervantes, appeals the district court's denial of his motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. Juarico-Cervantes pleaded guilty to possession of firearms and ammunition by a person "illegally or unlawfully in the United States" in violation of 18 U.S.C. §§ 924(a)(2) and 922(g)(5)(A). For the reasons set forth below, this Court VACATES the district court's order denying Petitioner's § 2255 motion and REMANDS for an evidentiary hearing consistent with this opinion.
Shaid Juarico-Cervantes is a Deferred Action for Childhood Arrivals ("DACA") recipient. In 2005, at the age of seven, his parents brought him to live in the United States from Mexico. He has resided in Michigan since that time. On January 4, 2018, after his home was shot at in a drive-by shooting, Juarico-Cervantes went to On Target, a firearms dealer in Kalamazoo, Michigan, to buy a Zastava assault rifle. As part of the purchase process, Juarico-Cervantes was required to complete background check paperwork. He filled out the background check form, providing his name, address, and social security number. Because he wrote his social security number in the section of the form designated for his alien registration number, the background check was delayed. Even though the background check was delayed, Juarico-Cervantes was allowed to purchase and take possession of the firearm, less than a week later, on January 10, 2018.
Two days later, On Target received the results of the background check indicating that Juarico-Cervantes was prohibited from purchasing a firearm. On Target notified the Bureau of Alcohol, Tobacco, Firearms, and Explosives that Juarico-Cervantes already possessed the gun. Law enforcement agents visited Juarico-Cervantes' residence the next month to retrieve the gun he had purchased from On Target. Juarico-Cervantes was cooperative and permitted the agents to enter the home and retrieve the firearm. When the agents found the firearm, they also noticed other guns in plain view. The agents secured a search warrant for the residence and located five other guns, two of which were reported stolen and one which had an obliterated serial number.
In May 2018, Juarico-Cervantes was charged with one count of knowingly making a false written statement to procure a firearm in violation of 18 U.S.C. § 922(a)(6), one count of possessing firearms and ammunition in violation of 18 U.S.C. § 922(g)(5)(A) and § 924(a)(2), and one count of knowingly possessing a firearm with an obliterated serial number in violation of 18 U.S.C. § 922(k). Juarico-Cervantes initially pleaded not guilty to all three counts, but he later pleaded guilty to count two of the indictment, in exchange for dismissal of counts one and three. Juarico-Cervantes did not waive his right to appeal as part of his plea agreement. Although Juarico-Cervantes' plea agreement stipulated that he knew that he possessed the firearms listed in the indictment, it contained no stipulation that he was aware of his status as a person illegally or unlawfully in the United States when he possessed the firearms. During the change of plea hearing, the district court questioned Juarico-Cervantes about the offense in the indictment, and he admitted that he had entered the United States illegally in 2005, that he had possessed all of the items listed in count two of the indictment, and that he knew he was not permitted to possess all of the items listed in the indictment.
During the sentencing hearing, Juarico-Cervantes' attorney, Becket Jones, provided additional context about the facts precipitating count two of the indictment. Jones told the court that Juarico-Cervantes had not provided any false information in the background check paperwork and that the ATF found it "very easy" to find Juarico-Cervantes and locate the firearm he had purchased. Tr. Sentencing Hr'g, R. 50, Page ID #255-57. Jones also noted that Juarico-Cervantes purchased the gun from a licensed dealer and "believed that he had Second Amendment rights" even though he "should not have believed that." Id. at Page ID #257. The court sentenced Juarico-Cervantes to a term of 63 months of imprisonment and three years of supervised release. In making that determination, the district court specifically acknowledged that Juarico-Cervantes might not have been aware that DACA recipients were not allowed to possess guns. The district court stated:
His purchase of the firearm obviously was illegal. He was on DACA status while he was doing this. Apparently he didn't check with his lawyer. He should have checked with his lawyer to find out whether he was eligible to possess a firearm or not. He wasn't. And accordingly, his purchase, albeit in his own name, indicates that he was being rather open about it. He says he did that as a result of a drive-by shooting at his house. I have no reason to disbelieve that.
Id. at Page ID # 263-64.
The court entered judgment on November 2, 2018. Juarico-Cervantes did not appeal his sentence, and the time for him to file an appeal expired 14 days later. See Fed. R. App. P. 4(b)(1). On June 21, 2019, the Supreme Court decided Rehaif v. United States, holding that 18 U.S.C. § 924(a)(2) requires proof that a defendant knew he belonged to the relevant category of persons barred from possessing a firearm specified in 18 U.S.C. § 924(g), in that case an alien who is illegally or unlawfully in the United States. 139 S.Ct. 2191, 2194 (2019). On July 13, 2020, Juarico-Cervantes filed a pro se motion to vacate his conviction pursuant to 28 U.S.C. § 2255, arguing that the court should apply Rehaif retroactively and find that his conviction was no longer valid. He also made a claim for ineffective assistance of counsel, arguing that his attorney failed to file an appeal that would have permitted him to raise his Rehaif claim on direct appeal. Juarico-Cervantes obtained new counsel to assist with the § 2255 petition, and his new attorney filed a reply which included a request for an evidentiary hearing.
The district court denied Juarico-Cervantes' motion, reasoning that his admissions at his change of plea hearing-that he had entered the United States illegally and knew he was not permitted to possess the firearms listed in the indictment-were sufficient evidence that he was fully aware of his status, and that there was consequently no Rehaif violation. In a footnote, the district court also acknowledged that sufficient evidence existed in the record that "reasonable jurists could reach the opposite conclusion," given that Juarico-Cervantes had tried to purchase one of the firearms legally and his counsel's statement at sentencing that Juarico-Cervantes thought he had Second Amendment rights. Order on Mot. to Vacate, R. 53, Page ID #308 n.1.
The district court also addressed Juarico-Cervantes' ineffective assistance of counsel claim, determining that he could not show he was prejudiced by his attorney's conduct because he failed to show that he would have filed a timely appeal. First, the district court reasoned that that the petition for writ of certiorari in Rehaif was not granted until two months after the expiration of Juarico-Cervantes' appeal deadline. Second, the district court determined that Juarico-Cervantes was not prejudiced by his lawyer's failure to appeal because he failed to present evidence that he would not have pleaded guilty even if the district court had instructed him on the mens rea element of his offense. The district court denied Juarico-Cervantes's request for an evidentiary hearing, determining that no hearing was necessary because "Petitioner's arguments are contrary to law." Id. at Page ID #314. Petitioner timely appealed the district court's order denying his motion to vacate.
When reviewing a district court's denial of a motion to vacate pursuant to § 2255, this Court reviews conclusions of law de novo and factual findings for clear error. Braden v. United States, 817 F.3d 926, 929 (6th Cir. 2016) (citing Hyatt v. United States, 207 F.3d 831, 832 (6th Cir. 2000)). This Court reviews for abuse of discretion a district court's decision to refuse to hold an evidentiary hearing on a § 2255 motion. Martin v. United States, 889 F.3d 827, 831 (6th Cir. 2018). "A court abuses its discretion when it relies on clearly erroneous findings of fact, improperly applies the law, or employs an erroneous legal standard, or when we are firmly convinced that the trial court committed a clear error of judgment." Id. at 831 (quoting United States v. Kilpatrick, 798 F.3d 365, 378 (6th Cir. 2015)).
On appeal, Juarico-Cervantes requests that we reverse the district court's order denying his motion to vacate his conviction and sentence. He argues that: (1) the Supreme Court's decision in Rehaif should be applied retroactively to vacate his conviction since the district court failed to instruct him that knowledge of his status as an alien illegally and unlawfully in the United States was an element of the crime (his "retroactive Rehaif claim"), (2) his attorney provided ineffective assistance of counsel that caused him not to appeal the judgment in his case, and (3) the district court should have permitted him an evidentiary hearing on his claims. The government concedes that R...
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