United States v. Moreno-Tapia

• Decision Date: 26 January 2017
• Docket Number: No. 15-4610,15-4610
• Citation: 848 F.3d 162
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Juan Antonio MORENO–TAPIA, a/k/a Julian Castellanos, Defendant–Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

848 F.3d 162

UNITED STATES of America, Plaintiff–Appellee,

v.Juan Antonio MORENO–TAPIA, a/k/a Julian Castellanos, Defendant–Appellant.

No. 15-4610

United States Court of Appeals, Fourth Circuit.

Argued: October 28, 2016

Decided: January 26, 2017

ARGUED: 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.

Before TRAXLER, DIAZ, and HARRIS, Circuit Judges.

Affirmed by published opinion. Judge Harris wrote the opinion, in which Judge Traxler and Judge Diaz joined.

PAMELA HARRIS, Circuit Judge:

In 2007, appellant Juan Antonio Moreno–Tapia, a native of Mexico, pleaded guilty in North Carolina court to three counts of indecent liberties with a child. According to Moreno–Tapia, neither his counsel nor the court informed him of the potential immigration consequences of his guilty plea. But those consequences turned out to be significant, and in 2009, Moreno–Tapia was removed from the United States on the basis of his state convictions.

After Moreno–Tapia reentered the country without permission, he was charged in federal court in 2014 with illegal reentry by a removed alien, see 8 U.S.C. § 1326(a), (b)(2), as well as failure to register as a sex offender under SORNA, the Sex Offender Registration and Notification Act, see 18 U.S.C. § 2250. Moreno–Tapia argued, however, that his underlying convictions were unconstitutional in light of the Supreme Court's intervening decision in Padilla v. Kentucky , 559 U.S. 356, 374, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), holding that the Sixth Amendment requires a defense attorney to advise a non-citizen client of the immigration risks of a guilty plea. And, indeed, in 2015, a North Carolina court vacated Moreno–Tapia's convictions, relying on Padilla .

The primary question before us now is what effect the alleged constitutional deficiency in Moreno–Tapia's state convictions has on his subsequent prosecution for illegal reentry. We conclude that the alleged infirmity has no effect. Because Padilla does not apply retroactively to defendants like Moreno–Tapia, convicted before the case was decided, see Chaidez v. United States , ––– U.S. ––––, 133 S.Ct. 1103, 1105, 185 L.Ed.2d 149 (2013), Moreno–Tapia's convictions remain valid today as a matter of federal law, and his attempt to collaterally attack his 2009 removal is unavailing on that ground alone.

Accordingly, we hold that the district court properly denied Moreno–Tapia's motion to vacate the 2009 removal order and to withdraw his guilty plea to the charge of illegal reentry. And for similar reasons, we find no error in the district court's reliance on the vacated state convictions in determining Moreno–Tapia's sentencing range under the Sentencing Guidelines. We therefore affirm the judgment of the district court in all respects.

I.

A.

We begin with a brief overview of the statutory background relevant to the illegal reentry charge against Moreno–Tapia. Under 8 U.S.C. § 1326(a) and b(2), an alien who has been removed from the United States after being convicted of an aggravated felony—as Moreno–Tapia was in 2009, based on his state convictions—commits a felony if he subsequently reenters the United States without permission. To win a conviction under § 1326, the government must prove, as an element of the offense, the defendant's prior removal or deportation. See United States v. El Shami , 434 F.3d 659, 663 (4th Cir. 2005).¹

Typically, the government may rely on the removal order itself, issued by the Department of Homeland Security ("DHS"), to meet this burden. But in United States v. Mendoza–Lopez , 481 U.S. 828, 107 S.Ct. 2148, 95 L.Ed.2d 772 (1987), the Supreme Court held that the fact of a removal order may not be treated as conclusive proof of an element of a criminal offense where the immigration proceeding "was not conducted in conformity with due process." Id. at 834, 838–39, 107 S.Ct. 2148. In that case, the Court concluded, the underlying immigration proceeding violated due process, because the immigration judge permitted improper waivers of the right to appeal and failed to advise of eligibility to apply for suspension of deportation. Id. at 840, 107 S.Ct. 2148. And because those procedural defects foreclosed judicial review of the resulting deportation order, the Court held, the defendants were entitled to collaterally attack that order in their subsequent prosecution for illegal reentry. Id. at 837–39, 107 S.Ct. 2148.

Congress responded by codifying the principle of Mendoza–Lopez in 8 U.S.C. § 1326(d). See United States v. Sosa , 387 F.3d 131, 136 (2d Cir. 2004).

Under that statute, in order to bring a successful collateral attack against a removal order, the defendant in an illegal reentry prosecution must meet three requirements, demonstrating that:

(1) [he or she] exhausted any administrative remedies that may have been available to seek relief against the order;

(2) the deportation proceedings at which the order was issued improperly deprived the alien of the opportunity for judicial review; and

(3) the entry of the order was fundamentally unfair.

8 U.S.C. § 1326(d) ; see United States v. Lopez–Collazo , 824 F.3d 453, 458 (4th Cir. 2016). Like Mendoza–Lopez , these three factors—exhaustion of administrative remedies, the denial of judicial review, and fundamental unfairness—are concerned with procedural irregularities in immigration proceedings that may insulate the resulting orders from judicial review, making it fundamentally unfair to rely on those orders in later criminal prosecutions. Sosa , 387 F.3d at 136.

B.

Moreno–Tapia immigrated to the United States from Mexico with his family as a child. His parents became legal permanent residents, as did his five siblings. Moreno–Tapia applied for legal permanent residency, but the process never advanced due to his eventual removal from the United States.

There are two underlying proceedings relevant to this case: a state prosecution for indecent liberties with a child, and a subsequent immigration proceeding that led to Moreno–Tapia's deportation. First, in 2006, Moreno–Tapia was charged in North Carolina court with three counts of felony indecent liberties with a child, see N.C. Gen. Stat. Ann. § 14–202.1, arising from Moreno–Tapia's consensual relationship with a fifteen-year old girl when he was twenty-one. Moreno–Tapia pleaded guilty and was sentenced to 15 to 18 months' imprisonment. At the plea hearing, the court instructed Moreno–Tapia that he would be required to register as a sex offender after his release from prison. But Moreno–Tapia alleges that he was not informed of the immigration consequences of his guilty plea by his attorney or by the court. Although his plea document noted that deportation was a possible consequence, Moreno–Tapia did not sign the plea document and claims he never saw a copy of it.

Second, while Moreno–Tapia was serving his state sentence, DHS initiated removal proceedings, on the ground that his indecent liberties convictions qualified as aggravated felonies subjecting him to deportation. See 8 U.S.C. § 1227(a)(2)(A)(iii). Because Moreno–Tapia was never lawfully admitted to the United States for permanent residence, he was subject to an expedited removal process. See 8 U.S.C. § 1228(b) ; Etienne v. Lynch , 813 F.3d 135, 138–40 (4th Cir. 2015) (describing expedited removal process). Instead of being afforded a hearing before an immigration judge, Moreno–Tapia was served with a Notice of Intent to Issue a Final Administrative Removal Order ("NOI"), indicating that DHS would enter a final removal order and that Moreno–Tapia had ten days to rebut the charge in writing. See 8 C.F.R. § 238.1(b)(2)(i) ; Etienne , 813 F.3d at 138–39. Moreno–Tapia did not contest the charge and instead requested that he be removed to Mexico. In March of 2009, soon after service of a final removal order and Moreno–Tapia's release from state prison, DHS deported Moreno–Tapia.

C.

At some point prior to 2011, Moreno–Tapia reentered the United States without permission and returned to North Carolina. He did not register as a sex offender under SORNA, despite his convictions for a qualifying sex offense. A subsequent arrest revealed him to the authorities and led to the current federal proceeding.

In June 2014, Moreno–Tapia was indicted in the Middle District of North Carolina on two charges: illegal reentry by a removed alien, under 8 U.S.C. § 1326(a) and (b)(2) ; and failure to register as a sex offender, under 18 U.S.C. § 2250. The parties entered into a written plea agreement, under which Moreno–Tapia pleaded guilty to the illegal reentry charge, and the government agreed to dismissal of the charge for failure to register.

After his guilty plea, Moreno–Tapia in February 2015 returned to North Carolina court and filed a Motion for Appropriate Relief ("MAR") seeking to vacate his state indecent liberties convictions. Relying on the Supreme Court's 2010 decision in Padilla v. Kentucky , 559 U.S. 356, 130 S.Ct. 1473 (2010) —issued three years after his convictions—Moreno–Tapia argued that his convictions should be set aside because his lawyer's failure to inform him of the immigration consequences of his guilty plea meant that his plea was not knowing and voluntary. The North Carolina court agreed, and vacated Moreno–Tapia's convictions on the ground that they "were the result of a plea that was not sufficiently knowing and voluntary under Padilla [.]" J.A. 237. Neither Moreno–Tapia nor the North Carolina court addressed the Supreme Court's 2013 decision holding that Padilla does not apply retroactively to defendants like Moreno–Tapia, whose convictions became final before that...