United States v. Faustino Gomez
2013 U.S. App. LEXIS 20410
| 9th Cir. | 2013Background
- Gomez, a Mexican national, pleaded guilty in Arizona (2004) to attempted sexual conduct with a minor (victim under 15) and was released from state custody in January 2006; ICE served a Notice to Appear and the next day he executed a bilingual Stipulated Removal form and was removed the following day without an IJ hearing.
- The stipulated form waived rights to counsel, an IJ hearing, relief (including voluntary departure), and appeal; the IJ, relying on the written stipulation, found the waiver "voluntary, knowing, and intelligent."
- In 2010 Gomez was arrested in Washington; he was indicted (2011) for illegal reentry under 8 U.S.C. § 1326 and moved to dismiss, claiming the 2006 removal was invalid for due process and regulatory reasons and that he would have sought voluntary departure. The district court denied the motion; Gomez pled guilty reserving the right to appeal.
- At sentencing the PSR applied a 16-level enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(ii) based on Gomez’s prior conviction as a "crime of violence," producing a Guidelines range of 51–63 months; the district court imposed 22 months. Gomez objected to the enhancement.
- The Ninth Circuit held the 2006 removal invalid for two independent reasons (invalid waiver of appeal; IJ violated 8 C.F.R. § 1003.25(b) by adopting the waiver without an adequate factual record) but affirmed the denial of dismissal because Gomez was ineligible for voluntary departure at the time of removal. The court vacated the sentence and remanded because § 13-1405 does not categorically qualify as a "crime of violence."
Issues
| Issue | Plaintiff's Argument (Gomez) | Defendant's Argument (Government) | Held |
|---|---|---|---|
| 1) May Gomez collaterally attack his 2006 removal under 8 U.S.C. § 1326(d)? | The stipulated removal was invalid (due process/regulatory violations), so § 1326(d) requirements are met. | The removal was valid; government proved waiver and IJ compliance. | Removal was procedurally invalid (meets § 1326(d)(1)–(2)) but dismissal of § 1326 indictment denied because Gomez failed to prove prejudice — he was ineligible for voluntary departure. |
| 2) Was Gomez’s waiver of appeal "knowing and intelligent" (due process)? | Waiver invalid: en masse reading, no adequate individualized explanation in a language he fully understands, and he lacked counsel. | The signed bilingual stipulation and IJ’s finding suffice to show valid waiver. | Waiver invalid; government did not prove by clear and convincing evidence that waiver was valid (Ramos/Reyes-Bonilla controls). |
| 3) Did the IJ violate 8 C.F.R. § 1003.25(b) when entering the stipulated removal? | IJ lacked an adequate factual record to find the waiver voluntary, knowing, and intelligent. | The regulation allows an IJ to enter orders without a hearing based on the written stipulation and charging documents. | IJ violated § 1003.25(b) because the record before the IJ was insufficient to support the required finding. |
| 4) Did Arizona Rev. Stat. § 13-1405 (sexual conduct with a minor under 15) categorically qualify as a "crime of violence" (statutory rape or sexual abuse of a minor) under U.S.S.G. § 2L1.2? | The conviction is a crime of violence (statutory rape/sexual abuse of a minor) supporting the 16-level enhancement. | § 13-1405 qualifies as statutory rape/sexual abuse for enhancement purposes. | No; under current Ninth Circuit and Supreme Court (Descamps) principles § 13-1405 (including under-15 variant) lacks elements (age-difference/abuse) of the generic offenses, so the statute is not categorically a "crime of violence." Sentence vacated and remanded. |
Key Cases Cited
- United States v. Mendoza-Lopez, 481 U.S. 828 (due process requires meaningful review when administrative findings underpin criminal sanctions)
- United States v. Ramos, 623 F.3d 672 (9th Cir. 2010) (Eloy stipulated removal process can produce invalid waivers; competency of individualized explanation required)
- United States v. Reyes-Bonilla, 671 F.3d 1036 (9th Cir. 2012) (government bears burden to prove valid waiver by clear and convincing evidence)
- Descamps v. United States, 133 S. Ct. 2276 (statute that is broader or missing an element of the generic offense cannot be analyzed under the modified categorical approach)
- Estrada-Espinoza v. Mukasey, 546 F.3d 1147 (9th Cir. 2008) (en banc) (defining generic statutory-rape framework including age-difference element)
- United States v. Vidal-Mendoza, 705 F.3d 1012 (9th Cir. 2013) (prejudice inquiry looks to law in effect at time of removal; applying precedent to eligibility for relief)