United States v. Juan Moreno-Tapia
2017 U.S. App. LEXIS 1404
| 4th Cir. | 2017Background
- Moreno-Tapia, a Mexican national, pleaded guilty in North Carolina (2007) to three counts of indecent liberties with a child and was sentenced; he alleges he was not advised of immigration consequences at plea.
- While serving his state sentence, DHS initiated expedited removal; Moreno-Tapia did not contest and was removed to Mexico in 2009.
- Moreno-Tapia later reentered the U.S. without authorization and was indicted (2014) for illegal reentry under 8 U.S.C. § 1326 and for failing to register under SORNA; he pleaded guilty to illegal reentry.
- Relying on Padilla v. Kentucky, Moreno-Tapia vacated his state convictions in state court (2015) via a Motion for Appropriate Relief; Padilla held counsel must advise noncitizens of immigration consequences of a plea.
- Moreno-Tapia then moved in federal court to vacate his 2009 removal order under 8 U.S.C. § 1326(d) and to withdraw his illegal-reentry plea, arguing the removal rested on unconstitutional convictions; the district court denied relief and applied a 12-level § 2L1.2 enhancement based on the prior convictions.
- The Fourth Circuit affirmed: Padilla does not apply retroactively to convictions final before Padilla (Chaidez), so the state convictions were not constitutionally invalid for purposes of § 1326(d) or sentencing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Moreno-Tapia may collaterally attack his 2009 removal under 8 U.S.C. § 1326(d) based on later-vacated state convictions grounded in Padilla | Vacatur of state convictions under Padilla shows the removal rested on an unconstitutional conviction, so the removal order is subject to collateral attack | §1326(d) requires defects in the immigration proceeding; Padilla does not apply retroactively (Chaidez), so the convictions were constitutional at removal and remain valid for §1326(d) purposes | Denied: collateral attack fails because Padilla is not retroactive and Moreno-Tapia cannot show the removal was fundamentally unfair |
| Whether failure to exhaust administrative remedies or seek judicial review can be excused here | Excuse exhaustion because defendant lacked meaningful ability to challenge removal arising from an unconstitutional underlying conviction | Exhaustion is aimed at defects in immigration proceedings; Moreno-Tapia had state MAR available and identified no procedural defect in immigration proceedings | Court did not need to resolve exhaustion; held §1326(d)’s ‘‘fundamental unfairness’’ prong fails regardless |
| Whether Padilla-based state-court vacatur alters federal law assessing prejudice under §1326(d) | State vacatur shows prejudice from the deportation and so should permit collateral attack | Federal retroactivity rule (Chaidez) controls; law at time of removal governs prejudice inquiry — Padilla could not have prevented removal in 2009 | Held: Chaidez means Padilla is not retroactive; no prejudice shown; collateral attack fails |
| Whether vacated state convictions may be used to enhance a §1326 sentence under U.S.S.G. §2L1.2 | Vacatur should preclude using the convictions for enhancement | §2L1.2 looks to convictions in effect at time of deportation; subsequent vacatur does not negate the historical fact of conviction and deportation | Held: Enhancement proper — prior convictions valid at time of deportation may be used; no constitutional exception applied here since Padilla is not retroactive and no innocence claim was made |
Key Cases Cited
- Padilla v. Kentucky, 559 U.S. 356 (2010) (Sixth Amendment requires counsel to advise noncitizen clients of deportation risk of guilty plea)
- Chaidez v. United States, 568 U.S. 342 (2013) (Padilla decision does not apply retroactively to convictions already final)
- Mendoza-Lopez v. United States, 481 U.S. 828 (1987) (removal order may not be treated as conclusive when immigration proceeding violated due process)
- United States v. El Shami, 434 F.3d 659 (4th Cir. 2005) (government must prove prior removal as element in §1326 prosecution)
- United States v. Lopez-Collazo, 824 F.3d 453 (4th Cir. 2016) (requirements for collateral attack under §1326(d); evaluate prejudice by law at time of removal)
- United States v. Sosa, 387 F.3d 131 (2d Cir. 2004) (interpreting §1326(d) and excusing exhaustion where procedural defects in immigration proceedings prevented review)