Tuesday, December 14, 2010

Vacatur of felony conviction after unlawful entry not a basis for reducing the reentry sentence

Castellon-Gutierrez v. United States, Nos. WDQ-10-1711, WDQ-09-0282, 2010 WL 4985685 (D. Md. Dec. 6, 2010):

Petitioner was granted a writ of error coram nobis in state court because the plea hearing violated Petitioner's due process rights.  This is because Petitioner was not advised of the elements of the crime of robbery.

Ripeness.  Subsequently, Petitioner filed a motion pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct a sentence for unlawful reentry.  The Government argued that Petitioner's motion was not ripe because the vacatur of the robbery conviction had been appealed.  The Court found that Petitioner's motion was ripe for judicial review because, although the pending appeal favors withholding review, that consideration is outweighed by the hardship that dismissing the claim may cause Petitioner, who withdrew his Fourth Circuit direct appeal so the Court could decide his § 2255 motion

Effect of Vacatur.  The Fourth Circuit has not addressed whether a defendant—who is convicted of a violent felony, subsequently deported, and then who unlawfully reenters the country—may have his sentence reduced if the violent felony conviction is vacated.  Other circuits have addressed this question and held that the plain language of the statute and sentencing guidelines generally preclude a reduced sentence.  The Court in this case sided with these "other circuits" (namely the Seventh, Tenth, and Eleventh Circuits) because the present status of the felony conviction is irrelevant.  The correct inquiry is based on the historical fact that a disabling predicate offense (the violent felony) stood at the time of the present offense (unlawful reentry).  Accordingly, vacatur of the felony conviction, after the defendant's unlawful reentry, usually is not a basis for reducing the reentry sentence.

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