Jimenez, Jocelyn v. United States , 154 F. App'x 540 ( 2005 )

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted November 17, 2005*
Decided November 18, 2005
Before
Hon. WILLIAM J. BAUER, Circuit Judge
Hon. JOHN L. COFFEY, Circuit Judge
Hon. DIANE S. SYKES, Circuit Judge
No. 05-2955
Appeal from the United States District
JOCELYN JIMENEZ, Court for the Northern District of
Petitioner-Appellant, Illinois, Eastern Division
v. No. 05 C 1161
UNITED STATES OF AMERICA, Matthew F. Kennelly,
Respondent-Appellee. Judge.
ORDER
Jocelyn Jimenez pleaded guilty to one count of willfully aiding and assisting
in the preparation and presentation of false tax returns, 26 U.S.C. § 7206(2), and
one count of attempting to interfere with the administration of the Internal
Revenue Code, 26 U.S.C. § 7212(a). She was sentenced to 18 months’ imprisonment
and ordered to pay restitution of $105,918. Jimenez is a citizen of the Philippines,
and after her conviction the Department of Homeland Security initiated removal
*
After an examination of the briefs and the record, we have concluded that
oral argument is unnecessary. Thus, the appeal is submitted on the briefs and the
record. See Fed. R. App. P. 34(a)(2).
No. 05-2955 Page 2
proceedings against her. She did not appeal her conviction or sentence, but did
move under 28 U.S.C. § 2255 to vacate, set aside, or correct the sentence, arguing
among other things that her counsel was ineffective for failing to advise her that
her guilty plea would lead to her removal. She supplemented her motion to add a
claim under United States v. Booker, 125 S.Ct. 738 (2005), that her Sixth
Amendment rights were violated when the district court sentenced her based on
facts that she did not admit nor were found by a jury.
The district court sua sponte dismissed Jimenez’s Booker claim, relying on
our holding in McReynolds v. United States, 397 F.3d 479, 481 (7th Cir. 2005), that
Booker is not retroactive to criminal cases that became final before its release on
January 12, 2005. The district court then denied Jimenez’s § 2255 motion, ruling in
relevant part that removal is a collateral consequence of the criminal process and
thus counsel’s failure to advise her of this consequence does not amount to
ineffective assistance. The district court granted Jimenez a certificate of
appealability on her claim of ineffective assistance of counsel “concerning counsel’s
failure to advise her of the deportation consequences of her guilty plea.”
On appeal Jimenez reiterates that her lawyer was ineffective in failing to
inform her that her guilty plea might result in her removal. But like most other
courts to address the question, we have concluded that the possible immigration
consequences of a guilty plea are “collateral aspects of the prosecution” not covered
by the Sixth Amendment, and thus the failure to advise her of this consequence
does not amount to ineffective assistance of counsel. Santos v. Kolb, 880 F.2d 941,
944 (7th Cir. 1989). See also Broomes v. Ashcroft, 358 F.3d 1251, 1256-57 (10th
Cir. 2004); United States v. Fry, 322 F.3d 1198, 1200-01 (9th Cir. 2003); United
States v. Gonzalez, 202 F.3d 20, 25-28 (1st Cir. 2000). But cf. United States v.
Couto, 311 F.3d 179, 188-191 (2nd Cir. 2002) (noting in dicta that removal may no
longer be a merely collateral consequence of conviction for aliens because the 1996
amendment to the Immigration and Naturalization Act makes removal an
“essentially certain, automatic, and unavoidable consequence” of an alien’s
conviction for an aggravated felony).
Finally, Jimenez renews her contention that the district court erred when it
dismissed her claim that she was sentenced in violation of Booker. As the district
court explained, however, Booker is not retroactive to cases such as Jimenez’s that
became final before January 2005. See McReynolds, 397 F.3d at 481. We decline to
revisit that decision, and the district court’s orders dismissing and denying
Jimenez’s claims are AFFIRMED.