United States v. Juan Moreno-Tapia

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4610
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JUAN ANTONIO MORENO-TAPIA, a/k/a Julian Castellanos,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Catherine C. Eagles,
District Judge. (1:14-cr-00241-CCE-1)
Argued: October 28, 2016 Decided: January 26, 2017
Before TRAXLER, DIAZ, and HARRIS, Circuit Judges.
Affirmed by published opinion. Judge Harris wrote the opinion,
in which Judge Traxler and Judge Diaz joined.
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.
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 (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
2
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, 133 S. Ct. 1103, 1105 (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
3
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 (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. 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. And because those
1The terms “deportation” and “removal” are interchangeable
for purposes of § 1326. United States v. Gomez, 757 F.3d 885,
891 n.1 (9th Cir. 2014). While § 1326(a) refers, inter alia, to
an alien who has been “deported” or “excluded,” the subsequently
enacted Illegal Immigration Reform and Immigrant Responsibility
Act of 1996 combined those once distinct proceedings into a
single category of “removal proceedings.” Jama v. Immigration &
Customs Enforcement, 543 U.S. 335, 349–50 (2005); Gomez, 757
F.3d at 891 n.1. Cases post-dating this amendment generally use
the term “removal proceedings,” although § 1326 continues to
refer to “deportation proceedings.” See 8 U.S.C. § 1326(d)(2).
4
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.
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.
5
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
6
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.
7
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 (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
8
convictions became final before that decision was issued. See
Chaidez, 133 S. Ct. at 1113.
With the state MAR ruling vacating his convictions in hand,
Moreno-Tapia returned to federal district court. According to
Moreno-Tapia, his removal order – a predicate for the charge of
illegal reentry – was subject to collateral attack under 8
U.S.C. § 1326(d) on the ground that it rested on
unconstitutional and since-vacated convictions. Moreno-Tapia
thus moved to vacate the 2009 removal order and, if successful,
to withdraw his guilty plea to the charge of illegal reentry.
That would leave in place the charge for failure to register as
a sex offender – but that charge, too, Moreno-Tapia argued,
could not go forward in light of the vacatur of his underlying
convictions. Accordingly, Moreno-Tapia also moved the district
court to dismiss both counts of the indictment against him.
At a hearing in July 2015, the district court denied all of
Moreno-Tapia’s motions. As to the illegal reentry charge, the
district court explained, the vacatur of Moreno-Tapia’s state
convictions was not dispositive; to make a case of illegal
reentry under § 1326, the government need not prove the
underlying convictions from 2007, but only that Moreno-Tapia in
fact had been removed in 2009. See J.A. 171 (“[T]he new
prosecution for illegal reentry is not based on the old vacated
conviction, it is based on the deportation; and the deportation
9
was based on a facially valid conviction at the time of the
deportation[.]”).
Nor, the district court held, could Moreno-Tapia mount a
collateral attack on the 2009 removal order based on the
purported constitutional deficiency of his 2007 convictions.
The district court reviewed the three-part standard of § 1326 –
exhaustion of administrative remedies, preclusion of judicial
review, and fundamental unfairness – and held that Moreno-Tapia,
who had consented to his deportation and never sought “any sort
of review of any part of the deportation proceedings,” could not
meet the first two requirements. J.A. 167. The court rejected
Moreno-Tapia’s argument that his failure to seek administrative
or judicial review should be excused because he was then unaware
of a potential constitutional infirmity in his state
convictions. Though there are cases excusing a failure to
exhaust when it is caused by a procedural irregularity in a
deportation proceeding itself, the court explained, those cases
“concern rights one has with the immigration proceeding,” not
with respect to an underlying conviction. J.A. 170. And here,
Moreno-Tapia had identified no procedural problems with his
immigration proceeding at all:
Mr. Moreno-Tapia does not contend he was affirmatively
misadvised by anyone involved in the deportation
proceedings concerning his right to contest the
deportation or to appeal the decision . . . . He has
not identified anything that immigration authorities
10
should have done during the course of the deportation
proceedings that they did not do, and the Court thus
finds that he’s not met the first two requirements of
the statute as those requirements would ordinarily be
interpreted.
J.A. 167.
Relying on Moreno-Tapia’s failure to satisfy the first two
requirements of § 1326, the district court had no need to make a
final determination as to the third factor, fundamental
unfairness. But the court did note that Moreno-Tapia was not
asserting actual innocence of the indecent liberties charges,
and that Padilla, on which the state MAR court relied, does not
apply retroactively. Ultimately, the court concluded that
§ 1326 and Mendoza-Lopez could provide no relief because Moreno-
Tapia’s complaint was not with his immigration proceedings but
rather with his underlying state convictions, independently
subject to judicial review through the state-court MAR process.
The court therefore denied Moreno-Tapia’s motions to vacate the
2009 removal order and to withdraw his guilty plea to the
illegal reentry charge.
The district court recognized that Moreno-Tapia’s motion to
dismiss the indictment against him was “dependent” on the
success of his motions to vacate his removal order and withdraw
his plea. J.A. 156. If the removal order and plea agreement
remained in effect, that is, then Moreno-Tapia would stand
convicted of illegal reentry, and the charge of failure to
11
register as a sex offender would be dismissed pursuant to the
plea agreement. Id. (“If I deny the motion to vacate the
deportation order . . . the motion to withdraw the guilty
plea . . . doesn’t need to be heard . . . and it sort of does
away with the motion to dismiss the indictment as well[.]”).
Nevertheless, the court went on to deny the motion to dismiss
both counts of the indictment “[t]o the extent [it] is still
before the [c]ourt.” J.A. 176.
In September 2015, the district court held a sentencing
hearing on the illegal reentry charge. Consistent with the
Presentence Report (“PSR”), and over Moreno-Tapia’s objection,
the district court used the vacated indecent liberties
convictions as the basis for a twelve-level enhancement to
Moreno-Tapia’s offense level under § 2L1.2 of the Sentencing
Guidelines, on the ground that Moreno-Tapia “previously was
deported” after a conviction for a “crime of violence.” U.S.
Sentencing Guidelines Manual § 2L1.2(b)(1) (U.S. Sentencing
Comm’n 2014) (amended 2016). After a minor downward departure,
the district court was left with a Guidelines range of 24 to 30
months, and sentenced Moreno-Tapia to 27 months’ imprisonment.
This timely appeal followed.
12
II.
A.
We begin with the core issue in this case: Moreno-Tapia’s
motion to vacate his removal order, without which, he argues, he
may not be convicted of illegal reentry. This court reviews de
novo a collateral attack on a removal order under 8 U.S.C.
§ 1326(d). El Shami, 434 F.3d at 663.
As described above, § 1326(d), like the Mendoza-Lopez
decision it codifies, is concerned with failures of due process
in an immigration proceeding that would make it fundamentally
unfair to rely on a removal order coming out of that proceeding.
In particular, where a procedural defect in an immigration
proceeding insulates the resulting order from judicial review,
due process requires that the order be subject to collateral
attack if it is relied on in a subsequent criminal prosecution.
See Mendoza-Lopez, 481 U.S. at 840 (holding that immigration
proceeding violated due process because immigration judge
permitted waivers of right to appeal that were not knowing);
§ 1326(d)(1), (2) (requiring, as condition of collateral attack,
that defendant have exhausted administrative remedies and been
deprived of judicial review). That principle is broad enough,
courts have held, that a failure to exhaust administrative
remedies or seek judicial review as required by § 1326(d) will
be excused, and a collateral attack permitted, where that
13
failure is itself the product of a procedural flaw in the
immigration proceeding. See, e.g., Sosa, 387 F.3d at 137
(excusing administrative exhaustion requirement of § 1326(d)(1)
where immigration judge fails to inform of right to apply for
administrative relief); United States v. Muro-Inclan, 249 F.3d
1180, 1183 (9th Cir. 2001) (finding waiver of right to appeal
removal order does not preclude collateral attack under
§ 1326(d) where immigration judge failed to advise of right to
seek relief from deportation); see also Lopez-Collazo, 824 F.3d
at 459 (accepting government concession that § 1326(d)
exhaustion requirements are excused by failure to provide
translator where language barrier prevents informed decision to
waive appeal rights).
But this case, as the district court recognized, is quite
different. The thrust of Moreno-Tapia’s argument is not that
his immigration proceedings were procedurally defective; it is
that his underlying state criminal proceedings were rendered
constitutionally infirm by his counsel’s failure to inform him
of the potential immigration consequences of his guilty plea.
At bottom, Moreno-Tapia asks us to find that his immigration
proceedings were fundamentally unfair and violated due process
not because of any intrinsic procedural irregularity, but
because they were predicated on unconstitutional state
convictions.
14
As the district court observed, there is an obvious
mismatch between the kind of claim Moreno-Tapia seeks to advance
and the concerns of Mendoza-Lopez and requirements of § 1326(d).
Perhaps most important, whereas Mendoza-Lopez and § 1326(d)(2)
focus on the preclusion of judicial review of an immigration
order as justification for subsequent collateral attack, here
Moreno-Tapia had access to a well-established route to judicial
review of his underlying state conviction, by way of the state
MAR statute. See J.A. 173 (“Mendoza-Lopez doesn’t help . . .
because in that case there were no avenues for judicial review
of the decision at issue. Here, the state court MAR statute
provides a well-established mechanism for judicial review of an
allegedly unconstitutional [conviction.]”). And while
immigration officials must satisfy certain due process
obligations with respect to their own proceedings, see, e.g.,
Mendoza-Lopez, 481 U.S. at 840; Lopez-Collazo, 824 F.3d at 461,
there is no authority imposing on them the duty to advise aliens
of potential legal infirmities in prior criminal proceedings.
See J.A. 170 (due process does not require “that immigration
officials evaluate and advise someone facing deportation based
on a deportable criminal conviction of all the possible reasons
the conviction might be invalid”).
We need not decide today, however, whether these hurdles
might be overcome, or whether due process might in some
15
circumstances demand that an immigration order based on an
unconstitutional conviction be subject to collateral attack.
That is because in this case, Moreno-Tapia’s argument is flawed
in its premise – that his state convictions in fact were
constitutionally infirm. Moreno-Tapia pleaded guilty in 2007,
three years before the Supreme Court’s decision in Padilla.
Because the Supreme Court subsequently decided that Padilla does
not apply retroactively, see Chaidez, 133 S. Ct. at 1113, any
failure by Moreno-Tapia’s lawyer to warn him of the possible
immigration consequences of his guilty plea would not render
Moreno-Tapia’s convictions constitutionally unsound. In other
words, Moreno-Tapia’s underlying convictions were not obtained
unconstitutionally, and as a result, he cannot prevail even if
we were to assume that an immigration order resting on an
unconstitutional conviction would be open to collateral attack
on that ground alone.
That the state MAR court vacated Moreno-Tapia’s convictions
under Padilla does not change our analysis. The government
suggests that the MAR court’s holding actually may rest on a
state-law rule requiring defendants such as Moreno-Tapia to be
made aware of deportation consequences arising from guilty
pleas. But whatever the explanation, the state court applied
Padilla retroactively to convictions that were final before
Padilla was decided. And despite Moreno-Tapia’s efforts to re-
16
characterize the state court decision as turning on something
other than Padilla, it is clear that the MAR court’s brief
order, citing Padilla and no other case, is in fact an
application of Padilla, see J.A. 237 (defendant’s plea was “not
sufficiently knowing and voluntary under Padilla v. Kentucky”) –
which is not surprising, given that Moreno-Tapia’s argument to
that court also rested entirely on Padilla. It is true, as
Moreno-Tapia argues, that the state court order is not before us
for review. But Moreno-Tapia has put before us, and squarely
so, the question of whether his underlying state convictions
were the result of a constitutional violation. And whatever the
merits of the MAR court decision under state law, under Chaidez,
there was no federal constitutional violation on which Moreno-
Tapia can base a collateral attack here.
Under § 1326(d), this crucial shortcoming in Moreno-Tapia’s
case shows up most plainly in application of the third
requirement for a collateral challenge – that entry of the
removal order in question be “fundamentally unfair.” To
demonstrate “fundamental unfairness” under § 1326(d), a
defendant must show both that his “due process rights were
violated by defects in his underlying deportation proceeding”
and also that he “suffered prejudice” as a result. Lopez-
Collazo, 824 F.3d at 460 (quoting El Shami, 434 F.3d at 664).
We have explained already the gap between Moreno-Tapia’s
17
challenge to his state criminal proceedings and the requirement
that he identify a procedural “defect[] in his underlying
deportation proceeding,” id. (emphasis added). But even
assuming Moreno-Tapia could satisfy the first prong of the
“fundamental unfairness” standard, the failure of his Padilla
claim means that he cannot satisfy the prejudice prong. 2
In Lopez-Collazo, we held that to meet § 1326(d)’s “actual
prejudice” requirement, a defendant must show that but for the
procedural errors at issue, there was a “reasonable probability
that he would not have been deported.” Id. at 462 (quoting El
Shami, 434 F.3d at 665). And, critically, in evaluating whether
a defendant likely would have been deported notwithstanding any
procedural defect, we consider the law as it stood at the time
of the immigration proceedings. Id. at 462-63, 466 (because law
at time of removal classified offense as aggravated felony,
entry of removal order does not prejudice defendant and
subsequent change in classification of offense does not permit
2For the first time on appeal, Moreno-Tapia does raise
certain alleged procedural deficiencies in his expedited
immigration proceedings, arguing that he was removed after eight
days rather than the fourteen days specified in 8 U.S.C.
§ 1228(b)(3), and that the notice DHS provided him did not
include a citation for the statutory definition of an aggravated
felony. Ordinarily, of course, we do not reach issues that were
not presented first to the district court. Robinson v. Equifax
Info. Servs., LLC, 560 F.3d 235, 242 (4th Cir. 2009). And in
any event, for the reasons discussed below, Moreno-Tapia cannot
demonstrate that he was prejudiced by any purported defect he
now identifies.
18
collateral attack); see also United States v. Gomez, 757 F.3d
885, 898-99 (9th Cir. 2014) (courts “look to the law at the time
of the deportation proceedings” in assessing prejudice under
§ 1326(d)).
Here, Moreno-Tapia was removed from the United States in
2009, a year before Padilla was decided. The law at the time of
his removal, in other words, gave Moreno-Tapia no right to be
informed by his counsel of the potential immigration
consequences of his guilty plea. Under the reasoning of Lopez-
Collazo, it likely follows that any failure of due process
connected to Moreno-Tapia’s immigration proceedings could not
have caused him “actual prejudice,” as he would have remained
subject to removal based on his then-valid prior convictions.
See 824 F.3d at 466. But this case is more straightforward
still, because as a result of Chaidez’s holding that Padilla
does not apply retroactively, Moreno-Tapia’s state convictions
not only were constitutional when Moreno-Tapia was removed, but
remain constitutional today. 3 There is no process, in other
words, that could have led to a finding that Moreno-Tapia’s
underlying state convictions were anything but constitutionally
3We therefore need not consider whether the principle
articulated in Lopez-Collazo – that courts refer to the law as
it stood at the time of removal in assessing prejudice under
§ 1326(d) – would extend to new substantive rules applied
retroactively by the Supreme Court. See Welch v. United States,
136 S. Ct. 1257, 1264-65 (2016).
19
valid, and as a result, Moreno-Tapia’s “case for ‘fundamental
unfairness’ collapses[.]” See id. at 465.
Accordingly, we need not consider whether Moreno-Tapia
could satisfy the first two requirements of § 1326(d) –
administrative exhaustion and deprivation of judicial review –
or whether his failure to do so could be excused on some ground.
Because the state convictions on which his removal order is
based were at the time of removal and are today constitutionally
valid, Moreno-Tapia cannot show the requisite “fundamental
unfairness” under § 1326(d), and his collateral challenge fails
for that reason alone. And by the same token, due process is
not offended when, as the district court put it, “someone who
has been lawfully deported based on a [constitutionally valid]
felony conviction and who has been advised that it would be
illegal to come back into the country is prosecuted for exactly
that action.” J.A. 176. We therefore affirm the district
court’s denial of Moreno-Tapia’s motions to vacate the order of
removal and withdraw his guilty plea to illegal reentry. 4
4
We also find that to the extent Moreno-Tapia’s motion to
dismiss the indictment was still before the district court, see
supra at 11-12, it was properly denied. As discussed above, the
government was entitled to charge Moreno-Tapia with illegal
reentry notwithstanding the vacatur of his state court
convictions. And once the district court held that Moreno-
Tapia’s plea agreement remained enforceable, there no longer was
any ground for a challenge to the charge of failure to register
as a sex offender under SORNA: Pursuant to the plea agreement,
(Continued)
20
B.
Moreno-Tapia also challenges his sentence for illegal
reentry, arguing that the district court improperly took account
of his vacated state convictions in calculating his Sentencing
Guidelines range. We review the district court’s legal
interpretation of a Guidelines provision de novo, see United
States v. Allen, 446 F.3d 522, 527 (4th Cir. 2006), and finding
no error, we affirm.
Violations of § 1326’s illegal-reentry provision are
governed by § 2L1.2 of the Sentencing Guidelines, which provides
for enhancements based on specific offense characteristics. As
relevant here, § 2L1.2 imposes a 12-level enhancement to the
offense level of a defendant who “previously was deported . . .
after[] a conviction” for a “crime of violence.” U.S.S.G.
§ 2L1.2(b)(1) (2014). 5 Moreno-Tapia does not dispute that the
offense of which he was convicted – indecent liberties with a
that count of the indictment was dismissed at sentencing on the
government’s motion. We thus have no occasion to consider the
merits of Moreno-Tapia’s conditional challenge to his indictment
for failure to register.
5 The offense-level increase rises to 16 if a prior
conviction for a crime of violence receives criminal history
points under a different Guidelines provision. See U.S.S.G.
§ 2L1.2(b)(1)(A). The parties agree that Moreno-Tapia’s now-
vacated state convictions do not receive criminal history
points, and the district court did not apply the alternative 16-
level enhancement.
21
child – qualifies as a “crime of violence” under § 2L1.2.
Instead, he argues that because his convictions were vacated
after his removal and illegal reentry, they should not have been
taken into account at sentencing under § 2L1.2. We disagree.
Although we have addressed the question only in an
unpublished decision, see United States v. Moran-Rosario, 466 F.
App’x 257 (4th Cir. 2012), other circuits have reached the same
conclusion, holding that the relevant time for determining
whether a prior conviction qualifies for enhancement under
§ 2L1.2 is the date of the defendant’s deportation and not the
date of a subsequent illegal reentry charge or sentencing. See
id. at 258 (citing cases). In other words, if a qualifying
conviction was on the books when the defendant was deported,
then it serves to enhance a sentence for illegal reentry under
§ 2L1.2 even if it is subsequently vacated, see, e.g., United
States v. Orduno-Mireles, 405 F.3d 960, 961 n.1 (11th Cir.
2005); United States v. Garcia-Lopez, 375 F.3d 586, 588 (7th
Cir. 2004); United States v. Luna-Diaz, 222 F.3d 1, 4 (1st Cir.
2000), or otherwise set aside, see, e.g., United States v.
Campbell, 167 F.3d 94, 98 (2d Cir. 1999) (conviction set aside
when probation term completed).
This follows, the courts have reasoned, from two features
of § 2L1.2. First, the provision is written in the past tense,
focusing on the time of deportation: The enhancement applies if
22
a defendant who illegally reenters “previously was
deported . . . after[] a conviction,” U.S.S.G. § 2L1.2(b)(1),
demonstrating that “the present status of the [] conviction is
irrelevant. It is impossible to alter the historical fact that
the defendant was convicted, and then deported.” Luna-Diaz, 222
F.3d at 4. And second, when sentencing provisions are intended
to exclude subsequently vacated convictions from their scope,
they generally say so expressly – like other Guidelines
provisions, see, e.g., U.S.S.G. § 4A1.2, cmt. n.6 (in
calculating criminal history, “[s]entences resulting from
convictions that . . . have been ruled constitutionally invalid
. . . are not to be counted”), and the Armed Career Criminal
Act, see 18 U.S.C. § 921(a)(20) (barring generally the use of
“[a]ny conviction which has been expunged, or set aside”). That
§ 2L1.2 has no similar express exception for vacated convictions
“compels” a different result. Luna-Diaz, 222 F.3d at 5; see
Garcia-Lopez, 375 F.3d at 588-89.
We agree with this persuasive line of authority. And
indeed, Moreno-Tapia himself does not really take issue with
this straightforward reading of § 2L1.2. Instead, he argues
that there should be an exception to the general rule that
§ 2L1.2 reaches convictions valid at the time of deportation for
convictions that subsequently are vacated on constitutional
grounds. For support, he points to Luna-Diaz, which leaves
23
open the possibility of such an exception, noting that “allowing
§ 2L1.2(b)’s enhancement to rest on a prior conviction vacated
as a result of a constitutional infirmity, egregious error of
law, or determination of innocence, might in some limited
circumstances raise constitutional due process concerns.” 222
F.3d at 6 n.5. We similarly left the question open in our
unpublished decision in Moran-Rosario, recognizing the potential
exception flagged in Luna-Diaz but finding that any such
exception was not implicated on the facts of that case. 466 F.
App’x at 258-59.
We again have no occasion to decide the issue. As
explained above, because Padilla does not apply retroactively,
Moreno-Tapia’s state convictions were not unconstitutionally
obtained. Nor, as the district court emphasized, has Moreno-
Tapia contended that he is actually innocent of the state
indecent liberties charges. Accordingly, application of
§ 2L1.2’s 12-level enhancement does not implicate the potential
due process concerns articulated in Luna-Diaz and Moran-Rosario.
Cf. Garcia-Lopez, 375 F.3d at 589 (applying § 2L1.2 enhancement
where conviction vacated on state-law grounds). Under these
circumstances, the district court correctly applied § 2L1.2’s
12-level increase to Moreno-Tapia’s offense level, and we affirm
its sentencing determination.
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III.
For the foregoing reasons, we affirm the judgment of the
district court.
AFFIRMED
25