Justia Immigration Law Opinion Summaries

In 1990, defendant, a Mexican citizen, illegally entered the US. Between 1994 and 2005, he was convicted of multiple crimes, including theft and drug offenses, and was deported twice. In 2009, he was convicted in state court of attempted aggravated kidnapping and sentenced to four years in prison. While serving that sentence, he was discovered by immigration authorities. He pleaded guilty to illegal reentry without a plea agreement, 18 U.S.C. 1326(a). At sentencing, after a 16-level enhancement pursuant to USSG 2L1.2(b)(1)(A), the district court determined an offense level of 12 and a criminal history category of IV. The corresponding range was 57-71 months in prison. The Seventh Circuit affirmed, rejecting arguments that: defendant was deprived of the opportunity to argue for a concurrent sentence and should therefore be given credit for time already served on his attempted aggravated kidnapping conviction; to avoid unwarranted sentencing disparities, a below-Guidelines sentence is appropriate to account for the lack of a fast-track program in the Northern District of Illinois; and that that the district court erred when it added a 16-level enhancement. View "United States v. Garcia-Ugarte" on Justia Law

Defendant, a 27-year-old Mexican citizen, pleaded guilty to being in the U.S. after being deported, 8 U.S.C. 1326(a), and was sentenced to 71 months, the top of the 57-71 month guidelines range. The Seventh Circuit affirmed, rejecting an argument that the judge should not have taken into account 41 arrests that had not resulted in convictions without determining that defendant had actually engaged in conduct for which he was arrested. A court may not rely on the prior arrest record itself in determining a sentence, but may consider underlying conduct detailed in arrest records where there is sufficient factual basis to conclude that the conduct actually occurred. For 15 arrests there was a summary either of a petition for adjudication of wardship or of the arrest report. The defendant did not question the accuracy of any of those and did not suggest that the other 26 arrests were ungrounded. The judge was entitled to assume that the arrests considered as a whole, coupled with five convictions, gave a more accurate picture of the likelihood of recidivism than the convictions and arrest summaries alone and justified the sentence. Given defendant’s criminal record, there was no basis for a cultural-assimilation adjustment. View "United States v. Lopez-Hernandez" on Justia Law

Defendant was convicted of illegal re-entry. Defendant contended that the district court erred in considering his need for anger management courses in determining the length of his sentence. At issue in this case was whether, when the law at the time of trial or plea is unsettled, but becomes clear while the case is pending on appeal, review for the second prong of the plain error test properly considers the law as it stood during the district court proceedings or at the time of the appellate court's decision. The Fifth Circuit Court of Appeals joined the majority of other circuits in holding that where the law is unsettled at the time of trial but settled by the time of appeal, the plainness of the error should be judged by the law at the time of appeal. The Court then held that the district court's determination under the second prong of the plain error test was plain error, and the error affected Defendant's substantial rights. The Court vacated Defendant's sentence and remanded for resentencing in accordance with this opinion. View "United States v. Escalante-Reyes" on Justia Law

The Criminal Justice Act (CJA) creates a system for the appointment and payment of counsel for defendants unable to afford representation. At issue here was subsection (c), which concerns the ability of district courts to appoint counsel in federal criminal prosecutions. Defendant, a Mexican national, pled guilty to illegal reentry. Before sentencing, Defendant filed a motion under subsection (c) for an additional court-appointed attorney to seek to have a prior state felony conviction set aside in an Iowa court. The prior Iowa conviction lengthened the advisory sentencing range for the illegal reentry offense. The district court determined the purpose would not be an appropriate use of CJA funds. The Fifth Circuit Court of Appeals affirmed, holding that Defendant's challenge to a prior, unrelated conviction in a state court that could affect the sentence he received on a new federal conviction was not an "ancillary matter" under the statute, and therefore, it was inappropriate to appoint counsel for Defendant in this case. View "United States v. Garcia" on Justia Law

Appellant Temitope Akinsade appealed a district court's denial of his petition for writ of error coram nobis, claiming that he was denied effective assistance of counsel when he plead guilty to embezzlement by a bank employee. Appellant is a Nigerian citizen who legally came to America in July 1988 at the age of seven and became a lawful permanent resident in May 2000. During his employment, Appellant cashed checks for several neighborhood acquaintances, who were not listed as payees on the checks, and deposited a portion of the proceeds from those checks into his own account. When interviewed by the FBI several months later, Appellant agreed to cooperate against the individuals for whom he cashed the checks. In early 2000, Appellant was charged with embezzlement by a bank employee. Relying on his attorney's advice that one count of embezzlement was not a deportable offense, Appellant pled guilty. The plea agreement made no mention that deportation was mandatory or even possible due to the offense. The district court sentenced Appellant to one month of imprisonment to be served in community confinement, a three-year term of supervised release, and a special assessment of $100. At sentencing, the district court recognized that Appellant's conduct was "out of character" based on his family background. The court thus gave Appellant the minimum sentence under the sentencing guidelines. Almost nine years after Appellant's conviction, immigration authorities arrested him at home and placed him in detention in Batavia, New York. After seventeen months in detention, the immigration authorities released Appellant and charged him with removability as an aggravated felon. The court held that while counsel's affirmative misrepresentations rendered his assistance constitutionally deficient under the first prong of "Strickland v. Washington," (466 U.S. 668, 687 (1984)), Appellant was not prejudiced as required under Strickland's second prong. It reasoned that its admonishment of the potential for deportation during the plea colloquy cured counsel's affirmative misrepresentations. The issue before the Fourth Circuit was whether counsel's misadvice was an error of the "most fundamental character" such that coram nobis relief is required to "achieve justice." Upon review, the Court found that counsel's affirmative misrepresentations that the crime at issue was non-deportable prejudiced Akinsade. Accordingly, the Court granted the petition for writ of error coram nobis and vacated Appellant's conviction. View "United States v. Akinsade" on Justia Law

A grand jury indicted Defendant for conspiring to distribute methamphetamine and for an immigration violation. Defendant conditionally pled guilty to conspiracy to distribute 500 grams or more of a mixture containing methamphetamine. The district court sentenced him to 108 months imprisonment. Defendant appealed the district court's denial of his motion to suppress evidence obtained as a result of a warrantless traffic stop, arguing that deputies lacked reasonable suspicion for the traffic stop. The Eighth Circuit Court of Appeals affirmed, holding that Defendant's Fourth Amendment rights were not violated, and the district court's admission of the evidence resulting from the traffic stop was proper. View "United States v. Zamora-Lopez" on Justia Law

Defendant Agapito Franco-Lopez appealed his conviction on one count of transporting an illegal alien. Defendant argued that the district court erred in denying his motion for acquittal because the government did not present evidence that the transported alien illegally "entered" the United States. In support, Defendant relied on the definition of "entry" used in the context of civil immigration law or in illegal reentry cases charged under 8 U.S.C. 1325 and 1326. As to this element of 8 U.S.C. 1324(a)(1)(A)(ii), the Tenth Circuit concluded the government needed only prove that the transported alien was present in the United States in violation of the law. Accordingly, the Court affirmed the district court. View "United States v. Franco-Lopez" on Justia Law

Petitioner Yonis Ahmed Ali, a native and citizen of Somalia, applied for asylum, withholding of removal, and protection under the Convention Against Torture (CAT). An immigration judge (IJ) denied Petitioner's applications, basing its denial of relief on its conclusion on an adverse credibility finding. The Board of Immigration Appeals (BIA) dismissed Petitioner's appeal. The Eighth Circuit Court of Appeals denied Petitioner's petition for review of the BIA order, holding that the IJ's adverse credibility determination, affirmed by the BIA, was supported by the record, and thus Petitioner could not prevail on his challenges to the decisions of the IJ and BIA. View "Ali v. Holder" on Justia Law

Borrome, a citizen of the Dominican Republic, and, since 1996 a lawful permanent resident of the U.S. pled guilty in 2002 to violations of the Federal Food, Drug, and Cosmetic Act, 21 U.S.C. 301-399d, prohibitions on unlicensed wholesale distribution of prescription “drugs” in interstate commerce. He was sentenced him to four months’ imprisonment followed by four months’ home confinement. In 2010 he was served with a notice of removal and the IJ reasoned that because Borrome’s offense involved unauthorized distribution of a Schedule II controlled substance (Oxycontin ), it is an aggravated felony under 8 U.S.C. 1101(a)(43)(B) pursuant to the “hypothetical federal felony test,” so that Borrome was removable under 8 U.S.C. 1227(a)(2)(B)(i) as an alien convicted of violating any law “relating to a controlled substance.” The Board of Immigration Appeals affirmed. Borrome has been removed from the United States. The Seventh Circuit reversed, concluding that violation of the FDCA wholesale distribution provisions does not constitute an aggravated felony and that those laws are not laws relating to a controlled substance. View "Borrome v. Att'y Gen. of the U.S." on Justia Law

After pleading guilty to illegal reentry, Defendant Francisco Bonilla received an enhanced sentence based on a prior Texas conviction for burglary of a habitation. On appeal, Defendant argued that the district court erred in applying the enhancement because his state conviction under Texas Penal Code section 30.02(a)(3) did not satisfy the definition of generic burglary under "Taylor v. United States," (495 U.S. 575 (1990)). Upon review, the Fourth Circuit disagreed and affirmed the district court's judgment. View "United States v. Bonilla" on Justia Law