US v. Juan Moreno-Tapia

Filing

PUBLISHED AUTHORED OPINION filed. Originating case number: 1:14-cr-00241-CCE-1. [1000010704]. [15-4610]

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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.

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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, MorenoTapia 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

convictions

were

argued,

however,

unconstitutional

in

that

light

his
of

underlying

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

immigration risks of a guilty plea.

client

of

the

And, indeed, in 2015, a

North Carolina court vacated Moreno-Tapia’s convictions, relying
on Padilla.
The
alleged

primary

question

constitutional

before

us

deficiency
2

now
in

is

what

effect

Moreno-Tapia’s

the

state

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convictions
reentry.

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has

on

his

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subsequent

prosecution

for

illegal

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

reentry.

his

guilty

plea

to

the

charge

of

illegal

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
3

2009,

based

on

his

state

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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.”
838-39.

In

immigration

that

case,

proceeding

the

Court

violated

concluded,

due

process,

Id. at 834,

the

underlying

because

the

immigration judge permitted improper waivers of the right to
appeal

and

suspension

failed
of

to

advise

deportation.

of

Id.

1

at

eligibility
840.

And

to

apply

because

for
those

The 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

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procedural defects foreclosed judicial review of the resulting
deportation order, the Court held, the defendants were entitled
to

collaterally

attack

that

order

prosecution for illegal reentry.

in

their

subsequent

Id. at 837-39.

Congress responded by codifying the principle of MendozaLopez 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

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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

deportation.

proceeding

that

led

to

Moreno-Tapia’s

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.
hearing,

the

court

instructed

Moreno-Tapia

that

At the plea
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

deportation

court.
was

a

Although
possible

his

plea

consequence,

document

noted

Moreno-Tapia

did

that
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,
6

on

the

ground

that

his

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indecent liberties convictions qualified as aggravated felonies
subjecting

him

to

§ 1227(a)(2)(A)(iii).

deportation.

See

8

U.S.C.

Because Moreno-Tapia was never lawfully

admitted to the United States for permanent residence, he was
subject

to

§ 1228(b);

an

expedited

Etienne

v.

removal

Lynch,

813

process.
F.3d

135,

2015) (describing expedited removal process).

See
138-40

8

U.S.C.

(4th

Cir.

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.
F.3d at 138-39.

See 8 C.F.R. § 238.1(b)(2)(i); Etienne, 813
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 MorenoTapia’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

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In

June

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2014,

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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.
parties

entered

into

a

written

plea

agreement,

under

The
which

Moreno-Tapia pleaded guilty to the illegal reentry charge, and
the government agreed to dismissal of the charge for failure to
register.
After
returned

his
to

guilty

North

plea,

Carolina

Moreno-Tapia
court

and

in

filed

February
a

2015

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
apply

Court’s

2013

retroactively

decision
to

holding

defendants

8

that

like

Padilla

does

Moreno-Tapia,

not

whose

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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

U.S.C.

§ 1326(d)

on

unconstitutional

and

subject
the

to

collateral

ground

since-vacated

that

attack
it

convictions.

under

rested

8
on

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
reentry

was

under

not

dispositive;

§ 1326,

the

to

make

government

a

need

case
not

of

illegal

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
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was based on a facially valid conviction at the time of the
deportation[.]”).
Nor, the district court held, could Moreno-Tapia mount a
collateral
purported

attack

on

the

constitutional

2009

removal

deficiency

of

order
his

based

2007

on

the

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

convictions.

constitutional

Though

there

are

infirmity
cases

in

excusing

his
a

state

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.
Moreno-Tapia

had

identified

no

J.A. 170.

procedural

problems

And here,
with

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

his

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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

unfairness.

as

to

the

third

factor,

fundamental

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 MorenoTapia’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.
remained
convicted

J.A. 156.
in
of

effect,
illegal

If the removal order and plea agreement
that

is,

reentry,

then
and
11

Moreno-Tapia
the

charge

of

would

stand

failure

to

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register as a sex offender would be dismissed pursuant to the
plea agreement.
deportation

Id.

order

(“If I deny the motion to vacate the

.

.

.

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

convictions

as

Moreno-Tapia’s
Guidelines,

on

court
the

used
basis

offense
the

the
for

level

ground

vacated
a

twelve-level

under

that

indecent

§ 2L1.2

of

Moreno-Tapia

liberties

enhancement
the

Sentencing

“previously

deported” after a conviction for a “crime of violence.”
Sentencing

Guidelines

Manual

Comm’n 2014) (amended 2016).

§ 2L1.2(b)(1)

to

(U.S.

was
U.S.

Sentencing

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

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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.
novo

a

collateral

§ 1326(d).
As

attack

on

a

removal

This court reviews de
order

under

8

U.S.C.

El Shami, 434 F.3d at 663.

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).
courts

have

held,

that

a

That principle is broad enough,

failure

to

exhaust

administrative

remedies or seek judicial review as required by § 1326(d) will
be

excused,

and

a

collateral
13

attack

permitted,

where

that

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failure

is

immigration

Filed: 01/26/2017

itself

the

product

proceeding.

See,

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of

a

e.g.,

procedural

flaw

in

the

Sosa,

F.3d

at

137

387

(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

exhaustion

government

requirements

are

concession

excused

by

that

failure

§ 1326(d)
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

because

they

of

any
were

intrinsic
predicated

convictions.
14

procedural
on

irregularity,

unconstitutional

but
state

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As

the

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district

court

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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
immigration

unconstitutional
officials

must

[conviction.]”).
satisfy

certain

And
due

while
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
15

due

process

might

in

some

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circumstances

Filed: 01/26/2017

demand

unconstitutional

that

an

conviction

Pg: 16 of 25

immigration

be

subject

order

to

based

collateral

on

an

attack.

That is because in this case, Moreno-Tapia’s argument is flawed
in

its

premise

–

that

his

constitutionally infirm.
three

years

before

state

convictions

in

fact

were

Moreno-Tapia pleaded guilty in 2007,

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

Padilla was decided.

to

convictions

that

were

final

before

And despite Moreno-Tapia’s efforts to re16

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characterize the state court decision as turning on something
other

than

order,

Padilla,

citing

it

Padilla

is

clear

and

no

that
other

the

MAR

case,

court’s

is

in

brief

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 MorenoTapia can base a collateral attack here.
Under § 1326(d), this crucial shortcoming in Moreno-Tapia’s
case

shows

up

requirement

for

removal

order

demonstrate
defendant

most
a
in

plainly

collateral
question

“fundamental

must

in

show

both

application

challenge
be

–

that

“fundamentally

unfairness”
that

of

his

under

“due

the

entry

third
of

the

unfair.”

To

§ 1326(d),

process

rights

a

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
17

gap

between

Moreno-Tapia’s

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challenge to his state criminal proceedings and the requirement
that

he

identify

deportation
assuming

a

procedural

proceeding,”

Moreno-Tapia

id.

could

“defect[]

(emphasis
satisfy

in

his

added).

the

first

underlying
But

prong

of

even
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.”
Shami, 434 F.3d at 665).

Id. at 462 (quoting El

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

offense

time

entry

of

of

removal
removal

classified
order

does

not

as

aggravated

prejudice

felony,

defendant

and

subsequent change in classification of offense does not permit
2

For 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.
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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

consequences of his guilty plea.
Collazo,
connected

it
to

likely

follows

Moreno-Tapia’s

potential

immigration

Under the reasoning of Lopez-

that

any

failure

immigration

of

due

proceedings

process

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
words,

that

could

have

led

There is no process, in other
to

a

finding

that

Moreno-Tapia’s

underlying state convictions were anything but constitutionally
3

We 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).
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valid, and as a result, Moreno-Tapia’s “case for ‘fundamental
unfairness’ collapses[.]”
Accordingly,
could

satisfy

we

See id. at 465.
not

consider

first

the

need

whether

two

requirements

of

Moreno-Tapia
§ 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 MorenoTapia’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)
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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”

§ 2L1.2(b)(1) (2014). 5

for

a

“crime

of

violence.”

U.S.S.G.

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 nowvacated state convictions do not receive criminal history
points, and the district court did not apply the alternative 16level enhancement.
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child

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–

Filed: 01/26/2017

qualifies

as

a

Pg: 22 of 25

“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.
Although

we

have

addressed

the

We disagree.

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,
whether

a

holding
prior

that

the

conviction

relevant
qualifies

time
for

for

determining

enhancement

under

§ 2L1.2 is the date of the defendant’s deportation and not the
date of a subsequent illegal reentry charge or sentencing.
id. at 258 (citing cases).

See

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:
22

The enhancement applies if

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defendant

deported

who

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illegally

reenters

“previously

was

. . . 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.”
F.3d at 4.

Luna-Diaz, 222

And second, when sentencing provisions are intended

to exclude subsequently vacated convictions from their scope,
they

generally

say

so

provisions,

see,

e.g.,

calculating

criminal

expressly
U.S.S.G.

history,

–

like

other

§ 4A1.2,

cmt.

“[s]entences

Guidelines
n.6

resulting

(in
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.
that

there

should

be

an

exception

to

the

Instead, he argues
general

rule

that

§ 2L1.2 reaches convictions valid at the time of deportation for
convictions

that

subsequently

are

grounds.

For support, he points to Luna-Diaz, which leaves
23

vacated

on

constitutional

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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.”
F.3d at 6 n.5.

222

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

exception was not implicated on the facts of that case.

such

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
obtained.
Tapia

state

were

not

unconstitutionally

Nor, as the district court emphasized, has Moreno-

contended

indecent

convictions

that

liberties

he

is

actually

charges.

innocent

Accordingly,

of

the

state

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).
circumstances,

the

district

court

correctly

Under these

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