Castellon–gutierrez v. U.S.

754 F.Supp.2d 774

Christian CASTELLON–GUTIERREZ, Petitioner,

v.UNITED STATES of America, Respondent.

Civil No. WDQ–10–1711.Criminal No. WDQ–09–0282.

United States District Court, D. Maryland, Northern Division.

Dec. 6, 2010.

Michelle Engert, James Wyda, Office of the Federal Public Defender, Baltimore, MD, for Petitioner.James G. Warwick, Rod J. Rosenstein, Office of the United States Attorney, Baltimore, MD, for Respondent.

MEMORANDUM OPINION

WILLIAM D. QUARLES, JR., District Judge.

Pending is Christian Castellon–Gutierrez's motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. Also pending is the Government's motion to dismiss. A hearing was held on October 7, 2010. For the following reasons, Castellon–Gutierrez's motion will be denied, and the Government's motion will be granted.

I. Background

In February 2008, Castellon–Gutierrez and two other men robbed Marvin Flores at knifepoint. Pl.'s Mot. to Vacate, Ex. C at 2. When police stopped Castellon–Gutierrez, Flores's jacket was found on the ground beside him, and the knife was found on him. Id. At a show-up, Flores identified Castellon–Gutierrez as the man who held the knife during the robbery.

On July 22, 2008, Castellon–Gutierrez pled guilty to robbery with a dangerous weapon in the Circuit Court for Montgomery County. Id. at 1. He was represented by Esteban Gergely, Esquire. Id. Judge Eric M. Johnson imposed a five-year, suspended sentence, and Castellon–Gutierrez was deported. Id.

In April 2009, police found Castellon–Gutierrez in Baltimore, after he unlawfully reentered the country. ECF No. 1. On May 20, 2009, he was indicted for unlawful reentry in violation of 8 U.S.C. § 1326. ECF No. 1. On October 26, 2009 he pled guilty. ECF No. 14.

On February 25, 2010, Castellon–Gutierrez was sentenced to 46 months imprisonment. ECF No. 25. Unlawfully reentering or remaining in the United States has a base offense level 8. U.S.S.G. § 2L1.2. Castellon–Gutierrez's offense level was adjusted 16–levels upward because he had unlawfully reentered after a robbery conviction, a “crime of violence” under U.S.S.G. § 2L1.2(b)(1)(A); ¹ after a three-level reduction for acceptance of responsibility, his total offense level was 21.² During the sentencing hearing, Castellon–Gutierrez accepted responsibility for his role in the robbery. Govt's Mot. Dismiss, Ex. A at 35:8–9.

Before sentencing for his unlawful reentry, Castellon–Gutierrez filed a Petition for Writ of Error Coram Nobis in the Circuit Court for Montgomery County, to vacate the robbery conviction. Pl.'s Mot. to Vacate 2.³ On May 24, 2010, Judge Thomas L. Craven granted his petition, finding that the plea hearing “did not comport with due process and the requirements of Md. Rule 4–242(c),” and was invalid because he had not been advised of the elements of the charge. Id., Ex. C at 3–6. Judge Craven stated:

On the day of the plea, [Castellon–Gutierrez] was not advised by the Court or Mr. Gergely about the nature or elements of the crime charged; Mr. Gergely did not represent on the record that he had discussed the elements or nature of the charge with his client on a previous occasion, and the defendant did not represent that he had discussed the elements of the crimes charged with his attorney.Id. at 6.

He found that this violated Miller v. State, 185 Md.App. 293, 970 A.2d 332 (Md.Ct.Spec.App.2009), and declined to infer from the totality of circumstances that Castellon–Gutierrez “showed he understood the nature or ... elements of the crime charged, because [he] did not speak English, was a minor,” and he had done nothing to indicate his understanding of the elements. Id. at 6.⁴

The State's Attorney for Montgomery County appealed the vacatur to the Maryland Court of Special Appeals. Govt's Opp'n. Def.'s Mot. to Vacate 4. The appeal is pending.⁵

Castellon–Gutierrez filed his motion to vacate, set aside, or correct his unlawful reentry sentence on June 16, 2010. ECF No. 36. On September 8, 2010, the Government filed its motion to dismiss. ECF No. 42. On October 7, 2010, this Court held a hearing.

II. AnalysisA. Ripeness

The Government argues that Castellon–Gutierrez's motion to correct his sentence is not ripe for adjudication because the vacatur of his robbery conviction has been appealed. Govt's Opp'n Def.'s Mot. Vacate 1. The ripeness requirement “prevents judicial consideration of issues until [the] controversy is presented in a clear-cut and concrete form.” Miller v. Brown, 462 F.3d 312, 318–19 (4th Cir.2006)(internal quotation marks omitted). In evaluating ripeness, courts balance (1) “the fitness of the issues for judicial decision,” ⁶ and (2) “the hardship to the parties of withholding consideration.” ⁷ Franks v. Ross, 313 F.3d 184, 194 (4th Cir.2002)(internal citations omitted).

Castellon–Gutierrez's petition is ripe for judicial review. His claim is not “abstract;” his state robbery conviction has been vacated. See Nuvox Comm'cns, Inc. v. Sanford, 241 Fed.Appx. 126, 129 (4th Cir.2007)(ripeness prevents courts from “entangling themselves in abstract disagreements”). The Circuit Court's opinion and order vacating the robbery conviction provide this Court with a controversy in “clean-cut and concrete form.” Miller, 462 F.3d at 319.

Although the pending appeal favors withholding this Court's review, that consideration is outweighed by the hardship that dismissing the claim may cause the petitioner, who withdrew his Fourth Circuit direct appeal so this Court could decide his § 2255 motion.⁸ See Nuvox, 241 Fed.Appx. at 129; Cockerham v. Johns, 2010 WL 3743545, at *2–3 (E.D.N.C. Sept. 15, 2010) (delayed determination of inmate's habeas corpus petition would cause hardship because, by waiting, inmate could serve time not required if petition was successful).

B. Effect of Vacatur on Castellon–Gutierrez's Unlawful Reentry Sentence

Castellon–Gutierrez argues that vacatur of his state robbery conviction requires reduction of his unlawful reentry sentence because he “is no longer subject to enhanced sentencing for having a prior conviction for a ‘crime of violence’.” Pl.'s Mot. to Vacate 2. The Government contends that the vacatur should not alter Castellon–Gutierrez's unlawful reentry sentence. Govt's Mot. to Dismiss 9–13.

An alien may not reenter the United States after deportation, and any alien who reenters after a deportation “subsequent to a conviction for commission of an aggravated felony,” shall be “imprisoned not more than 20 years.” 8 U.S.C. §§ 1326(a) & (b). The sentencing guidelines provide a base offense level of 8 for unlawful reentry, and a 16 level enhancement “[i]f the defendant previously was deported ... after a conviction for a felony that is ... a crime of violence.” U.S.S.G. § 2L1.2(b)(1)(A).

The Fourth Circuit has not addressed whether a defendant, like Castellon–Gutierrez—who is convicted of a violent felony, deported, and then unlawfully reenters the country—may have his sentence reduced if the violent felony conviction is vacated.⁹ Other circuits have addressed this question and held that the plain language of the statute and sentencing guidelines generally preclude a reduced sentence.¹⁰

“[P]resent status of the ... felony conviction is irrelevant” because “[i]t is impossible to alter the historical fact that the defendant was convicted, and then deported.” United States v. Luna–Diaz, 222 F.3d 1, 4 (1st Cir.2000). Thus, vacatur of the felony conviction, after the defendant's unlawful reentry, usually is not a basis for reducing the reentry sentence. Id.¹¹ C. Due Process Concerns

Castellon–Gutierrez argues that vacatur of his robbery conviction is a basis for reducing his reentry sentence because his conviction was vacated for constitutional error. Pl.'s Opp'n Govt's Mot. to Dismiss 9–11. The Government argues that coram nobis relief was not granted on federal constitutional grounds. Govt's Mot. to Dismiss 5.

Because entry of a guilty plea “involves a waiver of many substantial constitutional rights,” Boykin v. Alabama, 395 U.S. 238, 243, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), federal due process requires that the plea be given voluntarily, knowingly, and intelligently, “with sufficient awareness of the relevant circumstances and likely consequences.” Brady v. United States, 397 U.S. 742, 748, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970). When a defendant pleads guilty without sufficient awareness of the charges, the plea is invalid. See Henderson v. Morgan, 426 U.S. 637, 645, 96 S.Ct. 2253, 49 L.Ed.2d 108 (1976).

The validity of a plea is determined by the totality of the circumstances surrounding it. United States v. Moussaoui, 591 F.3d 263, 278(4th Cir.2010). “Normally the record contains either an explanation of the charge by the trial judge” or “a representation by defense counsel that the nature of the offense has been explained to the accused.” Henderson, 426 U.S. at 647, 96 S.Ct. 2253. Absent that indication in the record, “it may be appropriate to presume that in most cases defense counsel routinely explain the nature of the offense in sufficient detail to give the accused notice of what he is being asked to admit.” Id. (presumption inappropriate when defendant has low mental capacity). As the Maryland Court of Special Appeals has recognized:

[A] reviewing court may be able to determine that a defendant gained ... an adequate understanding of the offense and notice of the nature of the charge [from] ... allegations in the indictment, ... the prosecution's summation at the plea submission hearing ... or [if] the relevant element of the offense is a self-explanatory legal term, so simple in meaning that a layperson can be expected to understand it.

Miller v. State, 185 Md.App. 293, 311–312, 970 A.2d 332 (Md.Ct.Spec.App.2009) ( quoting State v. Crowe, 168 S.W.3d 731, 750–51 (Tenn.2005)).

Miller did not apply the Henderson presumption, and read Bradshaw v. Stumpf, 545 U.S. 175, 125 S.Ct. 2398, 162 L.Ed.2d 143 (2005), ¹² as precluding the inference of ...