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United States v. Bocanegra-Lupian

United States District Court, S.D. Texas, Houston Division

May 31, 2019

UNITED STATES OF AMERICA,
v.
JULIAN BOCANEGRA-LUPIAN,

          MEMORANDUM AND ORDER

         Before the Court is Defendant Julian Bocanegra-Lupian's Motion to Withdraw Guilty Plea (“Motion to Withdraw Plea” or “Motion”) [Doc. # 31]. The Government responded, [1] and Defendant replied.[2] The Motion is ripe for decision. Based on the parties' briefing, relevant matters of record, and pertinent legal authority, the Court grants Defendant's Motion.

         I. BACKGROUND

         On September 13, 2018, Defendant pleaded guilty to illegal reentry in violation of 8 U.S.C. § 1326.[3]

         On October 1, 2018, Assistant Federal Public Defender Aisha Dennis entered a notice of appearance in this case, replacing the previously assigned Assistant Federal Public Defender. On November 6, 2019, the Court granted Defendant's request to continue sentencing to give new counsel adequate time to review Defendant's file, research the issues in his case, and become personally prepared to represent him.[4]

         On May 13, 2019, Defendant requested leave to withdraw his guilty plea. Defendant contends that after his current counsel received and reviewed the Government's discovery responses, which included previously undisclosed removal proceeding recordings, counsel concluded that Defendant may have a meritorious defense to the illegal reentry charge. Specifically, Defendant contends his prior removal order was entered without subject matter jurisdiction because the relevant Notice to Appear (“NTA”) failed to specify a date, time, and place for the removal proceedings. Defendant submits that under federal statute, regulations, and the Supreme Court's recent decision in Pereira v. Sessions, NTAs must provide notice of the date and time of the removal proceedings to be valid and to vest jurisdiction in the immigration court. See Pereira v. Sessions, 138 S.Ct. 2105, 2110-14 (2018). Defendant further contends that the removal proceedings were fundamentally unfair and failed to comport with due process because his counsel during those proceedings failed to advise him of his right to seek protection under the Convention Against Torture (“CAT”) and because his guilty plea to the state crime which ultimately was the basis for his removal was predicated on erroneous legal advice that he would not lose his legal permanent resident (“LPR”) status.

         On the same day he filed his Motion to Withdraw Plea, Defendant filed a Motion to Dismiss Indictment (“Motion to Dismiss”) [Doc. # 32], raising the aforementioned collateral attacks to his prior removal order.

         II. LEGAL STANDARD

         “A defendant does not have an absolute right to withdraw his guilty plea.” United States v. Lord, 915 F.3d 1009, 1014 (5th Cir. 2019). The Court, however, has discretion to allow a defendant to withdraw his guilty plea before sentencing “if the defendant can show a fair and just reason for requesting the withdrawal.” Fed. R. Crim. P. 11(d)(2)(B). “The defendant bears the burden of establishing a fair and just reason for withdrawing his plea.” United States v. Powell, 354 F.3d 362, 370 (5th Cir. 2003). In deciding whether to allow a defendant to withdraw his guilty plea, district courts consider several factors:

(1) whether or not the defendant has asserted his innocence; (2) whether or not the government would suffer prejudice if the withdrawal motion were granted; (3) whether or not the defendant has delayed in filing his withdrawal motion; (4) whether or not the withdrawal would substantially inconvenience the court; (5) whether or not close assistance of counsel was available; (6) whether or not the original plea was knowing and voluntary; and (7) whether or not the withdrawal would waste judicial resources; and, as applicable, the reason why defenses advanced later were not proffered at the time of the original pleading, or the reasons why a defendant delayed in making his withdrawal motion.

United States v. Carr, 740 F.2d 339, 343-44 (5th Cir. 1984) (footnotes omitted). “The Carr factors are considered for the totality of the circumstances, and the district court is not required to make a finding as to each individual factor.” United States v. McKnight, 570 F.3d 641, 646 (5th Cir. 2009). The Carr factors “are nonexclusive.” United States v. Urias-Marrufo, 744 F.3d 361, 364 (5th Cir. 2014).

         III. DISCUSSION

         After reviewing the Carr factors and considering the totality of the circumstances, the Court concludes that Defendant's request to withdraw his guilty plea should be granted.

         A. Factor 1-Innocence

         This Carr factor weighs against granting Defendant's Motion. Defendant asserts he is legally innocent of illegal reentry because his prior removal order was issued without jurisdiction. Defendant does not deny that he was in fact deported or that he reentered the United States without permission. His argument is, instead, “an assertion of [his] legal innocence based on perceived potential defenses to the offense.” See Lord, 915 F.3d at 1014. A claim of legal innocence, realized after he entered his guilty plea, is not a basis to withdraw his ...


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