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Gomez v. United States

United States District Court, W.D. Texas, El Paso Division

August 20, 2019

IRMA GOMEZ, Petitioner,
v.
UNITED STATES OF AMERICA Respondent.

          MEMORANDUM OPINION AND ORDER

          FRANK MONTALVO, UNITED STATES DISTRICT JUDGE.

         Irma Gomez asks the Court to vacate her conviction in cause number EP-18-CR-132-FM-1 through a petition for a writ of error coram nobis under 28 U.S.C. § 1651(a). For the reasons discussed below, the Court will deny the petition.

         BACKGROUND AND PROCEDURAL HISTORY

         Gomez, who was not a United States citizen, was indicted for the felony offense of transporting aliens within the United States for the purpose of commercial advantage and private financial gain, in violation of 8 U.S.C. §§ 1324(a)(1)(A)(ii) and (a)(1)(B)(i). United States v. Gomez, EP-18-CR-132-FM-1, Indictment, ECF No. 21. She pleaded guilty, pursuant to a plea agreement, to a misdemeanor information charging her with aiding and abetting bringing an alien into the United States, in violation of 8 U.S.C. § 1324(a)(2)(A) and 18 U.S.C. § 2. She agreed to the following factual summary attached to the plea agreement:

On or about December 17, 2017, N.Y.M.C, now referred to as MAT WIT, entered the United States from Mexico 11.5 miles west of the Tornillo Port of Entry .... Border Patrol Agents (BPA)... observed a maroon/burgundy motor vehicle driving by the area. The motor vehicle had its lights turned off and the driver operating either a cellular phone or a GPS device. BPA then heard footsteps go towards the vehicle and a door slam shut on the same vehicle. The said vehicle then left the scene at a high rate of speed. BPA conducted a traffic stop of the said motor vehicle. The Defendant was the driver and operator of said motor vehicle. MAT WIT was a passenger in said motor vehicle. All occupants of the said motor vehicle were arrested. MAT WIT was determined to be an alien to the United States and a citizen and national of Honduras with no documentation or authorization to be in the United States. The Defendant gave a voluntary statement in which she stated that she received a call from "Octavio" at 5 PM that day asking her to pick up a female who was going to cross illegally. The Defendant agreed to pick up the undocumented alien. The Defendant admitted to going to the location and that the female entered her vehicle. Once MAT WIT entered the motor vehicle, the Defendant proceeded to drive off until she was stopped by BPA.

Id., Plea Agreement 11, ECF No. 52. She also had the opportunity to review and consider the immigration consequences of her guilty plea in the plea agreement:

IMMIGRATION CONSEOUENCES OF CONVICTION
Pursuant to the provisions of Federal Rule of Criminal Procedure 1 l(b)(1)(0), the Defendant recognizes that, if convicted, a defendant who is not a United States citizen may be removed from the United States, denied citizenship, and denied admission to the United States. The Defendant recognizes that pleading guilty may affect the Defendant's immigration status if the Defendant is not a citizen of the United States. The Defendant recognizes that if the Defendant is a naturalized U.S. citizen, the Defendant's conviction could result in denaturalization. Under federal law, a broad range of criminal offenses warrant removal from the United States, the denial or cancellation of certain immigration benefits, and/or denaturalization, including the offense(s) to which the Defendant has agreed to plead guilty pursuant to this Plea Agreement. The Defendant's offense(s) of conviction presumptively require(s) the removal of a defendant who is not a U.S. Citizen. However, removal and other immigration or denaturalization consequences are the subject of a separate proceeding, and the Defendant understands that no one, including the Defendant's attorney or the District Court, can predict with certainty the effect of conviction on the Defendant's immigration or naturalization status. The Defendant nevertheless affirms that the Defendant wants to enter a plea of guilty, regardless of any immigration or naturalization consequences that may result from the guilty plea and even if those consequences include the Defendant's removal from the United States or denaturalization. The Defendant acknowledges having been closely assisted by counsel and advised by counsel about the potential immigration or naturalization consequences that may arise from a guilty plea in this case.

Id., at 2-3. She was sentenced to pay a $100 fine and a $25 assessment. Id., J. Crim. Case, ECF No. 60.

         Gomez filed a motion to vacate, set aside or correct her sentence under 28 U.S.C. § 2255. Id., Mot. to Vacate, ECF No. 65. She alleged her trial counsel provided constitutionally ineffective assistance by not properly investigating the immigration consequences of the offense:

Attorney Saldivar obviously was deficient in his performance (under the Sixth Amendment and the Strickland prong) by negotiating a guilty plea to a Misprision of a Felony [sic]. Put another way, if Attorney Saldivar had spent any time researching the immigration consequences of a guilty plea to a Misprision of a Felony [sic], vis-a-vis a[n] offense or even contacting an immigration attorney to gain such advice, he would have discovered that Ms. Gomez would have been much better served by pleading guilty to Count One of the Indictment than to plead guilty to an Information charging her with Misprision of a Felony [sic].

Id., Pet'r's Mem. in Supp. 10, ECF 65-1. She explained that because of this "error," she was placed in removal proceedings. Gomez asked the Court to vacate the conviction and sentence. Id., at 11.

         Respondent United States of America ("the Government") moved to dismiss. Id., Resp't's Mot. to Dismiss, ECF No. 68. The Government noted the Court did not sentence Gomez "to a term of imprisonment, supervised release, or probation." Id., at 3. Instead, it sentenced Gomez to pay a $100 fine and a $25 assessment. Id. According to 28 U.S.C. § 2255(a):

A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court ...

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