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United States v. Arce-Flores

United States District Court, W.D. Washington, Seattle

October 16, 2017





         Before the court is Defendant Monica Arce-Flores's motion for a writ of error coram nobis. (Mot. (Dkt. # 317).) The United States of America (“the Government”) opposes Ms. Arce-Flores's motion. (Resp. (Dkt. # 319).) The court has considered the motion, the parties' filings in support of and in opposition to the motion, the relevant // portions of the record, and the applicable law. Being fully advised, [1] the court CONCLUDES that pursuant to Federal Rule of Criminal Procedure 37, Ms. Arce-Flores's motion raises a substantial issue for the reasons set forth below.


         This case was originally filed on December 3, 2015. (See Indictment (Dkt. # 1).) Ms. Arce-Flores, along with three co-defendants, was charged with one count of conspiracy to violate 8 U.S.C. § 1324, one count of forced labor and attempted forced labor, and one count of human trafficking. (See id.; Superseding Indictment (Dkt. # 147).) At the time of her arrest, Ms. Arce-Flores was illegally in the United States. (See Mot. at 3.) After negotiations with the Government and on advice of her counsel, on December 1, 2016, Ms. Arce-Flores accepted a plea agreement and pled guilty to the misdemeanor of improper entry by an alien under 8 U.S.C. § 1325(a)(1). (12/1/16 Min. Entry (Dkt. # 242); Plea Agreement (Dkt. # 244)); 8 U.S.C. § 1325(a)(1) (“Any alien who [] enters or attempts to enter the United States at any time or place other than as designated by immigration officers . . . shall, for the first commission of any such offense, be fined under title 18 or imprisoned not more than 6 months, or both . . . .”). On December 2, 2016, the court imposed a sentence of “time served.” (Arce-Flores Judg. (Dkt. # 246) at 2.) Ms. Arce-Flores's guilty plea and sentencing underlie the instant motion.

         A. Plea Negotiations and Hearing

         Before pleading guilty to the misdemeanor charge, the Government offered Ms. Arce-Flores the opportunity to plead to a felony charge of harboring an illegal alien with a recommendation of credit for time served. (Engelhard Decl. (Dkt. # 317-1) ¶ 3.) Ms. Arce-Flores rejected this plea agreement because she wanted to contest her removal from the United States, and her counsel, Scott Engelhard, advised her that a felony charge would prevent her from doing so. (Id.) Mr. Engelhard believed that as long as Ms. Arce-Flores pleaded guilty to a crime for which the maximum sentence was less than 365 days, she would be eligible to contest her removal. (Id. ¶¶ 5-7; see also Arce-Flores Decl. (Dkt. # 317-3) ¶ 5.) Thus, Mr. Engelhard told the Government that Ms. Arce-Flores “would probably plead guilty to the misdemeanor of illegal entry under 8 U.S.C. § 1325(a)(1) which has a maximum term of imprisonment of ‘not more than 6 months.'” (Engelhard Decl. ¶ 4.) Mr. Engelhard attests that he “made this counter-offer based upon [his] belief that a plea to this misdemeanor offense would not have substantially adverse consequences to Ms. Arce-Flores['s] effort to fight deportation/removal.” (Id.; see also Arce-Flores Decl. ¶ 5.) The Government agreed to this arrangement and on November 30, 2016, filed a superseding information charging Ms. Arce-Flores with illegal entry. (Superseding Information (Dkt. # 240) at 1.) Based on Mr. Engelhard's advice that she “would have a good chance of being able to stay in this country even if [she] pled guilty and that [she] would still have a good chance of fighting deportation or removal in immigration court, ” Ms. Arce-Flores agreed to plead guilty. (Arce-Flores Decl. ¶ 5; see also Id. ¶ 7 (“Had I known that a conviction to the misdemeanor of illegally entering the United States with a six[-]month sentence would prevent me from fighting deportation, I would not have pled guilty and would have insisted on some deal with the prosecutor to a sentence of 179 days.”).)

         At the December 1, 2016, plea hearing, the Honorable Chief Judge Ricardo S. Martinez informed Ms. Arce-Flores during the plea colloquy that accepting the plea may have adverse immigration consequences. (Plea Hearing (Dkt. # 317-4) at 10:2-23, 12:17-20.) Specifically, he discussed Paragraph 6 of the plea agreement (id. at 10:2-22), which stated:

Defendant recognizes that pleading guilty may have consequences with respect to her immigration status because she is not a citizen of the United States. Under federal law, a broad range of crimes are grounds for removal, including the offense to which Defendant is pleading guilty, and some offenses make removal from the United States presumptively mandatory. Removal and other immigration consequences are the subject of a separate proceeding, however, and Defendant understands that no one, including her attorney or the district court, can predict to a certainty the effect of her conviction on her immigration status. Defendant nevertheless affirms that she wants to plead guilty regardless of any immigration consequences that her guilty plea may entail, even if the consequence is her mandatory removal from the United States.

(Plea Agreement (Dkt. # 244) ¶ 6.) Ms. Arce-Flores confirmed that she understood this paragraph of the plea agreement. (Plea Hearing at 10:22-23.) Chief Judge Martinez also confirmed Ms. Arce-Flores's understanding that she would not “be able to withdraw from the plea of guilty solely because” she did not “like the sentence imposed by the court.” (Id. at 12:17-20.) After the colloquy, Ms. Arce-Flores pleaded guilty to illegal entry. (Id. at 18:12-17.)

         B. Sentencing and Subsequent Clarification

         The next day, the undersigned judge sentenced Ms. Arce-Flores. (12/2/16 Min. Entry (Dkt. # 245); see also Sentencing Tr. (Dkt. # 317-5).) The Government recommended a sentence of time served (Sentencing Tr. at 4:24-5:1), while Mr. Engelhard asked the court to impose “zero sentence, zero imprisonment, zero fine, zero probation” (id. at 10:22-25). The court noted that the crime to which Ms. Arce-Flores pleaded guilty-illegal entry-was “not a terribly serious one” (id. at 13:12-13) but concluded that it could not “nullify” the statute by imposing no sentence (id. at 14:1-5). Accordingly, the court imposed a sentence of time served with no probation or supervised release. (Id. at 14:22-24, 15:9-11.) Mr. Engelhard did not object to the sentence at the hearing. (See generally id.)

         After the court sentenced Ms. Arce-Flores, she was transferred to the Northwest Detention Center in Tacoma, Washington, to await immigration proceedings unrelated to her conviction. (See Bond Order (Dkt. # 317-6).) On March 8, 2017, the immigration court denied Ms. Arce-Flores's bond request in part because she had served at least 180 days for a criminal offense, which in turn meant that she may be ineligible for cancellation of removal. (Id.) Specifically, Immigration Judge John C. Odell noted that Ms. Arce-Flores had applied for cancellation of removal, but “does not appear eligible for that form of relief because she served more than 180 [days] in prison for a criminal offen[s]e in the United States between December 2015 and December 2016.” (Id. at 5.) Because she was first arrested on December 7, 2015, and remained in custody until her December 2, 2016, sentencing, Immigration Judge Odell concluded that Ms. Arce-Flores's “‘time served' sentence was for almost one year in prison.” (Id.)

         Based on Immigration Judge Odell's observation, Ms. Arce-Flores moved to clarify the court's sentence. (Mot. to Clarify (Dkt. # 303) at 1.) The motion stated that the court's “decision may have a substantial impact upon an immigration removal hearing for Ms. Arce-Flores” (id.) because “[i]t appears that the Immigration Court assumed that the ‘credit for time served' sentence meant that Ms. Arce-Flores served at least 180 days as a result of conviction” for the illegal entry charge (id. at 3 (emphasis omitted)). Ms. Arce-Flores contended that the immigration judge's “assumption” was “incorrect” because she “did not serve any time in custody as a result of the misdemeanor offense at issue.” (Id.) Ms. Arce-Flores further explained that cancellation of removal-which she seeks-requires a finding of good moral character, which a person cannot show if she has been “confined, as a result of conviction, to a penal institution for an aggregate period of one hundred eighty days or more.” (Id. at 2 (quoting 8 U.S.C. § 1101(f)(7).)

         In a subsequent order, the court clarified that it “intended to sentence Ms. Arce-Flores to six (6) months” for the illegal entry offense. (4/7/17 Order (Dkt. # 304) at 2.) Despite Ms. Arce-Flores's suggestion that “she should receive a shorter sentence because she pled to an immigration offense, was a first time offender, and has family legally in the United States, ” the court stated that “the most lenient sentence it could impose, reflecting the factors contained in 18 U.S.C. § 3553(a), was six (6) months.” (Id. at 2-3.) After the court's clarification, Ms. Arce-Flores appealed to the Ninth Circuit (Not. of Appeal (Dkt. # 309)), and that appeal is currently pending (Time Sched. Order (Dkt. # 310) at 2).

         C. The Instant Motion

         Ms. Arce-Flores now moves for a writ of error coram nobis. (See Mot.) Specifically, she argues that Mr. Engelhard provided ineffective assistance of counsel because he failed “to understand the immigration consequences of the imposition of a six[-]month sentence in this case”; assured her “that there would not be adverse immigration consequences from a conviction and six[-]month sentence”; and failed to request that the court at sentencing and upon consideration of the motion to clarify “impose a sentence of 179 days of actual incarceration.” (Id. at 1-2.) To remedy the alleged ineffective assistance of counsel, Ms. Arce-Flores asks the court to (1) vacate the judgment and withdraw the guilty plea, (2) reduce her sentence to 179 days, or (3) vacate the judgment and hold a new sentencing hearing. (Id. at 2.) The Government opposes the motion. (See Resp.)

         Ms. Arce-Flores contends that her counsel failed to recognize that in order for her to qualify for cancellation of removal, she would have to demonstrate that she is a person of good moral character.[2] (See Mot. at 5); 8 U.S.C. § 1229b(b)(1)(B) (“The Attorney General may cancel removal of, and adjust to the status of an alien lawfully admitted for permanent residence, an alien who is inadmissible or deportable from the United States if the alien . . . has been a person of good moral character during such period . . . .”). Her counsel also failed to recognize that, as a categorical matter, a person cannot make that showing if she has been confined to a penal institution for 180 or more days as a result of her conviction. (Mot. at 5); 8 U.S.C. § 1101(f)(7) (“No person shall be regarded as, or found to be, a person of good moral character who . . . is, or was . . . one who during such period has been confined, as a result of a conviction, to a penal institution for an aggregate period of one hundred and eighty days or more . . . .”). Because of her counsel's misunderstanding and erroneous advice that a sentence of less than a year would not have immigration consequences, Ms. Arce-Flores contends that she did not further negotiate the plea arrangement and instead pleaded guilty. (Mot. at 5; see also Arce-Flores Decl. ¶ 5.) She states that she would not have pleaded guilty to the misdemeanor charge for which she could be sentenced to 180 days of confinement had she known of the adverse immigration consequences the plea entailed. (Arce-Flores Decl. ¶¶ 7, 9.)

         In addition, Mr. Engelhard attests that if he had understood the impact of the 180-day sentence on Ms. Arce-Flores's attempt to cancel removal, “he would have highlighted this for his client and he would have recommended that she reject the plea offer.” (Mot. at 6; Engelhard Decl. ¶ 7.) He further states that he would have urged the Government to recommend a sentence of no more than 179 days. (Engelhard Decl. ¶ 7.)

         The court now addresses Ms. Arce-Flores's motion.

         III. ANALYSIS

         The court first addresses the procedural posture of this motion, then analyzes ...

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