US v. Moreno-Tapia: In 2009, Moreno-Tapia was deported for North Carolina State convictions for indecent liberties with a child from 2007, when, he argues, neither his counsel nor the court advised him of the immigration consequences of a guilty plea. Moreno-Tapia re-entered the country without permission, and in 2014, he drew a federal charge for illegal re-entry. He argued that his underlying 2007 convictions were unconstitutional in light of Padilla, and in 2015, the State of North Carolina vacated his convictions. Nonetheless, Moreno-Tapia received a 12-level enhancement for the vacated convictions at sentencing for his illegal re-entry charge. He appealed.
The Fourth Circuit considered here what impact, if any, the alleged constitutional deficiency in Moreno-Tapia’s 2007 convictions has on the instant prosecution for illegal re-entry. The Fourth Circuit found that there was no effect, because Padilla does not apply retroactively to defendants like Moreno-Tapia, who were convicted before it was decided (in 2010).
The vacatur of the state convictions, according to the Fourth Circuit, was not dispositive. The government had only to show that Moreno-Tapia had, in fact, been previously removed. The illegal re-entry charge is based, not on the old vacated conviction, but on the deportation, and at the time he was deported, Moreno-Tapia had a valid conviction.
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