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Petition for Review Removal Order To Mexico, Plus Criminal Law Matters

By FindLaw Staff on August 20, 2010 | Last updated on March 21, 2019

US v. Smith, 09-1443, concerned a challenge to a conviction of defendant for conspiracy to distribute marijuana, money laundering, concealment of information from the Social Security Administration, and making false statements, and sentence of ninety-two months' imprisonment.  In vacating the conviction, the court remanded the matter as, given the district court's failure to meet the requirements of Rule 11(b)(1)(N) and the fundamental nature of the underlying right at issue, the plea agreement's appellate waiver does not preclude defendant from challenging on direct appeal the district court's alleged denial of his right to counsel of his choice.  Further, the defendant is entitled to have his guilty plea vacated as district court erroneously denied defendant his constitutional right to his choice of defense counsel, and under Gonzalez-Lopez, defendant is not required to prove that he was prejudiced by the violation.


US v. Padilla, 09-1896, concerned a challenge to the district court's imposition of an above-Guidelines sentence of 327 months' imprisonment in a prosecution of defendant for distributing cocaine.  In affirming, the court held that the district court's application of the statutory factors to the facts of defendant's case produced a sentence firmly anchored to the considerations required by section 3553(a).  The court also held that the district court was not required to follow section 4A1.3 as it need articulate its sentence only with reference to the section 3553(a) factors, and here, the district court extensively considered the section 3553(a) sentencing factors on remand.  Lastly, because the court conducted an intelligent and exhaustive analysis of the section 3553(a) factors, its decision to impose a consecutive sentence was reasonable.

Gutierrez-Berdin v. Holder, 09-1465, concerned a Mexican citizen's petition for review of a removal order.  In denying in part and dismissing in part, the court held that the IJ did not err in denying petitioner's motion to suppress Form I-213.  The court rejected petitioner's claim that the IJ demonstrated bias and irreverence of a degree sufficient to deprive him of due process guaranteed by the Fifth Amendment as without merit.  Also, because petitioner did not provide any evidence of legal status, the IJ appropriately found petitioner to be a removable alien.  Lastly, the BIA did not err in denying petitioner's motion to reopen and reconsider his case.

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