United States District Court, E.D. Wisconsin
STADTMUELLER. U.S. DISTRICT JUDGE.
January 26, 2012, the Defendant, Ruben Delhorno
(“Delhorno”), entered a plea of guilty as to a
single-count Indictment charging him with possession with
intent to deliver 500 grams or more of cocaine. See
(Docket #48 and #49). On October 5, 2012, he was sentenced to
60 months of imprisonment and four years of supervised
release for the offense of conviction. (Docket #59). Delhorno
did not appeal.
is a lawful permanent resident alien of the United States,
not a citizen, see (Docket #74-1), and is therefore
subject to deportation based on his conviction in this case
of an aggravated felony. See 8 U.S.C. §
1101(a)(43)(B) (The term “aggravated felony” is
defined to include “illicit trafficking in a controlled
substance.”); 8 U.S.C. § 1227 (“Any alien
who is convicted of an aggravated felony at any time after
admission is deportable.”). On or around May 1, 2017,
Delhorno completed his sentence and was immediately
transferred to the custody of U.S. Immigration and Customs
Enforcement (“ICE”) for removal processing.
See (Docket #74-1).
effort to avoid removal, Delhorno now seeks to have his
conviction overturned. On October 13, 2017, he filed in this
Court-his sentencing court-a petition for a writ of coram
nobis alleging that his counsel and the Court did not provide
adequate warnings prior to Delhorno entering his guilty plea
about the possible immigration consequences of his
conviction. (Docket #74). Delhorno claims that he
“never would have pled guilty to a crime knowing [he]
would never be allowed to remain in the United States and
instead would be deported to Mexico, a country [he] has no
ties to whatsoever.” (Docket #74-1 at 2). Delhorno
relies on recent precedent from the Supreme Court, Lee v.
United States, 137 S.Ct. 1958 (2017), for the
proposition that his counsel's and the Court's
deficient warnings warrant vacation of his conviction.
government responded to Delhorno's petition, stating that
it believes the transcripts from Delhorno's change of
plea and sentencing hearings leave doubt as to whether
Delhorno was adequately informed of the deportation risk
associated with his plea. (Docket #81).
reasons explained below, Delhorno's petition will be
petition is accompanied by an affidavit and a transcript of
the change of plea hearing in this case. (Docket #74, #74-1,
and #74-2). In considering Delhorno's petition, the Court
has also reviewed the transcript of the sentencing hearing,
see (Docket #80), and the presentence report,
see (Docket #51). From those materials, the Court
gleans the following facts.
February 23, 2011, a single-count indictment was filed in
this district charging Delhorno with possession with intent
to distribute cocaine. During plea negotiations, Delhorno
discussed “[his] entire case fully with [defense
counsel], including informing [defense counsel] that
[Delhorno] came to the United States when [he] was four years
old and that [he] was a lawful permanent resident alien and
not a U.S. citizen.” (Docket #74-1 at 1). According to
Delhorno, defense counsel did not inform him that “by
pleading guilty to the underlying offense of felony drug
possession and distribution, [Delhorno] was subject to
mandatory removal and/or deportation from the United States,
the only country [Delhorno has] ever known.”
Id. at 2.
January 9, 2012, the government and Delhorno entered into a
plea agreement. On January 26, 2012, the Court held a change
of plea hearing at which Delhorno entered, and the Court
accepted, Delhorno's guilty plea as to the indictment. At
that hearing, the Court inquired about Delhorno's
citizenship, and Delhorno informed the Court that he was born
in Mexico and is a permanent resident of the United States,
not a citizen. There was no discussion about the immigration
consequences of the offense to which Delhorno was pleading
the change of plea hearing, a United States Probation officer
prepared a presentence investigation report to assist the
Court at sentencing. The Probation officer's report notes
that Delhorno explained to him his status as a resident alien
and further explained that he “understands this may
present problems for him, but he is trying to make
arrangements to remain in the United States.” (Docket
#51 at 14). The report goes on to state that “[t]he
Bureau of Immigrations and Customs Enforcement confirmed Mr.
Delhorno was granted legal permanent resident status on
4/29/89. At this time, the defendant is not under
investigation for deportation, but upon entry of judgment,
the matter will be investigated.” Id.
October 5, 2012, the Court sentenced Delhorno. Defense
counsel spoke on Delhorno's behalf during hearing, at one
point informing the Court of Delhorno's attempts to
secure a “cooperator's visa to remain in the United
States because he is a resident alien and never sought
citizenship[.]” (Docket #80 at 10). The immigration
consequences of Delhorno's conviction were not otherwise
discussed at sentencing.
non-citizen of the United States, Delhorno was subject to
classification by the Federal Bureau of Prisons
(“BOP”) as a “deportable alien” when
he was taken into BOP custody. See BOP Program
Statement 5100.08, Inmate Security Designation and Custody
Classification, September 12, ...