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United States v. Delhorno

United States District Court, E.D. Wisconsin

March 30, 2018





         On 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.

         Delhorno 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).

         In an 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.

         The 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).

         For the reasons explained below, Delhorno's petition will be denied.


         Delhorno's 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.

         On 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.

         On 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 guilty.

         Following 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.

         On 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.

         As a 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, ...

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