United States v. Gomez

An alien defendant's due process rights will be violated when undergoing a stipulated removal proceeding if the alien defendant’s waiver to their right of appeal is found to be invalid when that waiver is not voluntary, knowing and intelligent.

In 2011 Faustino Gomez entered a guilty plea, while reserving his right to appeal, for illegal reentry under 8 U.S.C. § 1326. Following a sentencing hearing in order to hear Gomez’s objections to a probation officers recommendations Gomez was sentenced to 22 months imprisonment with a 16 level enhancement for his prior deportation following a conviction for a crime in Arizona which the district court here considered to be “a crime of violence.” Gomez appealed his conviction and sentence asserting that his deportation in 2006 was invalid in that his right to due process and opportunity to seek voluntary departure was denied in the stipulated removal proceeding Gomez took part in, and that his prior conviction did not constitute a “crime of violence.” The Ninth Circuit held that Gomez’s Due Process rights were violated when he was presented with the opportunity for stipulated removal in 2006 that resulted in an invalid waiver of Gomez’s right to appeal and because the Immigration Judge incorrectly ruled that Gomez’s waiver was “voluntary, knowing, and intelligent” based on the facts surrounding Gomez’s waiver. However, the panel held that these errors were harmless because Gomez was not eligible for relief from removal. In addition, the panel went on to find that Gomez’s sentencing enhancement of 16 levels was improper because Gomez’s prior conviction was not “a crime of violence.” AFFIRMED in part and VACATED in part, and REMANDED.