Lozano v. United States

Background

Jimmy Lozano pleaded guilty in 2004 to Hobbs Act robbery under 18 U.S.C. § 1951 in the Southern District of New York. He was sentenced in November 2005 to 33 months in prison and was released in February 2006. Lozano later argued that his guilty plea was not knowing or voluntary because he did not understand that the conviction could lead to his removal from the United States.

Lozano said he and his lawyer believed he was a United States citizen when he pleaded guilty. He had received a United States passport in 2002 and again in 2013. The court found that his belief was reasonable, partly because the presentence report contained an incorrect entry date and because immigration authorities had previously been persuaded by his passport that he was a citizen.

In 2015, however, a presentence report in a separate Vermont criminal case explained that immigration officials questioned whether Lozano had acquired citizenship through his mother. Lozano filed the current request for a writ of error coram nobis—a procedure used to seek relief from an old criminal conviction when ordinary remedies are no longer available—in January 2017. The Court of Appeals sent the matter back for findings on two issues: whether Lozano had sound reasons for not seeking relief earlier and whether he would have refused to plead guilty and instead gone to trial if he had known about the possible removal consequences.

Evidentiary Hearing and Findings

The district court held an evidentiary hearing on September 26, 2019. Lozano was the only witness who testified. The court also considered documentary evidence and assessed his credibility.

On the first issue, the court found that Lozano could not reasonably have been expected to investigate his citizenship status before receiving the Vermont presentence report in November 2015. The court therefore found sound reasons for his delay and concluded that he was not dilatory in seeking relief. It determined that the 14-month period between receiving the report and filing the petition was not unreasonable under the circumstances.

On the second issue, the court found that Lozano had not shown a reasonable probability that he would have rejected the 2005 guilty plea and insisted on trial. By the time of his Vermont sentencing, he knew that immigration officials disputed his citizenship and that a conviction could lead to his removal. Rather than withdrawing his Vermont guilty plea, he asked the Vermont sentencing judge for leniency based on the possibility that he would be removed and would not see his daughter grow up.

The court did not treat the Vermont plea as conclusive proof of what Lozano would have done in 2005. It noted that the Vermont case involved different circumstances, including a more significant possible sentence and a plea entered ten years later. But the court found that Lozano’s statements about the Vermont case damaged his credibility. He initially stated that he did not learn of the citizenship dispute until after Vermont sentencing, even though the report and his sentencing request showed that he knew about it beforehand. At the hearing, he later acknowledged that he had not been truthful with the Vermont judge.

The court also found no record support for the claim that Lozano would have gone to trial in the robbery case. He had admitted the robbery, pleaded under a plea agreement, and received credit for accepting responsibility. The court found his assertion that he would have gone to trial to be unsupported and not credible.

Scope of the Ruling and Conclusion

The Government asked the court to find that relief would not eliminate all of Lozano’s immigration consequences because the Vermont conviction was also a basis for removal. The court declined to make that finding. It concluded that the Court of Appeals’ instructions were limited to the two preliminary questions about delay and what Lozano would have done if informed of the immigration consequences of the earlier plea.

The court’s stated conclusions were that Lozano had sound reasons for not seeking earlier relief and that he nevertheless would have pleaded guilty in the Southern District of New York case even if he had known that the conviction could lead to his removal. The opinion does not expressly state a separate disposition—such as granting or denying the coram nobis petition—in its conclusion.