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United States v. Nuwintore

United States District Court, E.D. California

March 11, 2015

UNITED STATES OF AMERICA, Plaintiff/Respondent,
v.
RICHARD NUWINTORE, Defendant/Petitioner.

FINDINGS AND RECOMMENDATIONS

ALLISON CLAIRE, District Judge.

Petitioner Richard Nuwintore seeks coram nobis relief from his 2011 conviction for credit card fraud. ECF No. 140 (Amended Petition for Writ of Coram Nobis). Petitioner attacks his guilty plea on grounds it was induced by the ineffective assistance of trial counsel, who failed to competently advise petitioner regarding the immigration consequences of his plea. Id. The government has moved to dismiss the petition as barred by the plea agreement's waiver of collateral attack. ECF No. 143. Both matters came on for hearing on March 4, 2015. Brian A. Fogerty appeared on behalf of the United States, and Charles M. Bonneau, Jr., appeared on behalf of petitioner. For the reasons set forth below, the undersigned recommends that the motion to dismiss be granted.

I. FACTUAL AND PROCEDURAL BACKGROUND

A. Immigration Proceedings Prior To Petitioner's Prosecution[1]

Petitioner is a native and citizen of Burundi. His father, a former Burundian government official, became an outspoken critic of the government. Petitioner joined the youth faction of the opposition organization with which his father was affiliated, and became a high-ranking member. In 1991, petitioner's father was arrested by Burundian military personnel. He died in government custody. Although the family was told that he had died of natural causes, petitioner later learned that his father had been killed because he spoke out against government corruption.

Petitioner first came to the United States on a student visa in 1992. When he returned to Burundi in 1995, he was apprehended at the airport upon arrival, interrogated and beaten, and detained for twenty-seven days. The abuse continued throughout petitioner's detention.

On August 6, 1996, petitioner was granted asylum status in the United States. The immigration court found that petitioner had been politically persecuted and faced further persecution if he returned to Burundi. Petitioner became a lawful permanent resident ("LPR") in September 2000.

B. The Offense

On March 21, 2007, petitioner was charged in a criminal complaint with access device fraud. ECF No. 1. A two-count indictment was returned on April 5, 2007. ECF No. 9. The indictment alleged as follows:

COUNT ONE: [18 U.S.C. § 1029(a)(2) - Access Device Fraud]

The Grand Jury charges: THAT

RICHARD NUWINTORE, defendant herein, from approximately February, 2003, through approximately February, 2005, in the County of Sacramento, State and Eastern District of California, and elsewhere, knowingly and with the intent to defraud, did use one or more unauthorized access devises during a one-year period, and by such conduct obtained things of value aggregating $1, 000 or more during that period, such conduct having an effect on interstate commerce, all in violation of Title 18, United States Code, Section 1029(a)(2). COUNT TWO: [18 U.S.C. § 1029(a)(2) - Access Device Fraud]

The Grand Jury charges: THAT

RICHARD NUWINTORE, defendant herein, from approximately April, 2004, through approximately January, 2006, in the County of Sacramento, State and Eastern District of California, and elsewhere, knowingly and with the intent to defraud, did use one or more unauthorized access devises during a one-year period, and by such conduct obtained things of value aggregating $1, 000 or more during that period, such conduct having an effect on interstate commerce, all in violation of Title 18, United States Code, Section 1029(a)(2).

On December 9, 2010, five days before trial was set to begin, defendant changed his plea pursuant to a plea bargain. ECF No. 113.

C. The Change of Plea

1. The Plea Agreement

The written plea agreement specified that petitioner would plead guilty to Count One of the indictment, and the government would move to dismiss Count Two. The government agreed to recommend that petitioner be sentenced within the applicable guideline range for his offense as determined by the Probation Office. ECF No. 115 at 2-4.

a. Stipulated Factual Basis

The stipulated factual basis attached to the plea agreement reads in its entirety as follows:

From 2003 through 2007 the defendant used other people's credit cards without their authorization to purchase airline tickets for himself and others. The parties agree that the provable loss personally attributable to the defendant is $13, 301.11.
Documents from Southwest Airlines show $2, 386.00 in fraudulent credit card transactions linked to the defendant either because he was the passenger, the e-ticket for someone else was emailed to the defendant, or the e-ticket was for a person who had used Western Union to send money to the defendant. When the reservations were made, the defendant entered credit card billing addresses other than his own.
Documents from United Airlines show $10, 915.11 in fraudulent credit card transactions linked to the defendant either because he was the passenger, an e-ticket for someone else was emailed to the defendant, or the e-ticket was for a per-son who had used Western Union to send money to the defendant.
One ticket that the defendant purchased without authorization on someone else's credit card was the one that he used to fly on United Airlines from Sacramento, California to Reagan National Airport in Virginia. The flight was on February 18, 2005 and the ticket cost approximately $1, 029.80. The credit card used to purchase this ticket belonged to Sharon B. In purchasing the ticket, Nuwintore entered his own name as the passenger name, but the credit card and credit card billing address of Sharon B. The e-ticket was emailed to a Yahoo email account controlled by Nuwintore and opened in the Sacramento area within a week of the ticket purchase.
The conduct affected interstate commerce as some or all of these flights were interstate flights.

ECF No. 115 at 11.

b. Immigration Consequences

The plea agreement provided in relevant part as follows:

Impact of Plea on Defendant's Immigration Status: Defendant recognizes that pleading guilty may have consequences with respect to his immigration status if he is not a citizen of the United States. Under federal law, a broad range of crimes are removable offenses, including the offense to which the defendant is pleading guilty. Indeed, because defendant is pleading guilty to access device fraud with a loss over $10, 000, removal is presumptively mandatory. Removal and other immigration consequences are the subject of a separate proceeding, however, and defendant understands that no one, including his attorney or the district court, can predict to a certainty the effect of his conviction on his immigration status. Defendant nevertheless affirms that he wants to plead guilty regardless of any immigration consequences that his plea may entail, even if the consequence is his automatic removal from the United States.

ECF No. 115 at 9.

c. Waiver of Post-Conviction Review

The plea agreement provided in relevant part as follows:

Waiver of Appeal and Collateral Attack: The defendant understands that the law gives him a right to appeal his conviction and sentence. He agrees as part of his plea, however, to give up the right to appeal the conviction and the right to appeal any aspect of the sentence imposed in this case so long as his sentence is no longer than the statutory maximum for the offense to which he is pleading guilty. He specifically gives up his right to appeal any order of restitution the Court may impose.
Regardless of the sentence he receives, the defendant also gives up any right he may have to bring a post-appeal attack on his conviction or his sentence. He specifically agrees not to file a motion under 28 U.S.C. § ...

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