United States v. Marco Bird

• Court: Court of Appeals for the Fourth Circuit
• Decided: April 18, 2023
• Docket: 22-6140
• Status: Unpublished

Opinion

USCA4 Appeal: 22-6140 Doc: 17 Filed: 04/18/2023 Pg: 1 of 3

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 22-6140

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

MARCO BIRD,

Defendant – Appellant.

Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Claude M. Hilton, Senior District Judge. (1:86−cr−00314−CMH−2)

Submitted: January 13, 2023 Decided: April 18, 2023

Before AGEE, HARRIS, and QUATTLEBAUM, Circuit Judges.

Affirmed by unpublished per curiam opinion.

ON BRIEF: Jonathan P. Sheldon, SHELDON & FLOOD, PLC, Fairfax, Virginia, for Appellant. Jessica D. Aber, United States Attorney, Richmond, Virginia, Jacqueline R. Bechara, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit. USCA4 Appeal: 22-6140 Doc: 17 Filed: 04/18/2023 Pg: 2 of 3

PER CURIAM:

Marco Bird appeals the district court’s order denying his petition for a writ of coram

nobis. 28 U.S.C. § 1651(a). Bird sought vacatur of his 1987 conviction for possession with

intent to distribute cocaine, in violation of 21 U.S.C. § 841(a)(1). He argued that his trial

counsel mistakenly and unreasonably believed he was a United States citizen and

misadvised him as to the immigration consequences of his plea bargain. And this mistake,

he argues, constituted ineffective assistance of counsel—a fundamental error warranting

coram nobis relief.

A petitioner seeking a writ of coram nobis must establish that (1) a more usual

remedy, such as habeas corpus, is unavailable, (2) he has a valid basis for not attacking his

conviction earlier, (3) the consequences of his conviction satisfy Article III’s case-or-

controversy requirement, and (4) the error that is the basis for relief is “of the most

fundamental character.” Bereano v. United States, 706 F.3d 568, 576 (4th Cir. 2013)

(quoting United States v. Akinsade, 686 F.3d 248, 252 (4th Cir. 2012)). The district court

determined that Bird failed to satisfy requirements (2) and (4)—namely, he did not show

that he had a valid basis for not attacking his conviction earlier, nor did he establish a

fundamental error in his conviction.

In assessing a district court’s order denying a petition for writ of coram nobis, we

review factual findings for clear error, questions of law de novo, and the court’s ultimate

decision to deny the writ for abuse of discretion. United States v. Lesane, 40 F.4th 191, 196

(4th Cir. 2022).

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We have reviewed the record and conclude that the district court did not err in

denying relief. Accordingly, we affirm the district court’s order. We dispense with oral

argument because the facts and legal contentions are adequately presented in the materials

before this court and argument would not aid the decisional process.

AFFIRMED