United States v. Vasquez

46 F. App'x 484

• Court: Court of Appeals for the Ninth Circuit
• Decided: September 17, 2002
• Docket: No. 01-50465; D.C. No. CR-93-00057-JSR
• Status: Published

Opinion

MEMORANDUM

**

Nancy Lisa Vasquez appeals the district court’s denial of her motion to expunge her criminal record and her petition for writ of error coram nobis, both challenging her 1993 conviction for possession of marijuana in violation of 21 U.S.C. § 844(a). We lack jurisdiction to review the district court’s November 13, 2000, order denying Vasquez’s motion to expunge because her notice of appeal, filed on November 30, 2001, was untimely. See Fed. R.App. P. 4. We have jurisdiction to review the district court’s denial of Vasquez’s petition for writ of error coram nobis pursuant to 28 U.S.C. § 1291, and we affirm.

Vasquez contends the district court erred in denying her petition for writ of error coram nobis because she had valid reasons for not attacking her sentence earlier. We review the district court’s dismissal of her petition for writ of error coram nobis on the basis of laches for abuse of discretion. Telink, Inc. v. United States, 24 F.3d 42, 47-48 (9th Cir.1994). To obtain coram nobis relief, Vasquez must show: “(1) a more usual remedy is not available; (2) valid reasons exist for not attacking the conviction earlier; (3) adverse consequences exist from the conviction sufficient to satisfy the case or controversy requirement of Article III; and (4) the error is of the most fundamental character.” See United States v. McClelland, 941 F.2d 999, 1002 (9th Cir. 1991). Upon our review of the record, we conclude that Vasquez’s approximately eight-year delay was unreasonable, and the government would be sufficiently prejudiced by the delay. See Telink, 24 F.3d at 48 (concluding that but-for the petitioner’s five-year delay, the government would have preserved its case, allowing reprosecution, if necessary, to occur earlier). The district court, therefore, properly denied Vasquez’s petition.

AFFIRMED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.