Second Circuit Grants Rehearing and Vacates Guilty Plea Following Supreme Court’s Decision in Rehaif v. United States
On November 13, 2019, the Second Circuit (Hall, Lynch, Gardephe) issued a decision in United States v. Balde, vacating the defendant’s guilty plea for unlawful possession of a firearm by an alien who is in the United States illegally or unlawfully, in violation of 18 U.S.C. §§ 922(g)(5)(A) and 924(a)(2). The panel initially upheld Balde’s conviction on appeal, but eight days after the Court’s original decision, the United States Supreme Court decided Rehaif v. United States, 139 S. Ct. 2191 (2019), holding that a conviction under the relevant statutes required the government to prove that the defendant knew that he or she was in the country illegally at the time he or she possessed the firearm. Prior to Rehaif, every Circuit to consider the question held that the defendant’s knowledge of this fact was not an element. The Second Circuit then granted Balde’s petition for rehearing and concluded that the district court had committed plain error in failing to ensure that Balde was apprised of this knowledge requirement before pleading guilty (even though the district court had no reason at the time to think it was an element of the crime) and because the record did not contain facts sufficient to support a conclusion that Balde was aware that he was in the country illegally.
Circuit Grants Cooperating Witness Writ of Coram Nobis Based on Failure of Trial Counsel to Accurately Advise of Immigration Consequences
In Doe v. Unites States, the Second Circuit (Katzmann, Kearse, and Chin) reversed the district court’s denial of Doe’s petition for a writ of coram nobis. In a partially redacted opinion (we do not even know the district from which this appeal emanated), the panel took the government to task for inconsistent legal positions and recognized the right of a defendant to make plea decisions with knowledge about the immigration consequences. Therefore, granted the Court granted this “extraordinary remedy.”
Circuit Determines that Attempted Robbery Under New York Law Constitutes a “Crime of Violence” Pursuant to 2014 Federal Sentencing Guidelines
In United States v. Pereira-Gomez, a panel of the Second Circuit (Cabranes, Carney, Caproni, D.J.) issued an opinion analyzing whether attempted robbery under New York law qualifies as a “crime of violence” for enhancement purposes under Section 2L1.2 of the November 2014 United States Sentencing Guidelines. Engaging in a meticulous exercise in statutory interpretation, the panel concluded that while the offense is not specifically enumerated in the Guidelines’ definition of “crime of violence,” it does fall within the residual “force clause” of the relevant Guidelines application note, thereby resulting in a substantial prior offense enhancement to the applicable sentencing range. This case demonstrates the difficulties that courts and litigators experience in interpreting sentencing enhancement provisions that are based on the categorical nature of a prior conviction.
Second Circuit Reverses Immigration Proceeding Based on Constitutional Violation, Criticizes Immigration Enforcement Based on Ethnic Generalizations As "Teeter[ing] On The Verge of The Ugly Abyss of Racism"
In the context of an appeal from a decision of the Board of Immigration appeals, Zuniga-Perez v. Sessions, the Second Circuit (Pooley, Wesley, Chin, C.JJ) ruled that a search conducted by law enforcement personnel violated the Fourth Amendment. The Court recognized that the petitioner “made a sufficient showing of an egregious constitutional violation” by law enforcement agents, and reversed the immigration judge’s decision to deny a suppression motion without a hearing. While this is not a criminal law decision, it raises some important criminal law issues, so we have decided to cover it.
Second Circuit Remands Ineffective Assistance Claim for Lawyer’s Failure to Apprise Naturalized U.S. Citizen of Denaturalization Risk Before Guilty Plea
In Rodriguez v. United States, the Second Circuit remanded the case to the district court to hear evidence on a defendant’s application to vacate her guilty plea, on the grounds that she would not have entered into the plea if her counsel had properly advised her as to its immigration consequences. The Circuit, in a summary order written by Judges Walker, Lynch, and Chin, concluded that there was a reasonable probability that, had she been properly advised, she may have chosen not to plead guilty and thus may have avoided the immigration consequences that later ensued. Accordingly, it remanded the case to the district court to develop an evidentiary record and make a finding on those issues. The order requiring a hearing on a defendant’s right to extraordinary relief represents a reminder to judges and prosecutors that the immigration consequences of a guilty plea are no less central to the plea allocution than the contemplated term of imprisonment. The decision follows the Supreme Court’s decision last term in Lee v. United States, 137 S. Ct. 1958, 1967 (2017). In Lee, the Court held that a defendant who would not have pleaded guilty but for counsel’s errors concerning the deportation consequences of his or her plea has demonstrated ineffective assistance.
Second Circuit Reminds Courts They Must Advise Defendants of the Immigration Consequences of Guilty Pleas
In United States v. Gonzales, 16-4318 (March 13, 2018), the Second Circuit (Sack, Parker, Carney) in a per curiam order vacated the conviction of a defendant who had pled guilty without being informed that he was likely to be deported at the end of his sentence. On June 23, 2015, Wilfredo Gonzales appeared before the Western District of New York (Geraci, C.J.) and pled guilty pursuant to a plea agreement to one count of conspiracy to manufacture, possess with intent to distribute, and distribute cocaine, and one count of possessing a firearm in furtherance of a drug trafficking offense. During the plea colloquy, the District Court failed to inform Gonzales, who was a lawful permanent resident, that he could be removed from the United States as a result of his conviction.