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.
By the time of his sentencing nearly 18 months later, Gonzales had access to his Presentence Report (“PSR”). During sentencing, Gonzales addressed the court to raise concerns about the paragraph in the PSR regarding his possible removal, noting that his counsel “told me I don’t have to worry about that.” Although the District Court acknowledged that the plea agreement made no mention of deportation, it nonetheless proceeded to sentence Gonzales without any further discussion of possible immigration consequences, except to order that at the end of his term of incarceration Gonzales be delivered to immigration authorities to “determine his status in the United States.”
On appeal, the Second Circuit agreed with Gonzales’s argument that his plea must be vacated on the grounds that it was not knowing and voluntary because he was unaware of the serious potential immigration consequences of the convictions. The Court noted that Federal Rule of Criminal Procedure 11(b)(1)(O) requires that before a sentencing court accepts a guilty plea, it must advise a defendant who is not a citizen of the United States that he “may be removed from the United States, denied citizenship, and denied admission to the United States in the future.” The sentencing court plainly failed to do that and the Second Circuit requires “strict adherence” to Rule 11.
The Court also rejected the Government’s suggestion that this failure did not affect Gonzales’s “substantial rights,” noting that Gonzales has been in the United States since he was a child and his entire immediate family, including his two children, resides here. There was thus no reason to think the threat of deportation would not have been an important factor in Gonzales’s decision to accept a plea deal.
The Court’s opinion reflects its increasing frustration with the “recurring issue” of courts within the circuit failing to comply with the requirements of Rule 11. The Court added in a footnote: “Such failures are unacceptable. We see no legitimate excuse for noncompliance with Rule 11 absent special circumstances.” Indeed, Rule 11 sets forth in detail the court’s obligations at the time that it accepts a guilty plea. Previous Second Circuit panels have similarly admonished trial court judges for failing to comply with these obligations and for failing to ensure that defendants actually understand the consequences of their guilty pleas.
The Second Circuit also noted with disapproval that neither the prosecutor nor defense counsel raised the immigration consequences here, and that they too have an “obligation to make sure that the Rule is followed.” Both prosecutors and defense counsel should bear in mind the importance of ensuring that each of the specified matters in Rule 11 is discussed before a guilty plea is entered, as well as the consequences for defendants and the validity of a plea if the court fails to meet its obligations under Rule 11. While in some cases, the error will be evidently harmless (e.g., a defendant might not be told of the statutory maximum sentence but his actual sentence is far below this maximum), here the error left the defendant in a dangerous position, facing deportation after service of his criminal sentence. In the past, junior prosecutors in the Southern District of New York were given checklists for Rule 11 proceedings and were instructed to advise the court if some aspect of the guilty plea was omitted. If this practice has stopped, or if it is not uniformly followed within the six prosecutors’ offices within the Second Circuit, now might be a good time for these checklists to be revised and used in all plea proceedings.