United States v. Gonzalez

Opinion

USCA1 Opinion

                 United States Court of Appeals

                     For the First Circuit


No. 99-1179



                          UNITED STATES,



                            Appellee,



                                v.



                        GERALDO GONZALEZ,



                      Defendant, Appellant.


APPEAL FROM THE UNITED STATES DISTRICT COURT



                FOR THE DISTRICT OF NEW HAMPSHIRE



       [Hon. Joseph A. DiClerico, Jr., U.S. District Judge]


Before



                      Stahl, Circuit Judge,

                 Bownes, Senior Circuit Judge,

                   and Lipez, Circuit Judge.


Kern Cleven for appellant.

     Arnold H. Huftalen, Assistant United States Attorney, with

whom Paul M. Gagnon, United States Attorney, was on brief for

appellee.


January 24, 2000


STAHL, Circuit Judge.  Defendant-appellant Geraldo

Gonzalez appeals from the district court's refusal to allow him to

withdraw his plea before sentencing, and its failure to conduct an

evidentiary hearing on the motion seeking such withdrawal.  We

affirm.

                               I.

                           Background

  On April 10, 1997, Gonzalez, a national of Cuba who has

resided in the United States since 1980, was indicted on three

separate charges.  Attorney Phillip Desfosses was appointed to

represent him.  On August 4, 1997, represented by Desfosses's

partner Harry Starbranch, Gonzalez pleaded guilty to two charges:

mail fraud, in violation of 18 U.S.C.  1341 (1994), and the use of

an unauthorized access device to obtain property exceeding $1,000

in value, as proscribed by 18 U.S.C.  1029(a)(2) (1994).  During

his plea colloquy, Gonzalez admitted that the losses resulting from

his crimes in fact exceeded $10,000.

  Gonzalez successfully moved to continue sentencing on

November 10, 1997, and on December 25, 1997, he requested

substitute counsel.  On December 30, 1997, Desfosses moved to

withdraw from the case.  In January, 1998, the court granted

Desfosses's motion and appointed attorney Sven Wiberg to represent

Gonzalez.

  On September 4, 1998, following several more continuances

which further postponed sentencing, Gonzalez moved to withdraw his

plea pursuant to Federal Rule of Criminal Procedure 32(e) ("Rule

32(e)").  Gonzalez's Rule 32(e) motion averred that he had not been

informed of his guilty plea's "potential and/or likely adverse

immigration consequences" until after the plea was made.  The

motion included a letter from Desfosses confirming Gonzalez's

assertion.  Gonzalez argued that Desfosses's failure to advise him

of the immigration issue constituted ineffective assistance of

counsel and rendered his plea defective.  Gonzalez did not request,

and the court did not conduct, an evidentiary hearing on the Rule

32(e) motion. 

  On December 7, 1998, the court denied Gonzalez's motion. 

Gonzalez filed a "Motion to Reconsider Motion to Withdraw Plea,"

which was denied on January 4, 1999.  The next day, the court

sentenced Gonzalez to twenty-seven (27) months of imprisonment and

ordered him to pay $17,273.03 in restitution.

  In addition to his criminal punishment, Gonzalez's

conviction subjected him to potential immigration-related

consequences.  The Immigration and Nationality Act ("INA"), 8

U.S.C.  1101 et seq. (1994 & Supp. II 1996), enumerates various

"aggravated felonies" the commission of which will render an alien

deportable.  See id.  1101 (a)(43); id.  1227 (a)(2)(A)(iii). 

This list includes "an offense that . . . involves fraud or deceit

in which the loss to the victim or victims exceeds $10,000."  Id.

 1101(a)(43)(M).  Because Gonzalez's fraudulent activities caused

losses exceeding $10,000, he had committed an "aggravated felony"

under the INA, and had therefore become subject to deportation.

  The INA directs the Attorney General to "take into

custody any alien who . . . is deportable by reason of having

committed [among other things, any aggravated felony] . . . when

the alien is released."  Id.  1226(c)(1).  The Attorney General

may release such an alien only in narrowly limited circumstances

not here applicable.  This regime reflects amendments embodied in

the Illegal Immigration Reform and Immigrant Responsibility Act of

1996, Pub. L. No. 104-208, 110 Stat. 3009-546 ("IIRIRA").  As a

native of Cuba, which has no deportation agreement with the United

States, Gonzalez now faces the possibility of indefinite

administrative detention following his release from prison.

                              II.

                           Discussion

  Gonzalez advances several arguments in his attempt to

reverse the district court's refusal to grant his Rule 32(e)

motion.  He also challenges the court's failure to hold an

evidentiary hearing prior to ruling on the motion.  We address

these arguments in turn.

A.  Motion to Withdraw Plea

  The heart of Gonzalez's claim is that neither his

attorneys nor the district judge advised him that if he pleaded

guilty, he would be deemed "deportable" and subject to detention by

the INS.  He further complains that the district court failed to

warn him of the possibility of restitution.  Gonzalez contends that

these deficiencies entitled him to withdraw his plea.  We review

the trial court's refusal to grant a change of plea only for abuse

of discretion, see, e.g., United States v. Raineri, 42 F.3d 36, 41

(1st Cir. 1994); United States v. Austin, 948 F.2d 783, 787 (1st

Cir. 1991), and finding none, we affirm.  

  Rule 32(e) states that "[i]f a motion to withdraw a plea

of guilty . . . is made before sentence is imposed, the court may

permit the plea to be withdrawn if the defendant shows any fair and

just reason."   Fed. R. Crim. P. 32(e) (emphasis added).  A

defendant thus has no absolute right to withdraw a plea.  See

United States v. Muriel, 111 F.3d 975, 978 (1st Cir. 1997); United

States v. Isom, 85 F.3d 831, 834 (1st Cir. 1996).  A "fair and just

reason" is a necessary, but not sufficient, predicate to plea

withdrawal.  See United States v. Doyle, 981 F.2d 591, 594 (1st

Cir. 1992) ("A defendant may withdraw a guilty plea prior to

sentencing only upon a showing a fair and just reason for the

request."); see also Raineri, 42 F.3d at 41 (same).  

  Rule 32(e) motions must be considered in the general

context of Fed. R. Crim. P. 11 ("Rule 11"), which governs the entry

of all guilty pleas.  Rule 11(c) provides that:

    [b]efore accepting a plea of guilty . . . the

  court must address the defendant personally in

  open court and inform the defendant of, and

  determine that the defendant understands, . .

  . the nature of the charge to which the plea

  is offered, the mandatory minimum penalty

  provided by law, if any, and the maximum

  possible penalty provided by law, including

  the effect of any special parole or supervised

  release term, the fact that the court is

  required to consider any applicable sentencing

  guidelines but may depart from those

  guidelines under some circumstances, and, when

  applicable, that the court may also order the

  defendant to make restitution to any victim of

  the offense.



Fed. R. Crim. P. 11.  Yet Rule 11(h), labeled "Harmless Error,"

states that "[a]ny variance from the procedures required by [Rule

11] which does not affect substantial rights shall be disregarded."

  In evaluating Rule 32(e) motions, a court's central

concern is whether the plea was "voluntary, intelligent and

knowing, within the meaning of Rule 11."  United States v. Marrero-

Rivera, 124 F.3d 342, 347 (1st Cir. 1997); see also United States

v. Cotal-Crespo, 47 F.3d 1, 3 (1st Cir. 1995); United States v.

Allard, 926 F.2d 1237, 1243 (1st Cir. 1991).  In addition, the

district court must consider four factors: (1) the force of the

defendant's reason for the change of plea; (2) the timing of the

request; (3) whether or not the defendant asserts innocence in

connection with his plea withdrawal; and (4) whether a plea

agreement had been reached.  See Marrero-Rivera, 124 F.3d at 347;

Isom, 85 F.3d at 834; Cotal-Crespo, 47 F.3d at 4.  We address the

final three factors first and then turn to the reasons for

Gonzalez's requested plea withdrawal and whether those reasons

render his plea involuntary.

  The timing of Gonzalez's motion casts doubt on his

entitlement to a plea withdrawal.  "[A] long interval between the

plea and the request often weakens any claim that the plea was

entered in confusion or under false pretenses."  Doyle, 981 F.2d at

595; see also Isom, 85 F.3d at 838-39.  Of course, when a defendant

seeks to withdraw his plea based on knowledge that was obtained

after the plea, the relevant temporal gap is not the time between

the Rule 32(e) motion and the original plea, but the time between

his discovery of the new information and the filing of his motion. 

Here, this gap is extensive.  In the letter from Desfosses that

Gonzalez submitted with his Motion to Withdraw Plea, Desfosses

stated that "[i]t was not until the attorney-client relationship

between myself and Mr. Gonzalez had started to breakdown did he

inform me that the law had recently been changed regarding the

deportation of Cubans due to felony convictions."  Thus, Gonzalez

became aware of his plea's immigration consequences sometime before

the end of December, 1997, when Desfosses sought to remove himself

from further representation.  Yet, notwithstanding that acquired

knowledge, Gonzalez did not move to withdraw his plea until

September, 1998.  We have previously rejected plea withdrawal

motions in which the relevant gap was six months, see Doyle, 981

F.2d at 595, two months, see Isom, 85 F.3d at 839, three weeks, see

United States v. Keefe, 621 F.2d 17, 18 (1st Cir. 1980), and even

thirteen days, see United States v. Ramos, 810 F.2d 308, 313 (1st

Cir. 1987). 

  Gonzalez's consistent failure to assert his innocence

also weighs against the reversal of the district court's decision. 

"Courts look more hospitably on a motion to withdraw a guilty plea

when the motion is coupled with an assertion of innocence. . . .

[T]he absence of a claim of innocence weighs in favor of allowing

a guilty plea to stand."  Doyle, 981 F.2d at 596.  Gonzalez at no

time asserted his innocence.  Finally, Gonzalez does not dispute

that he signed a plea agreement, and that signed agreement casts

further doubt on his claims.

  We thus turn to the three purported bases of Gonzalez's

Motion to Withdraw Plea, and the question whether in light of these

claims, his plea was "knowing, intelligent and voluntary."

           1.     Ineffective Assistance of Counsel

  The principal argument that Gonzalez makes for his claim

that his plea was defective under Rules 11 is that his counsel

failed to advise him of the plea's immigration consequences before

it was offered.  Thus, Gonzalez claims, he was entitled to withdraw

his plea.  We disagree.

  In 1984, the Supreme Court established the now-familiar

standard for constitutionally ineffective assistance of counsel:

"First, the defendant must show that counsel's performance was

deficient. . . .  Second, the defendant must show that the

deficient performance prejudiced the defense."  Strickland v.

Washington, 466 U.S. 668, 687 (1984).  In the plea context, a

defendant must show "a reasonable probability that, but for

counsel's errors, he would not have pleaded guilty and would have

insisted on going to trial."  Hill v. Lockhart, 474 U.S. 52, 59

(1985); see also Isom, 85 F.3d at 837 (same); Knight v. United

States, 37 F.3d 769, 774 (1st Cir. 1994).

  Even if Gonzalez could demonstrate ineffective assistance

of counsel, he cannot show the necessary prejudice.  First, he had

previously been convicted of crimes in the state of New Hampshire

that exposed him to immigration consequences identical to those

resulting from his federal conviction.  On July 19, 1996, Gonzalez

was arrested in Nashua, New Hampshire, and charged with (1)

possession of marijuana with intent to sell and (2) conspiracy to

possess marijuana with intent to sell.  He was convicted on both

counts and on July 2, 1999, the New Hampshire Supreme Court upheld

his convictions.  Under the INA, those crimes, just like his

federal crimes, constitute aggravated felonies.  See 8 U.S.C.

 1101(a)(43) (defining term "aggravated felony" to include

"illicit trafficking in a controlled substance . . . including a

drug trafficking crime" and to apply to such activity "whether in

violation of Federal or State law").

  Even if we were to ignore his state court convictions,

and even if we were to assume -- despite a dearth of evidence on

the subject -- that Gonzalez would not have pleaded guilty had he

known of his plea's immigration consequences, we still would not

regard Desfosses's representation as constitutionally defective. 

Along with numerous other courts of appeals, we have held that

deportation is only a collateral concomitant to criminal

conviction.  See, e.g., United States v. Quin, 836 F.2d 654, 655

(1st Cir. 1988).  Counsel's failure to advise a defendant of a

collateral consequence is a legally insufficient ground for a plea

withdrawal.  See, e.g., id.; United States v. George, 869 F.2d 333,

337 (7th Cir. 1989) ("While the Sixth Amendment assures an accused

of effective assistance of counsel in 'criminal prosecutions,' this

assurance does not extend to collateral aspects of the

prosecution."); United States v. Cariola, 323 F.2d 180, 186 (3d

Cir. 1963) (finding "no basis for holding that the finality of a

conviction depends upon a contemporaneous realization by the

defendant of the collateral consequences of his plea"); United

States v. Parrino, 212 F.2d 919, 921-922 (2d Cir. 1954) (same).

  In Quin, the defendant had "waived jury and acceded to a

bench trial in ignorance of the deportation consequences of a

guilty finding due to the failure of his counsel to inform him

thereof; [defendant argued] that this constituted constitutionally

ineffective counsel, and that he [was thus] entitled to start

over."  Quin, 836 F.2d at 655.  We disagreed, noting that as a

"collateral consequence" of conviction, deportation was "legally

irrelevant, even as to an outright guilty plea."  Id.; see also

George, 869 F.2d at 337 ("A deportation proceeding is a civil

proceeding which may result from a criminal prosecution, but is not

a part of or enmeshed in the criminal proceeding.  It is collateral

to the criminal prosecution."); United States v. Yearwood, 863 F.2d

6, 7 (4th Cir. 1988) ("[A]n attorney's failure to advise a client

that deportation may result from a conviction does not constitute

ineffective assistance of counsel."); United States v. Campbell,

778 F.2d 764, 766-67 (11th Cir. 1985) (finding no attorney

obligation to inform client of plea's immigration consequences);

Sanchez v. United States, 572 F.2d 210, 211 (9th Cir. 1977) (same);

Parrino, 212 F.2d at 921, 923 (2d Cir. 1954) (holding that where

evidence was clear that defendant had asked counsel whether he

could be deported after pleading guilty, and counsel had

unequivocally, but erroneously, replied "no," counsel had not been

constitutionally ineffective and withdrawal of guilty plea was not

required).

  Although Gonzalez recognizes the doctrine of collateral

consequences, he contends that "those cases relying [on it] may not

have aged well."  This claim is grounded only in conclusory

assertions that, since IIRIRA's passage, "various routes of

judicial and administrative relief" that were once available to

deportable felons are foreclosed, and that now, his deportation --

or indefinite administrative detention -- is "to be expected

virtually by operation of law." 

  "[I]n a multi-panel circuit, newly constituted panels,

generally speaking, are bound by prior decisions on point."  Irving

v. United States, 49 F.3d 830, 833 (1st Cir. 1995) (quoting Metcalf

& Eddy, Inc. v. Puerto Rico Aqueduct and Sewer Auth., 991 F.2d 935,

939 n.3 (1st Cir. 1993)) (internal quotation marks omitted). 

Gonzalez implicitly invokes one of this rule's noted exceptions,

which "pertains to those relatively rare instances in which

authority that postdates the original decision, although not

directly controlling, nevertheless offers a sound reason for

believing that the former panel, in light of fresh developments,

would change its collective mind."  Williams v. Ashland Eng'g Co.,

45 F.3d 588, 592 (1st Cir. 1995).

  Gonzalez has failed to persuade us that our precedents

regarding the collateral nature of deportation require

revisitation.  Gonzalez appears to contend that the crimes for

which he was convicted were only recently reclassified as

"aggravated felonies," and that Quin, which predates IIRIRA, is

therefore inapplicable.  Moreover, he notes that under the amended

INA, the Attorney General is required to take him into custody

immediately upon his release from prison, and to place him into

automatic, indefinite, and unreviewable administrative detention. 

In light of this statutory regime, Gonzalez suggests, the

immigration consequences of his guilty plea can no longer be

considered merely collateral.  The first argument, while

descriptively sound, is irrelevant; the second is legally flawed.

  First, the decisions Gonzalez seeks to overturn nowhere

address, much less rely upon, the distinction between "aggravated

felonies" and other grounds for deportability.  Indeed, the term

"aggravated felony" was first introduced into immigration

jurisprudence in the Anti-Drug Abuse Act of 1988, Pub. L. No.

100-690,  7342, 102 Stat. 4181, 4469.  That act was passed in

November of 1988, after Quin, Parrino, Sanchez, and Campbell had

issued.  The collateral nature of deportation is not affected by

IIRIRA's expansion of the "aggravated felon" category, because the

immigration consequences of a plea are collateral irrespective of

the reason for which an alien is deemed deportable.

  Second, contrary to Gonzalez's claims, IIRIRA did not so

substantially alter the treatment of individuals in his situation

as to warrant reconsideration of whether deportation is still a

collateral consequence of conviction.  Even prior to IIRIRA's

passage, any alien who committed an aggravated felony was

considered deportable, see 8 U.S.C.  1251(a)(2)(A)(iii) (1995),

amended by 8 U.S.C.  1227 (Supp. II 1996), and the Attorney

General was directed to apprehend any such alien upon his or her

release from prison, see 8 U.S.C.  1252(a)(2)(A) (1995), amended

by 8 U.S.C.  1226 (Supp. II 1996).  Without minimizing the

significance of the IIRIRA, we note that it is only relevant to

this case insofar as it curtailed the Attorney General's discretion

to release such aliens.  Compare id.  1252(a)(2)(B) (1995),

amended by 8 U.S.C.  1226(c)(2) (Supp. II 1996) (allowing release

of any alien who "demonstrate[d] . . . that [he or she was] not a

threat to the community and [was] likely to appear before any

scheduled hearings") with 8 U.S.C.  1226(c)(2) (prohibiting

release of such aliens).

  Gonzalez argues that for aliens like him, who hail from

countries with which the United States has no deportation

agreement, this shift will result in detention that is permanent,

unreviewable, and automatic.  In fact, administrative detention by

the INS is neither permanent nor unreviewable, and the fact that

such detention might "be expected virtually by operation of law"

does not alter its status as a collateral consequence of

conviction.

  Although 8 U.S.C.  1226(c)(2) prohibits permanent

release of criminal aliens, regulations promulgated by the INS

authorize the temporary release -- pending ultimate removal -- of

any alien who is deportable on the basis, inter alia, of having

committed an aggravated felony.  See 8 C.F.R.  241.4.  Such

release, which may be narrowly circumscribed, is available (but

not required) "[i]f such an alien demonstrates by clear and

convincing evidence that the release would not pose a danger to the

community or a significant flight risk."  Id.  In addition, interim

procedures recently established by the INS provide for regular

review of each detained alien's circumstances, ensuring repeated

reevaluation of such aliens' eligibility for temporary release. 

See United States Department of Justice, INS, Memorandum from

Michael A. Pearson, Executive Associate Commissioner, Office of

Field Operations, Interim Changes and Instructions for Conduct of

Post-Order Custody Reviews (Aug. 6, 1999), reprinted in Chi Thon

Ngo v. Immigration and Naturalization Service, 192 F.3d 390, 399-

401 (3d Cir. 1999). Because Gonzalez cannot be deported to Cuba for

the foreseeable future, there is the possibility that he may

receive the benefit of the regulations notwithstanding the

statute's apparent blanket proscription.  Contrary to his claims,

then, his potential for indefinite detention would be neither

beyond review nor necessarily permanent.

  Second, federal courts -- including this one -- have

previously found various "automatic" consequences of conviction to

be merely "collateral."  See, e.g., Nunez-Cordero v. United States,

533 F.2d 723, 726 (1st Cir. 1976) ("We can readily imagine that a

court might be willing to grant leave to withdraw" when defendant

learned, post-plea, of "mandatory deportation" resulting from

conviction, "[b]ut we cannot say that a court must grant leave.");

United States v. Crowley, 529 F.2d 1066, 1072 (3d Cir. 1976)

(concluding that the automatic loss of a municipal job upon felony

conviction was a collateral consequence of a plea); Meaton v.

United States, 328 F.2d 379, 381 (5th Cir. 1964) (automatic loss of

rights to vote and to travel abroad upon felony conviction were

collateral consequences of a plea).  What renders the plea's

immigration effects "collateral" is not that they arise "virtually

by operation of law," but the fact that deportation is "not the

sentence of the court which accept[s] the plea but of another

agency over which the trial judge has no control and for which he

has no responsibility."  Fruchtman v. Kenton, 531 F.2d 946, 949

(9th Cir. 1976) (quoting Michel v. United States, 507 F.2d 461, 465

(2d Cir. 1974)); see also George, 869 F.2d at 337 (emphasizing that

deportation "may result from a criminal prosecution, but is not a

part of or enmeshed in the criminal proceeding"); Sanchez, 572 F.2d

at 211 (noting that the key inquiry is whether a consequence "is

controlled by an agency which operates beyond the direct authority

of the trial judge").  However "automatically" Gonzalez's

deportation -- or administrative detention -- might follow from his

conviction, it remains beyond the control and responsibility of the

district court in which that conviction was entered and it thus

remains a collateral consequence thereof.

  We therefore reject the argument that recent amendments

to the INA have so altered the relationship between conviction and

deportation that revisitation of our prior holdings on that

relationship is required.  These holdings bar any ineffective

assistance claims based on an attorney's failure to advise a client

of his plea's immigration consequences.  Gonzalez's ineffective

assistance argument thus fails to support his Rule 32(e) motion.

           2.     The District Court's Failure To Inform Gonzalez

         of His Plea's Immigration Consequences

  Gonzalez's second argument is that the district court's

failure to advise him of his plea's immigration consequences

deprived the plea of the requisite voluntariness.  This claim fails

for reasons akin to those that doomed his ineffective assistance of

counsel claim.

  We have previously identified "the defendant's knowledge

of the consequences of the guilty plea" as a core concern of Rule

11 which must be satisfied if a plea is to be upheld.  Isom, 85

F.3d at 835; see also Cotal-Crespo, 47 F.3d at 4.  But because

deportation is a collateral consequence of a guilty plea, district

courts are not obliged to grant plea withdrawal motions filed by

defendants who realize, post-plea, the immigration implications of

their conviction.  See, e.g., Nunez-Cordero, 533 F.2d at 726;

Durant v. United States, 410 F.2d 689, 692 (1st Cir. 1969); see

also Campbell, 778 F.2d at 767; United States v. Russell, 686 F.2d

35, 38 (D.C. Cir. 1982); Fruchtman, 531 F.2d at 949; Michel, 507

F.2d at 465.  Given the facts of Gonzalez's case, we see no more

reason to disturb our precedent in this context than we did above.

           3.     The District Court's Failure to Warn Gonzalez of

         Potential Restitution

  Gonzalez further asserts that his plea colloquy was

defective because he was never informed that he would have to pay

$17,273.03 in restitution to his victims.  This argument is

unavailing.  We have held that where a defendant who is not warned

of the potential for restitution is nevertheless ordered to pay

such restitution, but in an amount less than the total potential

criminal fine of which he was warned, the arguable error is

harmless.  See, e.g., Raineri, 43 F.3d at 42; United States v.

Padin Torres, 988 F.2d 280, 284 (1st Cir. 1993).  The district

judge and the plea agreement each warned Gonzalez that he was

subject to a fine of up to $250,000.  Although ordered to pay

restitution in the amount of $17,273.03, he was not subjected to

any fine.  Thus, his actual financial burden at sentencing was far

less than the potential penalty of which he was warned.  Even if

the court had erred by not informing him of the prospect of a

restitution order, such error was harmless and did not violate Rule

11.

B.  Evidentiary Hearing

  Gonzalez also protests the district court's failure to

hold an evidentiary hearing at which he could press his Motion to

Withdraw Plea -- an evidentiary hearing that we note Gonzalez never

requested.  It is axiomatic that a defendant is not entitled to an

evidentiary hearing on every motion he chooses to file.  See Isom,

85 F.3d at 838; United States v. Staula, 80 F.3d 596, 603 (1st Cir.

1996); United States v. Lilly, 983 F.2d 300, 310 (1st Cir. 1992). 

An evidentiary hearing on a Rule 32(e) motion is only required when

a defendant alleges facts which, if taken as true, would entitle

him to relief.  See United States v. Crooker, 729 F.2d 889, 890

(1st Cir. 1984); United States v. Fournier, 594 F.2d 276, 279 (1st

Cir. 1979).  Because we have held above that Gonzalez has failed to

allege any such facts, we find that the district court did not

abuse its discretion in denying his Motion to Withdraw Plea without

holding an evidentiary hearing.

                              III.

                           Conclusion

  For the foregoing reasons, the district court's decision

to deny Gonzalez's Motion to Withdraw Plea is affirmed.

  Affirmed.