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Appellate Waivers and Immigration Consequences

Published By Stephen Preziosi

U.S. v Ataya

884 F.3d 318

Sixth Circuit Court of Appeals

Decided on March 2, 2018

Issue:

Plea Agreements Must be Knowing and Voluntary

Whether an appeal waiver is valid when the defendant was not informed by the district court of restitution and immigration consequences such as denaturalization under Federal Rule of Criminal Procedure 11(b)(1)(J), (K), (L),  and (O), which requires the court to inform the defendant of immigration consequences before entering his plea agreement.

Holding:

Appeal Waiver Not Valid in Cases of Plain Error

The Sixth Circuit held that because the district court failed to comply with Fed. R. of Crim, P. 11(b)(1)(O) by informing the defendant of immigration consequences, Ataya’s plea was not knowing and voluntary, and therefore his appeal waiver is voided.

Facts:

Ataya pled guilty to conspiracy to commit healthcare and wire fraud. His plea agreement contained a waiver of appeal rights. At his plea hearing, the district court failed to address a number of considerations that are required under Fed. R. of Crim, P. 11(b)(1). First, the court did not inform Ataya that the plea agreement required him to pay $4,119,711.29 in restitution, and second, “neither the plea agreement nor the district court seems to have mentioned” that Ataya might face denaturalization as a result of the conviction. The lower court sentenced Ataya to 97 months’ imprisonment. He appealed on plain error, arguing that he had no notice from any source that his guilty plea might result in denaturalization and, had he known about the consequences under Rule 11, he would not have pled guilty.

Analysis:

Proving Plain Error

In an appeal under plain error, Ataya had the burden to prove that 1) there was an error or defect, some sort of deviation from a legal rule, 2) the legal error was clear or obvious and 3) the error affected the appellant’s substantial rights and the outcome of the district court proceedings.

The Federal Rule of Criminal Procedure 11(b)(1)(O) instructs the district court “to inform the defendant of, and determine that the defendant understands that, if convicted, a defendant who is not a United States citizen may be removed from the United States, denied citizenship, and denied admission to the United States in the future.” Because the lower court did not comply with this rule, Ataya met the first two prongs of plain error review.

The Government argued that Ataya could not meet the third step of the plain error review, that he did not demonstrate he would not have pled guilty but for the district court’s Rule 11 error. However, the Supreme Court has recognized that U.S. citizenship provides “priceless benefits,” and the consequences of denaturalization are “more serious than a taking of one’s property, or the imposition of a fine or penalty.” (Schneiderman v. U.S., 320 U.S. 118, 122, S.Ct. 1333, 87 L.Ed. 1796 (1943). Furthermore, the Supreme Court has repeatedly acknowledged that “preserving [an individual’s] right to remain in the United States may be more important to [that individual] than any potential jail sentence.” (Lee v. United States, U.S. 137, S.Ct. 1958, 1968, 198 L.Ed.2d 476 (2017).

In addition to the severe consequences of denaturalization in general, the Sixth Circuit found sufficient contemporaneous evidence in the record demonstrating a reasonable probability that Ataya in particular would not have pled guilty if he had notice of adverse immigration consequences. At his sentencing, Ataya articulated a strong aversion to his former homeland of Syria, and mentioned relatives who are now displaced due to ongoing civil war. Additionally, Ataya is the father of three children who reside in the U.S., and he is an active parent and the family’s breadwinner. Considering the serious consequences of denaturalization on Ataya and his family, Ataya showed there was a “reasonable probability” that he would not have entered the guilty plea had he known about the Rule 11 (b)(1)(O) implications; therefore he satisfied the third prong of the plain-error review.

The Sixth Circuit held that Ataya’s plea agreement was invalid due to plain error. Therefore the appeal waiver contained within it was unenforceable. The Court reversed the defendant’s conviction and remanded for further proceedings.

GOVERNMENT’S BREACH OF PLEA AGREEMENT VOIDS APPEAL WAIVER

Published By Stephen Preziosi

Plea agreements, Breach of Plea Agreement, Waiver of Right to Appeal

U.S. v. Gonzalez

309 F.3d 882

Fifth Circuit Court of Appeals

Decided on October 14, 2002

Issue:

Plea agreements and sentence enhancements

Whether a defendant’s appeal waiver is enforceable when the Government violated the terms of the plea agreement by using information provided by the defendant in a debriefing to obtain sentence enhancement, where the cooperation agreement pursuant to U.S.S.G. § 1B1.8(a) stated that “any statements made by the defendant in the course of his promised cooperation would not be used against him when determining the applicable guidelines range except as provided by U.S.S.G. § 1B1.8(b).”

Holding:

Appeal waiver not valid after breach of plea agreement

The Fifth Circuit held that the Government breached the plea agreement by using information provided by the defendant against him at sentencing absent any exceptions, therefore voiding the appeal waiver provision of his agreement. The Court vacated the conviction and remanded to district court before another judge.

Facts:

Francisco Gonzalez pled guilty to conspiracy to distribute more than 100 kilograms of marijuana acquired from Mexico and transported for sale in Texas.

Pursuant to his plea agreement, which contained a standard waiver of appeal provision, Gonzalez agreed to cooperate with the Government. In turn, the Government agreed that “pursuant to U.S.S.G. § 1B1.8(a), any statements made by Gonzalez would not be used against him when determining the applicable guidelines range, except as provided in U.S.S.G. § 1B1.8(b).”

A probation officer filed a pre-sentencing report (PSR) indicating that Gonzalez’s sentence should be enhanced by two levels under U.S.S.G. § 3B1.1(c) because he had a leadership role in the offense. If the role enhancement were not applied he would be eligible for a safety valve. Gonzalez filed, under seal, objections to the PSR claiming that he was not the leader, that individuals following behind in a Suburban were the leaders.

Prior to a debriefing session, Gonzalez’s counsel received a proffer letter that stated, “No statements that either you or Mr. Gonzalez make during these discussions can be used as evidence against him in any civil or criminal proceedings except the Government may use such statements for the purpose of cross-examination, impeachment and rebuttal should your client testify at any proceeding contrary to this proffer.”

At the sentencing hearing, prosecution disclosed the information Gonzalez had provided in the debriefing and the lower court determined that fact was “the ultimate admission against interest” because his exclusive knowledge of the Suburban showed “some type of planning or direction” and gave “credence to what everybody else was saying.”

The district court sentenced Gonzalez to 70 months’ imprisonment, assigning an enhancement for his leadership role. He filed a motion for reconsideration, which the district court denied.

Analysis:

Preponderance of Evidence Standard

In determining whether the Government violated the terms of the plea agreement, Gonzalez must prove that the underlying facts establish a breach by a preponderance of evidence. The Fifth Circuit Court of Appeals “must determine whether the government’s conduct is consistent with the parties’ reasonable understanding of the agreement” (US v Wilder, 15 F.3d 1292, 1301 (5th Cir.1994)). The Fifth Circuit held that, “a plain reading of the proffer letter indicates that the parties’ reasonable understanding” would prohibit the Government’s use of the information Gonzalez provided in his debriefing against him, absent any exceptions.

Breach of Plea Agreement Voids Appellate Waiver

Pursuant to U.S.S.G § 1B1.8(a), which states that, “Where a defendant agrees to cooperate with the government by providing information concerning unlawful activities of others, and as part of that cooperation agreement the government agrees that self-incriminating information provided pursuant to the agreement will not be used against the defendant, then such information shall not be used in determining the applicable guideline range, except to the extent provided in the agreement,” Gonzalez’s statements during the debriefing should only have been disclosed (1) if one of U.S.S.G. § 1B1.8(b) exceptions applied; or (2) for the purpose of cross-examination, impeachment, or rebuttal if Gonzalez testified contrary to the proffer at any proceeding.

U.S.S.G. § 1B1.8(b) reads:

(b) The provisions of subsection (a) shall not be applied to restrict the use of information:

  1. known to the government prior to entering into the cooperation agreement;
  2. concerning the existence of prior convictions and sentences in determining §4A1.1 (Criminal History Category) and § 4B1.1 (Career Offender);
  3. in a prosecution for perjury or giving a false statement
  4. in the even there is a breach of the cooperation agreement by the defendant; or
  5. in determining whether, to what extents downward departure from the guidelines is warranted pursuant to a government motion under § 5K1.1 (Substantial Assistance to Authorities)

The Government never argued that any exceptions listed in § 1B1.8(b) did apply, nor did it argue that it was using the information as allowed in the proffer letter. Rather, the Government asserted that the information concerning the Suburban had been disclosed earlier by Gonzalez in his objection to the PSR and was no longer privileged, and that according to U.S.S.G. 1B1.8, the information could be disclosed but not “used against” the defendant. According to case law, the Government was not allowed to use the information against Gonzalez unless it could prove that the information came from a wholly independent source (US v Taylor, 277 F.3d 726, 727 (5th Cir. 2001)). The Government’s disclosure that no one else but Gonzalez knew about the Suburban proves they did not obtain the information from an independent source and were therefore prohibited from using it against Gonzalez.

The Fifth Circuit holds that § 1B1.8 does not prohibit disclosure of information provided in a plea agreement at sentencing, but it does prohibit this information from being used to determine the applicable guideline range (US v Taylor, 277 F.3d at 724), as it was used in this case. The Fifth Circuit Court of Appeals held that the Government breached the plea agreement, and therefore vacated Gonzalez’s conviction and sentence and remanded the matter to the district court.

PLEA AGREEMENTS AND APPEAL WAIVERS: VOIDABLE OR ENFORCEABLE.

Published By Stephen Preziosi

U.S. v. Riggi

649 F.3d 143

Second Circuit Court of Appeals

Decided on Aug. 10, 2011

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Appeal Waivers in Plea Agreements

Issue:

Whether a waiver of the right to appeal in a plea agreement is enforceable when the sentencing court applied the 2008 Sentencing Guidelines and the conviction, a murder conspiracy, ended in 1989 where the 2008  Guidelines contain a significant enhancement, creating a Constitutional Ex Post Facto issue

Holding:

The Court held that waivers of the right to appeal are presumptively enforceable, even when the Ex Post Facto Clause is implicated, as the defendant knowingly waived his right to appeal in the plea agreement where he expressly agreed that the 2008 Guidelines would be used to calculate the offense level and that the plea agreement was binding even if the court used a different Guidelines range.  

Facts:

Defendant Philip Abramo pled guilty to conspiracy to commit murder, conspiracy to commit loansharking and receiving proceeds of extortion in a plea agreement that contained a broad appeal-waiver provision for any sentence eighteen years or less. Abramo was sentenced to 186 months’ imprisonment.

Though the charged murder conspiracy ended in 1989 upon the death of the targeted victim, the 2008 Sentencing Manual Guidelines were applied to determine Abramo’s sentence. He appealed, arguing the application of the 2008 Guidelines violated his ex post facto rights. He invoked contract principles, classifying the Guidelines stipulations as a mutual mistake of fact that rendered his appeal-waiver unenforceable.

Analysis:

General Principles of Appellate Waivers

Waivers of the right to appeal a sentence are presumptively enforceable.  The Second Circuit has repeatedly upheld the validity of appeal waivers if they are knowingly, voluntarily and competently provided by the defendant.  Plea agreements are construed according to contract law principles, but because the plea agreements are unique contracts, the application of ordinary contract principles are tempered with special due process concerns for fairness and the adequacy of procedural safeguards. 

Appellate Waivers: When Are They Voidable

Appeal waivers are voidable when a defendant’s fundamental rights are violated. The Court has voided appeal waivers where the sentence imposed was based on unconstitutional factors such as race (see Gomez-Perez, 215 F.3d at 319), naturalized status (see U.S. v. Jacobson, 15 F.3d 19, 23 (2d Cir.1994), or ability to pay restitution (see U.S. v. Johnson 347 F.3d 412, 415, 419 (2d Cir.2003). Additionally, The Court has voided waivers when a sentencing court “failed to enunciate any rationale for the defendant’s sentence” and thus abdicated its judicial responsibility (U.S. v. Woltmann, 610 F.3d 37, 39-40 (2d Cir.2010).

Appellate Waivers: When Are They Enforceable

The Court upholds the validity of appeal waivers if they are “knowingly, voluntarily, and competently provided by the defendant” (U.S. v. Gomez-Perez 215, F.3d 315, 318 (2d Cir. 2000), and maintains that “other meaningful errors” are insufficient to void a waiver. The Court has enforced appeal waivers where a sentence was arguably imposed contrary to a statutory requirement (see Yemitan 70 F.3d at 748). The Court determines that a defendant who enters a plea agreement “simultaneously waives several constitutional rights” (U.S. v. Waters, 23 F.3d 29, 36 (2d Cir.1994).

Decisive Considerations: Voidable versus Enforceable

The Second Circuit held that in determining whether a waiver of appellate rights will be voided or enforced the decisive considerations are the nature of the right at issue and whether the sentence was reached in a manner that the plea agreement did not anticipate.  Regarding the nature of the right, a defendant can waive fundamental constitutional and statutory rights.

Constitutional Concerns Regarding the Ex Post Facto Clause

In U.S. v. Rosa, (123 F.3d 94 (2d Cir.1997), the Court held that they will set aside the waiver and accept appeal when constitutional concerns are implicated. In Rosa, the parties did not stipulate to a sentence below which the defendant would not appeal, thus the agreement “may have subjected a defendant to a sentence vastly greater than he, or possibly even the Government, could have anticipated” (Id.) Notwithstanding the Rosa case’s “disturbing characteristics,” the Court enforced the appeal waiver.

In this case, however, Abramo’s plea agreement stipulated (1) that the 2008 Guidelines be used; (2) that the applicable Guidelines sentence was eighteen years’ and (3) that the agreement was binding even if the court used a different Guidelines range.

Ignorance of Existing Constitutional Rights as Grounds for Voidable Appeal Waiver

The Court has hinted that ignorance of existing rights may void a plea agreement and a waiver of appellate rights when a “defendant can establish that he was unaware of his Apprendi rights at the time he entered into his plea agreement” (U.S. v. Morgan 386 F.3d 376, 381 n. 3 (2d Cir.2004). Abramo claims the Guidelines error in this case rose from his ignorance of existing constitutional rights, but the Court determines that claim would be relevant only to a claim of ineffective-assistance regarding the advice Abramo received from counsel, as it was his lawyer’s obligation to inform the client of his constitutional rights. But Abramo is not raising an ineffective-assistance claim here.

Furthermore, the Court determines that even if Abramo was unaware of the ex post facto issue when he pled guilty, he was well aware of it by the time of sentencing and he made no motion to withdraw his plea and took no step to preserve the issue for appeal. The Court holds that the plea waiver is enforceable, and Abramo’s appeal is denied.

RICO Convictions in Puerto Rico Call First Circuit to Analyze Sufficiency Requirements

Published By Stephen Preziosi

US v. Rodriguez-Torres
939 F.3d 16
First Circuit Court of Appeals
Decided: September 18, 2019

Issue:

What is required to convict under RICO and what evidence is considered sufficient to meet those requirements?

Holding:

The First Circuit held that there was sufficient evidence to show defendants met the requirements under RICO. A RICO conviction requires:

  1. That an “enterprise” existed and that the group had:
    • a common purpose,
    • relationships within the enterprise, and
    • longevity
  2. That the organization affected foreign or interstate commerce;
  3. That the defendants had some role operating and managing the organization;
  4. That there was a pattern of racketeering; and
  5. That the defendants knowingly joined the conspiracy.

Facts:

A gang known as La Rompe ONU was one of the biggest street gangs in Puerto Rico. After the take-down, an astounding 105 defendants were charged with racketeering, drug trafficking, firearms offenses, and murder. It was alleged that La Rompe profited by selling drugs to a large number of public housing projects by using violence and threats to maintain power over its territory. Four convicted defendants appealed to the First Circuit and argued, among other things, that there was insufficient evidence to convict them under RICO.

Analysis:

The Racketeer Influenced and Corrupt Organizations Act (RICO) was enacted in 1970 to prosecute organized crime in the United States. 18 U.S.C. § 1962(c),(d) provides that anyone “employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of an enterprise’s affairs through a pattern of racketeering activity” or to conspire to do so. 

Enterprise Requirements Under RICO: Purpose, Relationships, and Longevity

Under RICO, an “enterprise” is defined as any group of individuals “associated-in-fact,” with the exception of legal entities. An association-in-fact is proved by evidence of an ongoing organization (formal or informal) and by evidence that its associates function as a continuing unit.

To determine whether an enterprise exists under RICO, the U.S. Supreme Court set out a three part test that asks whether the group has (1) a common purpose, (2) relationships among those associated with the enterprise, and (3) longevity sufficient to permit these associates to pursue the enterprise’s purpose. Boyle v. United States, 556 U.S. 938, 946, 129 S.Ct. 2237, 173 L.Ed.2d 1265 (2009).

The First Circuit held La Rompe met the “common purpose” requirement in determining whether the group made up an enterprise under RICO. According to the Court, there was sufficient evidence to show that La Rompe’s purpose was to profit by selling drugs at housing projects under their control by using violence. The group also shared the common purpose of expanding and strengthening its power.

In determining whether the group met the “relationships” requirement under RICO, the Court held there was more than sufficient evidence to show the group made up an enterprise. To start, the group’s naming their organization “La Rompe ONU”—where “ONU” stands for Organization of United Drug Traffickers, in English—showed they viewed themselves as a united group. Additional evidence cited by the Court pointed to the group’s loyalty to one another, pooling resources for the group’s common purpose, and joint criminal activity.

As for the longevity requirement, the Court held evidence showing La Rompe continued as a unit for eight years was more than enough to check off the final enterprise factor under RICO.

RICO Racketeering Affects Interstate or Foreign Commerce

Another element of RICO the government must prove is whether the organization affected interstate or foreign commerce. The codefendants argued the organization never operate outside of Puerto Rico. However, La Rompe’s trafficking of cocaine and heroin affected foreign commerce because, as the government’s expert witness testified, these narcotics are not produced in Puerto Rico and must have been imported. Additionally, the Court pointed to expert testimony that the large quantities of marijuana were likely imported from southwestern US states, thus also affecting interstate commerce.

Running the Enterprise: Level of Participation in RICO Activities

Not only must the government prove defendants participated in RICO activities, but it must also show defendants were involved to some degree with operating or managing the enterprise. The member of the enterprise need not be in a position of “upper management” to operate an enterprise. A group member can hold management status even under the direction of someone further up the chain. The Court found the La Rompe defendants held this status, at least to a sufficient degree, as evidence established they were drug-point owners.

Pattern of Racketeering

At least two predicate acts of racketeering within ten years of each other are required in showing a pattern of racketeering exists. These predicate acts include drug trafficking, bribery, money laundering, murder, robbery, extortion, and more. The government must also prove the acts are somehow related to one another and “amount to or pose a threat of continued criminal activity.” H.J. Inc. v. Nw. Bell Tel. Co., 492 U.S. 229, 239, 109 S.Ct. 2893, 106 L.Ed.2d 195 (1989).

The La Rompe defendants argued that they should not have been prosecuted under RICO because evidence only established predicate acts of drug trafficking and no other acts. However, the Court held the defendants incorrectly interpreted the requirements of “pattern of racketeering” in that the “two or more” predicate acts do not have to be two distinct acts. On the contrary, a defendant may be prosecuted under RICO for multiple counts of mail fraud, for instance, without evidence of any other types of predicate acts. 

“Knowingly Joined” Requirement

The final RICO requirement disputed by the defendants is that they did not “knowingly join” the RICO conspiracy. This element only requires that a defendant “agreed with one or more coconspirators to participate in the conspiracy.” See United States v. Ramírez-Rivera, 800 F.3d 1, 18 n.11 (1st Cir. 2015). The Court held that the defendants’ participation as drug-point owners was enough to show they knowingly entered into the conspiracy since making money through drug dealing was the main purpose of La Rompe’s conspiracy.