1 F.3d 354 (5th Cir. 1993), 92-7618, United States v. Banda

Docket Nº:92-7618.
Citation:1 F.3d 354
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Marco Antonio BANDA, Defendant-Appellant.
Case Date:September 10, 1993
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 354

1 F.3d 354 (5th Cir. 1993)

UNITED STATES of America, Plaintiff-Appellee,


Marco Antonio BANDA, Defendant-Appellant.

No. 92-7618.

United States Court of Appeals, Fifth Circuit

September 10, 1993

Page 355

Lisa Brodyaga, Thelma O. Garcia, Harlingen, TX, for defendant-appellant.

James L. Turner and Paula Offenhauser, Asst. U.S. Attys., Gaynelle G. Jones, U.S. Atty., Houston, TX, for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Texas.

Before JOHNSON, JOLLY, and JONES, Circuit Judges.

EDITH H. JONES, Circuit Judge:

Marco Antonio Banda, an alien, pleaded guilty to possession with intent to distribute 497 bottles of dimentane containing 99 grams of codeine in violation of 21 U.S.C. Secs. 841(a) and 841(b)(3). Banda did not appeal his conviction and sentence. Subsequently, the Immigration and Naturalization Service brought deportation proceedings against Banda based on the conviction. To forestall his deportation, Banda sought relief under 28 U.S.C. Sec. 2255 and a writ of audita querela pursuant to the All Writs Act, 28 U.S.C. Sec. 1651(a). The thrust of Banda's complaint is that he was denied the effective assistance of counsel because his attorney in the criminal proceeding did not tell Banda that he might be subject to deportation if he pleaded guilty to the charge. He asserts that his plea was involuntary for this reason. The district court denied relief. We hold that an attorney's failure to advise a client that deportation is a possible consequence of a guilty plea does not constitute ineffective assistance of counsel.

The facts of this case are simple and undisputed. Banda's attorney in the underlying criminal proceedings did not inform Banda that he might be deported if he pleaded guilty to the charge. Banda claims now that if he had known of the possibility of deportation he would not have pleaded guilty. Banda has a wife and children in the United States, all of whom are American citizens, and all of whom will likely choose to remain behind if he is deported.

In United States v. Gavilan, 761 F.2d 226, 228 (5th Cir.1985), we nailed the door shut on any due process claim based on counsel's failure to warn the criminal defendant of possible deportation. This court noted that defendants have no due process right to be informed of the collateral consequences of criminal proceedings. That principle applies even to harsh collateral consequences, such as loss of the right to vote, to travel abroad, or to drive a car. See id. at 228 (citing cases).

Gavilan left open the question whether counsel's failure to inform a client of the

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