761 F.2d 226 (5th Cir. 1985), 84-2373, United States v. Gavilan

Docket Nº:84-2373.
Citation:761 F.2d 226
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Gil Ricardo GAVILAN, Defendant-Appellant.
Case Date:May 28, 1985
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 226

761 F.2d 226 (5th Cir. 1985)

UNITED STATES of America, Plaintiff-Appellee,

v.

Gil Ricardo GAVILAN, Defendant-Appellant.

No. 84-2373.

United States Court of Appeals, Fifth Circuit

May 28, 1985

Page 227

Bush & Donnelly, J. Steven Bush, Dallas, Tex., for defendant-appellant.

Daniel K. Hedges, U.S. Atty., Susan L. Yarbrough, James R. Gough, Asst. U.S. Attys., Houston, Tex., for plaintiff-appellee.

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

Before RUBIN, WILLIAMS and DAVIS, Circuit Judges.

ALVIN B. RUBIN, Circuit Judge:

A Cuban refugee was indicted for possession with intent to distribute approximately ten pounds of marijuana. Facing a maximum sentence of five years in prison, $15,000 fine, and a special parole term of at least two years, he entered a guilty plea on the advice of retained counsel. Counsel did not know and, therefore, did not advise the refugee that conviction would prompt the Immigration and Naturalization Service (INS) to revoke the refugee's immigration parole and thereby exclude him from the United States, 1 and that he would then be deported if another country agreed to accept him, or, failing this, that the INS might detain him indefinitely. 2 He seeks post-conviction relief, urging that his conviction be set aside on the grounds that his plea was not knowingly entered and his counsel was ineffective for failing to inform him of these collateral consequences of pleading guilty. Finding that Gavilan's ignorance of these consequences did not render his guilty plea defective and that he has not shown that his lawyer's failure to warn of these consequences prejudiced him, we affirm the district court's denial of his motion to vacate the sentence.

Gil Ricardo Gavilan arrived in the United States in 1980 as a refugee of the Freedom Flotilla from Mariel, Cuba. He promptly received a conditional release into this country, termed a temporary parole, pursuant to 8 U.S.C. Sec. 1182(d)(5). After his arrest for possession of marijuana, the INS placed an immigration "hold" on Gavilan, which his counsel succeeded in removing.

When Gavilan later tendered a guilty plea the district court described the permissible range of punishment for the offense charged, which included a mandatory parole term in addition to any imprisonment ordered. Gavilan stated that his counsel had explained, and that he understood, the meaning of "special parole." Upon Gavilan's further representation that he was not advised to plead guilty as a result of any threat or promise other than the Government's plea agreement, the court concluded his plea was voluntarily entered.

In addition to the two-year special parole term, the court sentenced Gavilan to 60 days in jail and placed him on four years supervised probation. After serving his prison term, Gavilan was delivered to INS authorities, who detained him pending exclusion proceedings.

At the hearing on his Sec. 2255 motion to vacate his sentence, Gavilan testified that he thought his immigration problems were over once the previous INS "hold" was removed. He observed that his prior conviction in Texas for carrying a weapon had not affected his immigration status. He further testified that he understood the court's imposition of special parole, but he did not...

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