Debartolo v. United States, 14–3579.

• Decision Date: 26 June 2015
• Docket Number: No. 14–3579.,14–3579.
• Parties: Renato DeBARTOLO, Petitioner–Appellant, v. UNITED STATES of America, Respondent–Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

790 F.3d 775

Renato DeBARTOLO, Petitioner–Appellant

v.UNITED STATES of America, Respondent–Appellee.

No. 14–3579.

United States Court of Appeals, Seventh Circuit.

Argued June 9, 2015.

Decided June 26, 2015.

Margaret Wong, Scott E. Bratton, Attorney, Wong & Associates, Cleveland, OH, for Petitioner–Appellant.

Kenneth M. Hays, Attorney, Office of the United States Attorney, South Bend, IN, for Respondent–Appellee.

Before POSNER, KANNE, and SYKES, Circuit Judges.

Opinion

POSNER, Circuit Judge.

Renato DeBartolo, 48 years old, immigrated to the United States with his family at the age of one, but unlike most of his family never got around to applying for U.S. citizenship. He is married to an American citizen, however, and his seven or ten children (the correct number is uncertain) are of course American citizens as well. He has no family in Italy and has never learned Italian. Until recently deported to Italy, he lived in Indiana, where he owned a small construction company from 2008 to 2010. In 1996 he had been sentenced in an Indiana court to eight years in prison for dealing in cocaine, but the last four years had been suspended, so he had been released after four years; and no removal (i.e., deportation) proceedings had been instituted against him. In 2011 he was indicted in federal court for possessing with intent to distribute more than 100 marijuana plants and with manufacturing (not the right word—marijuana plants are grown rather than manufactured—but the statutory term) more than 100 such plants (the same plants), both being violations of 21 U.S.C. § 841(a)(1). He had grown the plants in a barn. Marijuana plants need bright light to grow to their maximum size, and DeBartolo had powered the lighting fixtures in the barn with electricity that he stole from the electric company by running a clandestine power line from the company's line to his barn.

The minimum statutory prison term for the offense to which he pleaded guilty was five years. But as a result of the help he gave the government after his arrest to apprehend other drug dealers in his area, and of his pleading guilty to the manufacturing offense (thus sparing the government the bother and uncertainty of a trial), the government moved for a below-minimum sentence after citing the substantial assistance to law enforcement that DeBartolo had rendered. On the basis of the plea deal, the district judge sentenced DeBartolo to only 25 months in prison. See 18 U.S.C. § 3553(e) ; U.S.S.G. § 5K1.1. The distribution charge was dropped, and though DeBartolo pleaded guilty in state court to the electricity theft, the state court imposed a prison sentence to run concurrently with his federal sentence.

There was no mention of deportation in the federal case. But unbeknownst to DeBartolo, and also it seems to his lawyer, the prosecutors, and the judge, his conviction of the drug offense made him deportable (“removable” is the official term) and, were he ordered removed, would prevent him from applying for cancellation of removal. See 8 U.S.C. §§ 1101(a)(43), 1227(a)(2)(A)(iii), (B)(i), 1229b(a)(3).

Removal proceedings were indeed instituted, and after he completed his prison sentence he was removed to Italy, where he remains. But while his removal case was pending he had filed a motion in the district court under 28 U.S.C. § 2255(a), claiming that he had been denied effective assistance of counsel in his criminal case in violation of the Sixth Amendment, because his lawyer had failed to warn him that if he were convicted he could well be deported; nor had he been told by anyone else. The relief he sought in his section 2255(a) petition for the failure to warn him of the risk of removal was withdrawal of his guilty plea, which would enable him to request a trial or try to negotiate a plea of guilty to a non-removable offense. The judge denied the petition, precipitating this appeal.

The failure to inform a defendant that if convicted he will be deported was held by the Supreme Court in Padilla v. Kentucky, 559 U.S. 356, 369, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), to be ineffective assistance of counsel, violative of the Sixth Amendment. As later noted in Missouri v. Frye, ––– U.S. ––––, 132 S.Ct. 1399, 1407, 182 L.Ed.2d 379 (2012), “plea bargains have become so central to the administration of the criminal justice system that defense counsel have responsibilities in the plea bargain process ... that must be met to render the adequate assistance of counsel that the Sixth Amendment requires in the criminal process at critical stages.” But there are two kickers. The defendant must show that if his counsel had not made the error of which he complains (in this case failing to warn the defendant that he faced deportation if convicted, as he would be if he pleaded guilty), there was a “reasonable probability” that he (the defendant) would have gone to trial rather than have pleaded guilty. Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985) ; see also Padilla v. Kentucky, supra, 559 U.S. at 366, 130 S.Ct. 1473 ; Kovacs v. United States, 744 F.3d 44, 51 (2d Cir.2014). The defendant must also show that to reject the plea bargain and go to trial would have been “rational under the circumstances.” Padilla v. Kentucky, supra, 559 U.S. at 372, 130 S.Ct. 1473 ; Hernandez v. United States, 778 F.3d 1230, 1234 (11th Cir.2015).

A mentally competent criminal defendant who decides to stand trial even though he's almost certain to be convicted, and who by pleading guilty would be assured of a much lighter sentence than if convicted after a trial, nevertheless can't be ordered by the judge to plead guilty; a judge can't plead a defendant guilty however much the plea would be in the defendant's best interest. Why should the rule be different if the defendant, upon belated discovery of a deportation threat about which his counsel failed to warn him, chooses to withdraw a plea of guilty and risk a trial that may result in a long sentence?

If the two verbal formulas are substantively different, the difference is that the “reasonable probability” formula asks only what the defendant would have done had he known he faced deportation, while the “rational under the circumstances” formula asks what he'd have done were he a reasonable person. The first standard is more congenial to the usual understanding of the criminal process, which is that a criminal defendant, unless mentally incompetent (in which event he can't be prosecuted until cured), has a right to a jury trial no matter how slight his chances of prevailing.

DeBartolo unquestionably wants to roll the dice, which is strong evidence that he also would have chosen to roll the dice four years ago had he known about the deportation threat. He faces the same risk of conviction and a long sentence now that he did then. His personal choice to roll the dice is enough to satisfy the “reasonable probability” standard.

The government wobbles between the two standards for allowing the withdrawal of one's guilty plea upon belated discovery of the deportation threat. Mainly it argues—and the district judge agreed in denying DeBartolo's motion to vacate his guilty plea—that the evidence is so stacked against DeBartolo that he would not in fact have insisted on a trial even if he'd known he'd be deported as a consequence of pleading guilty and therefore of being convicted. But the government also argues, though at lesser length, that it would have been “irrational” for DeBartolo to insist on a trial, which sounds like the “rational under the circumstances” test.

Judges and prosecutors should hesitate to speculate on what a defendant would have done in changed circumstances. The district court's decision oversimplifies the factors that DeBartolo would have had to weigh had he known he'd be facing deportation if convicted, in deciding whether to seek a trial rather than, as he...