U.S. v. Bonilla

• Decision Date: 11 March 2011
• Docket Number: No. 09–10307.,09–10307.
• Citation: 637 F.3d 980
• Parties: UNITED STATES of America, Plaintiff–Appellee,v.Jose Hernandez BONILLA, Jr., Defendant–Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

637 F.3d 980

11 Cal. Daily Op. Serv. 3119

2011 Daily Journal D.A.R. 3703

UNITED STATES of America, Plaintiff–Appellee,

v.Jose Hernandez BONILLA, Jr., Defendant–Appellant.

No. 09–10307.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Oct. 8, 2010.Filed March 11, 2011.

Amber Sax Rosen, Assistant U.S. Attorney, for the plaintiff-appellee.Robert E. Carey, Jr., Palo Alto, CA, for the defendant-appellant.Appeal from the United States District Court for the Northern District of California, Ronald M. Whyte, Senior District Judge, Presiding. D.C. No. 5:07–cr–00251–RMW–1.Before: STEPHEN REINHARDT and MARSHA S. BERZON, Circuit Judges, and LOUIS H. POLLAK, Senior District Judge.^*

OPINION

REINHARDT, Circuit Judge:

Jose Hernandez Bonilla, Jr. appeals the district court's denial of his pre-sentencing motion to withdraw his guilty plea. Bonilla pled guilty to possession of an unregistered firearm and to being a felon in possession of a firearm. He has been a lawful permanent resident of the United States for over thirty years; his wife and two children are all U.S. citizens. When shortly after he had entered his plea Bonilla was for the first time informed that he would be deported on the basis of his plea, he moved to withdraw it, asserting that he would not have pled had he known about the immigration consequences. We hold that the district court's denial of Bonilla's motion to withdraw his plea was an abuse of its discretion.

I. BACKGROUND

A. Factual Background

The defendant, Bonilla, was born in Mexico in 1973 and was brought to the United States three years later. Thirty years afterward, he was indicted when police in Watsonville, California, responding to a gang altercation, observed a sawed-off shotgun in the front seat of a nearby, unoccupied car. The car belonged to Bonilla, who had previously been convicted of a felony.¹ His fingerprints were found on the gun, which was not registered to him. A federal grand jury returned a two count indictment charging Bonilla with possessing an unregistered firearm under 18 U.S.C. § 922(g)(1), and with being a felon in possession of a firearm under 26 U.S.C. § 5861(d).

After Bonilla's indictment, his wife, who, due to his mental health condition, sometimes speaks on his behalf, contacted an investigator at the Federal Public Defender's Office to ask whether it was possible that Bonilla could be deported in connection with his indictment. The investigator told Bonilla's wife only to contact his attorney. When she asked his lawyer at an early court appearance whether it was possible that Bonilla could be deported if he pled guilty, the attorney told her that she would look into the matter but never did, and failed to provide any information about immigration consequences to Bonilla or his wife prior to the plea hearing. At the Rule 11 colloquy, Bonilla admitted that he knew that he possessed the firearm and that it was not registered to him. He did not ask any questions of the court, and entered a plea of guilty as to both counts of the indictment without any plea agreement.

After Bonilla entered the guilty pleas, his wife again asked his lawyer about the immigration consequences of his plea. This time, his lawyer said that she would provide an answer after talking with an immigration specialist. Several days later, she told Bonilla's wife over the phone that as a result of his guilty plea, Bonilla would be deported after serving his sentence. Indeed, a conviction under either of the counts to which he pled would have constituted an aggravated felony, rendering his deportation presumptively mandatory, see 8 U.S.C. § 1227(a)(2)(A)(iii), and conviction of an aggravated felony precludes a non-citizen permanent resident like Bonilla from seeking relief from deportation. See id. § 1229b(a)(3). Bonilla's lawyer explained that she had mistakenly believed, at the time he pled, that he was a United States citizen. Shortly thereafter, Bonilla's lawyer declared a conflict of interest in representing him in his ineffective assistance appeal; new counsel was appointed that day.

Bonilla filed a motion to withdraw his plea six months before sentencing was to take place. He contended that his entry of the plea was not knowing or voluntary because he had not understood that pleading guilty would in all likelihood subject him to deportation. “I understood that no one ever indicated that I would be deported, although no one had answered my wife's questions,” Bonilla declared in an affidavit in support of the motion. “At the time of the plea of guilty, I believed that I would not be deported because of that plea. ... Had I known that I would be deported as a result of my plea of guilty, I would never ha[ve] entered that plea to these charges; instead, I would have either sought a different type of plea (which would not result in my necessarily being deported) or, alternatively, I would have gone to trial.”

B. Procedural Background

The district court denied Bonilla's motion to withdraw his plea. It relied on Ninth Circuit authority in effect at the time, which held that attorneys were not required to advise clients about immigration consequences of a plea because deportation was simply a “collateral consequence” of the plea. See United States v. Amador–Leal, 276 F.3d 511, 514–15 (9th Cir.2002). The court reasoned that because Bonilla had stated in his declaration that he was aware that his wife had asked his attorney whether pleading guilty might affect his immigration status, and because he had not brought that issue to the court's attention during the plea colloquy, he “was at least aware of the possibility of deportation.”

The district court noted that the issue whether the failure to advise an immigrant defendant of the deportation consequences of a possible plea constitutes ineffective assistance of counsel was at that time pending before the Supreme Court in Padilla v. Kentucky, ––– U.S. ––––, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010). The court nonetheless concluded that Bonilla had not received ineffective assistance because even if Padilla were retroactively to render the performance of Bonilla's counsel deficient for Sixth Amendment purposes, see Griffith v. Kentucky, 479 U.S. 314, 328, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987) (holding that “a new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases, state or federal, pending on direct review”), counsel's failure to advise Bonilla did not give rise to “a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Specifically, the court found that Bonilla's willingness to enter a plea without having received an answer to his wife's question demonstrated that he was not adversely affected by his counsel's failure to inform him about whether pleading guilty carried a risk of deportation. Finding that the failure to receive proper advice from his counsel about the immigration consequences of pleading guilty did not prejudice his decision, the district court denied Bonilla's motion to withdraw his plea. Id.

The district court sentenced Bonilla to a period of twenty-four months imprisonment on each count, with the sentences to run concurrently. Bonilla appeals the district court's denial of his motion to withdraw his plea.

II. ANALYSIS

We review for abuse of discretion the district court's denial of Bonilla's motion to withdraw his plea in accordance with the “fair and just reason” standard for withdrawal under Federal Rule of Criminal Procedure 11(d)(2)(B). As we have recently explained, the “ ‘fair and just’ standard is generous and must be applied liberally.” United States v. McTiernan, 546 F.3d 1160, 1167 (9th Cir.2008). A defendant who moves to withdraw a guilty plea before a sentence is imposed is not required to show that he would not have pled, but only that the proper legal advice of which he was deprived “could have at least plausibly motivated a reasonable person in [the defendant's] position not to have pled guilty....” United States v. Garcia, 401 F.3d 1008, 1011–12 (9th Cir.2005). A pre-sentence motion to withdraw a plea should be freely allowed if a defendant can show a “fair and just reason” for requesting the withdrawal. See United States v. Davis, 428 F.3d 802, 808 (9th Cir.2005). “Erroneous or inadequate legal advice may ... constitute a fair and just reason for plea withdrawal.” McTiernan, 546 F.3d at 1167. Here, the reason Bonilla gave for withdrawal of the plea was “inadequate legal advice” concerning the immigration consequences of his guilty plea.

Addressing the responsibility of criminal defense counsel to advise clients about immigration consequences, Padilla held, first, that because of the “unique nature of deportation” and “recent changes in our immigration law [that] have made removal nearly an automatic result for a broad class of noncitizen offenders,” “advice regarding deportation is not categorically removed from the ambit of the Sixth Amendment right to counsel.” 130 S.Ct. at 1481–82. Next, Padilla defined the scope of a criminal defense attorney's duty to advise his non-citizen client about the immigration consequences of a guilty plea:

When the law is not succinct and straightforward ..., a criminal defense attorney need do no more than advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences. But when the deportation consequence is truly clear, as it was in this case, the duty to give correct advice is equally clear.

Id. at 1483 (footnote omitted). Padilla then expressly rejected the notion that Strickland guarantees apply only to the active furnishing of erroneous advice about immigration consequences of a plea. Instead, the Court extended the right to counsel to protect against the passive omission of correct advice about the possibility of...