U.S. v. Gonzalez

• Decision Date: 05 November 1999
• Docket Number: No. 99-1179,99-1179
• Citation: 202 F.3d 20,2000 WL 39120
• Parties: (1st Cir. 2000) UNITED STATES, APPELLEE, v. GERALDO GONZALEZ, DEFENDANT, APPELLANT. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 20

202 F.3d 20 (1st Cir. 2000)

UNITED STATES, APPELLEE, v. GERALDO GONZALEZ, DEFENDANT, APPELLANT.

No. 99-1179.

U.S. Court of Appeals, First Circuit.

Heard Nov. 5, 1999.

Decided January 24, 2000.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE. Hon. Joseph A. DiClerico, Jr., U.S. District Judge. [Copyrighted Material Omitted]

Kern Cleven for appellant.

Arnold H. Huftalen, Assistant United States Attorney, with whom Paul M. Gagnon, United States Attorney, was on brief for appellee.

Before Stahl, Circuit Judge, Bownes, Senior Circuit Judge, and Lipez, Circuit Judge.

Stahl, Circuit Judge.

Defendant-appellant Geraldo Gonzalez appeals from the district court's refusal to allow him to withdraw his plea before sentencing, and its failure to conduct an evidentiary hearing on the motion seeking such withdrawal. We affirm.

I. Background

On April 10, 1997, Gonzalez, a national of Cuba who has resided in the United States since 1980, was indicted on three separate charges. Attorney Phillip Desfosses was appointed to represent him. On August 4, 1997, represented by Desfosses's partner Harry Starbranch, Gonzalez pleaded guilty to two charges: mail fraud, in violation of 18 U.S.C. § 1341 (1994), and the use of an unauthorized access device to obtain property exceeding $1,000 in value, as proscribed by 18 U.S.C. § 1029(a)(2) (1994). During his plea colloquy, Gonzalez admitted that the losses resulting from his crimes in fact exceeded $10,000.

Gonzalez successfully moved to continue sentencing on November 10, 1997, and on December 25, 1997, he requested substitute counsel. On December 30, 1997, Desfosses moved to withdraw from the case. In January, 1998, the court granted Desfosses's motion and appointed attorney Sven Wiberg to represent Gonzalez.

On September 4, 1998, following several more continuances which further postponed sentencing, Gonzalez moved to withdraw his plea pursuant to Federal Rule of Criminal Procedure 32(e) ("Rule 32(e)"). Gonzalez's Rule 32(e) motion averred that he had not been informed of his guilty plea's "potential and/or likely adverse immigration consequences" until after the plea was made. The motion included a letter from Desfosses confirming Gonzalez's assertion.¹ Gonzalez argued that Desfosses's failure to advise him of the immigration issue constituted ineffective assistance of counsel and rendered his plea defective. Gonzalez did not request, and the court did not conduct, an evidentiary hearing on the Rule 32(e) motion.

On December 7, 1998, the court denied Gonzalez's motion. Gonzalez filed a "Motion to Reconsider Motion to Withdraw Plea," which was denied on January 4, 1999. The next day, the court sentenced Gonzalez to twenty-seven (27) months of imprisonment and ordered him to pay $17,273.03 in restitution.

In addition to his criminal punishment, Gonzalez's conviction subjected him to potential immigration-related consequences. The Immigration and Nationality Act ("INA"), 8 U.S.C. § 1101 et seq. (1994 & Supp. II 1996), enumerates various "aggravated felonies" the commission of which will render an alien deportable. See id. § 1101 (a)(43); id. § 1227 (a)(2)(A)(iii). This list includes "an offense that... involves fraud or deceit in which the loss to the victim or victims exceeds $10,000." Id. § 1101(a)(43)(M). Because Gonzalez's fraudulent activities caused losses exceeding $10,000, he had committed an "aggravated felony" under the INA, and had therefore become subject to deportation.

The INA directs the Attorney General to "take into custody any alien who... is deportable by reason of having committed [among other things, any aggravated felony]... when the alien is released." Id. § 1226(c)(1). The Attorney General may release such an alien only in narrowly limited circumstances not here applicable.² This regime reflects amendments embodied in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, 110 Stat. 3009-546 ("IIRIRA").³ As a native of Cuba, which has no deportation agreement with the United States, Gonzalez now faces the possibility of indefinite administrative detention following his release from prison.

II. Discussion

Gonzalez advances several arguments in his attempt to reverse the district court's refusal to grant his Rule 32(e) motion. He also challenges the court's failure to hold an evidentiary hearing prior to ruling on the motion. We address these arguments in turn.

A. Motion to Withdraw Plea

The heart of Gonzalez's claim is that neither his attorneys nor the district judge advised him that if he pleaded guilty, he would be deemed "deportable" and subject to detention by the INS. He further complains that the district court failed to warn him of the possibility of restitution. Gonzalez contends that these deficiencies entitled him to withdraw his plea. We review the trial court's refusal to grant a change of plea only for abuse of discretion, see, e.g., United States v. Raineri, 42 F.3d 36, 41 (1st Cir. 1994); United States v. Austin, 948 F.2d 783, 787 (1st Cir. 1991), and finding none, we affirm.

Rule 32(e) states that "[i]f a motion to withdraw a plea of guilty... is made before sentence is imposed, the court may permit the plea to be withdrawn if the defendant shows any fair and just reason." Fed. R. Crim. P. 32(e) (emphasis added). A defendant thus has no absolute right to withdraw a plea. See United States v. Muriel, 111 F.3d 975, 978 (1st Cir. 1997); United States v. Isom, 85 F.3d 831, 834 (1st Cir. 1996). A "fair and just reason" is a necessary, but not sufficient, predicate to plea withdrawal. See United States v. Doyle, 981 F.2d 591, 594 (1st Cir. 1992) ("A defendant may withdraw a guilty plea prior to sentencing only upon a showing a fair and just reason for the request."); see also Raineri, 42 F.3d at 41 (same).

Rule 32(e) motions must be considered in the general context of Fed. R. Crim. P. 11 ("Rule 11"), which governs the entry of all guilty pleas. Rule 11(c) provides that:

[b]efore accepting a plea of guilty... the court must address the defendant personally in open court and inform the defendant of, and determine that the defendant understands,... the nature of the charge to which the plea is offered, the mandatory minimum penalty provided by law, if any, and the maximum possible penalty provided by law, including the effect of any special parole or supervised release term, the fact that the court is required to consider any applicable sentencing guidelines but may depart from those guidelines under some circumstances, and, when applicable, that the court may also order the defendant to make restitution to any victim of the offense.

Fed. R. Crim. P. 11. Yet Rule 11(h), labeled "Harmless Error," states that "[a]ny variance from the procedures required by [Rule 11] which does not affect substantial rights shall be disregarded."

In evaluating Rule 32(e) motions, a court's central concern is whether the plea was "voluntary, intelligent and knowing, within the meaning of Rule 11." United States v. Marrero-Rivera, 124 F.3d 342, 347 (1st Cir. 1997); see also United States v. Cotal-Crespo, 47 F.3d 1, 3 (1st Cir. 1995); United States v. Allard, 926 F.2d 1237, 1243 (1st Cir. 1991). In addition, the district court must consider four factors: (1) the force of the defendant's reason for the change of plea; (2) the timing of the request; (3) whether or not the defendant asserts innocence in connection with his plea withdrawal; and (4) whether a plea agreement had been reached. See Marrero-Rivera, 124 F.3d at 347; Isom, 85 F.3d at 834; Cotal-Crespo, 47 F.3d at 4. We address the final three factors first and then turn to the reasons for Gonzalez's requested plea withdrawal and whether those reasons render his plea involuntary.

The timing of Gonzalez's motion casts doubt on his entitlement to a plea withdrawal. "[A] long interval between the plea and the request often weakens any claim that the plea was entered in confusion or under false pretenses." Doyle, 981 F.2d at 595; see also Isom, 85 F.3d at 838-39. Of course, when a defendant seeks to withdraw his plea based on knowledge that was obtained after the plea, the relevant temporal gap is not the time between the Rule 32(e) motion and the original plea, but the time between his discovery of the new information and the filing of his motion. Here, this gap is extensive. In the letter from Desfosses that Gonzalez submitted with his Motion to Withdraw Plea, Desfosses stated that "[i]t was not until the attorney-client relationship between myself and Mr. Gonzalez had started to breakdown did he inform me that the law had recently been changed regarding the deportation of Cubans due to felony convictions." Thus, Gonzalez became aware of his plea's immigration consequences sometime before the end of December, 1997, when Desfosses sought to remove himself from further representation. Yet, notwithstanding that acquired knowledge, Gonzalez did not move to withdraw his plea until September, 1998. We have previously rejected plea withdrawal motions in which the relevant gap was six months, see Doyle, 981 F.2d at 595, two months, see Isom, 85 F.3d at 839, three weeks, see United States v. Keefe, 621 F.2d 17, 18 (1st Cir. 1980), and even thirteen days, see United States v. Ramos, 810 F.2d 308, 313 (1st Cir. 1987).

Gonzalez's consistent failure to assert his innocence also weighs against the reversal of the district court's decision. "Courts look more hospitably on a motion to withdraw a guilty plea when the motion is coupled with an assertion of innocence.... [T]he absence of a claim of innocence weighs in favor of allowing a guilty plea to stand." Doyle, 981 F.2d at 596. Gonzalez at no time asserted his innocence. Finally, Gonzalez does not dispute that he signed a plea agreement, and that signed agreement casts further doubt on his claims.

We thus turn to the three purported bases of Gonzalez's Motion to Withdraw Plea, and...