U.S. v. Thompson-Riviere

• Decision Date: 26 March 2009
• Docket Number: No. 07-4793.,07-4793.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Ray Alexander THOMPSON-RIVIERE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

561 F.3d 345

UNITED STATES of America, Plaintiff-Appellee, v. Ray Alexander THOMPSON-RIVIERE, Defendant-Appellant.

No. 07-4793.

United States Court of Appeals, Fourth Circuit.

Argued: December 5, 2008.

Decided: March 26, 2009.

ARGUED: Mary Elizabeth Maguire, Office of the Federal Public Defender, Richmond, Virginia, for Appellant. Stephen Wiley Miller, Office of the United States Attorney, Richmond, Virginia, for Appellee. ON BRIEF: Michael S. Nachmanoff, Federal Public Defender, Alexandria, Virginia, for Appellant. Chuck Rosenberg, United States Attorney, Alexandria, Virginia; N.G. Metcalf, Assistant United States Attorney, Office of the United States Attorney, Richmond, Virginia, for Appellee.

Before NIEMEYER, SHEDD, and DUNCAN, Circuit Judges.

Vacated and remanded by published opinion. Judge SHEDD wrote the opinion, in which Judge NIEMEYER and Judge DUNCAN joined.

OPINION

SHEDD, Circuit Judge:

Ray Alexander Thompson-Riviere, who was born in the Panama Canal Zone, pled guilty to one count charging him with violating 8 U.S.C. § 1326(b)(4). That statute makes it a criminal offense for an alien who has previously been removed from the United States to reenter the country without the approval of the Attorney General. Before sentencing, Thompson-Riviere moved to withdraw his guilty plea, primarily contending that newly obtained DNA evidence indicates that he may be the biological son of a United States citizen and, if so, he is also a United States citizen— rather than an alien—by virtue of 8 U.S.C. § 1403(a). That statute creates a right of derivative United States citizenship for certain persons born in the Canal Zone. Finding that Thompson-Riviere failed to meet his burden of proof under § 1403(a), the district court denied the motion and eventually sentenced him to an 87-month term of imprisonment. Thompson-Riviere now appeals the denial of his plea withdrawal motion. For the reasons set forth below, we hold that the district court abused its discretion in denying the motion. Accordingly, we vacate the judgment and remand this case with instructions to the district court to allow him to withdraw his plea.

I

A guilty plea is "a grave and solemn act," Brady v. United States, 397 U.S. 742, 748, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970), and "is an event of signal significance in a criminal proceeding," Florida v. Nixon, 543 U.S. 175, 187, 125 S.Ct. 551, 160 L.Ed.2d 565 (2004). It "is more than a confession which admits that the accused did various acts; it is itself a conviction; nothing remains but to give judgment and determine punishment." Boykin v. Alabama, 395 U.S. 238, 242, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). Guilty pleas "are indispensable in the operation of the modern criminal justice system," and the finality of such pleas is a matter of "particular importance." United States v. Dominguez Benitez, 542 U.S. 74, 82-83, 124 S.Ct. 2333, 159 L.Ed.2d 157 (2004).

Consequently, a defendant awaiting sentencing does not have an absolute right to withdraw a guilty plea. United States v. Bowman, 348 F.3d 408, 413 (4th Cir. 2003). Rather, Federal Rule of Criminal Procedure 11(d)(2)(B) authorizes the withdrawal of a guilty plea before sentencing only if "the defendant can show a fair and just reason for requesting the withdrawal." Because of "the grim dynamics of plea bargaining, including the prevalence of `buyer's remorse' among those who have pled," United States v. Torres-Rosario, 447 F.3d 61, 66 (1st Cir.2006), a district court should not interpret Rule 11(d)(2)(B) "to allow a defendant to withdraw a guilty plea `simply on a lark' after [it] conducts a thorough plea colloquy and has made the requisite findings," United States v. Battle, 499 F.3d 315, 321 (4th Cir.2007), cert. denied, ___ U.S. ___, 128 S.Ct. 1121, 169 L.Ed.2d 951 (2008). As we have explained:

The orderly procedure in our busy trial courts would be disrupted if a fair and just reason were found to lodge in all cases where the vagaries of a defendant were due only to a wish held by many if not all criminal defendants who do not relish the prospects of standing trial but also, in the end, decide to take an unreasonably long-shot gamble on beating by standing trial a fair, reasonable and just guilty plea.

United States v. DeFreitas, 865 F.2d 80, 83 (4th Cir.1989); see also Brady, 397 U.S. at 757, 90 S.Ct. 1463 ("A defendant is not entitled to withdraw his plea merely because he discovers long after the plea has been accepted that his calculus misapprehended the quality of the State's case or the likely penalties attached to alternative courses of action.").

"[T]he defendant bears the burden of demonstrating that withdrawal should be granted," United States v. Dyess, 478 F.3d 224, 237 (4th Cir.), cert. denied, ___ U.S. ___, 128 S.Ct. 707, 169 L.Ed.2d 556 (2007); in this regard, the defendant bears a "heavy burden of persuasion in showing that ... a fair and just reason exists," United States v. Chavers, 515 F.3d 722, 724 (7th Cir.2008). "The decision to permit the defendant to withdraw a plea is discretionary, and our review is limited to the question of whether the district court abused its discretion." United States v. Lambey, 974 F.2d 1389, 1393 (4th Cir.1992) (en banc). "A district court abuses its discretion when it acts arbitrarily or irrationally, fails to consider judicially recognized factors constraining its exercise of discretion, relies on erroneous factual or legal premises, or commits an error of law." United States v. Delfino, 510 F.3d 468, 470 (4th Cir.2007), cert. denied, ___ U.S. ___, 129 S.Ct. 41, 172 L.Ed.2d 20 (2008).

In light of the fact that "a properly conducted Rule 11 guilty plea colloquy leaves a defendant with a very limited basis upon which to have his plea withdrawn," we have articulated a list of non-exclusive factors for a district court to consider in deciding a plea withdrawal motion. Bowman, 348 F.3d at 414. Those factors are: (1) whether the defendant has offered credible evidence that his plea was not knowing or not voluntary, (2) whether the defendant has credibly asserted legal innocence, (3) whether there has been a delay between entry of the plea and the filing of the motion, (4) whether the defendant has had close assistance of competent counsel, (5) whether withdrawal will prejudice the government, and (6) whether withdrawal will inconvenience the court and waste judicial resources. Id. The consideration of these factors is not "a rigidly mechanistic test, for the conspicuous fuzziness of [the] operative terms—`fair and just'—precludes such an endeavor." United States v. Sparks, 67 F.3d 1145, 1154 (4th Cir.1995). However, a district court typically should balance these factors, along with any other pertinent information, to reach its decision. See United States v. Faris, 388 F.3d 452, 461 (4th Cir.2004).

II

Evidence in the record indicates that Thompson-Riviere was born in October 1965 in the Coco Solo Hospital in the Canal Zone.¹ His official birth certificate, which is marked as being certified by the Panama Canal Commission, lists his parents as Calvin Thompson and Elvira Riviere, Panamanian citizens who were married at the time of Thompson-Riviere's birth. Calvin Thompson and Elvira Riviere were married for 35 years and are now deceased.

During the 1980s, Thompson-Riviere entered the United States. In 1994, he was ordered deported to Panama, and he was removed from the United States to Panama in 1996. He reentered the United States on the day after he was removed. In 2006, the government indicted him under § 1326(b)(4) for illegal reentry into the United States. To convict him of this offense, the government bore the burden of proving beyond a reasonable doubt that (inter alia) he is an "alien," United States v. Espinoza-Leon, 873 F.2d 743, 746 (4th Cir.1989), which means he is "not a citizen or national of the United States," 8 U.S.C. § 1101(a)(3). Having no sufficient reason to doubt that he was an alien, he pled guilty to the charged offense.

Thompson-Riviere has numerous siblings and maternal half-siblings, but he has always been closest with Barbara Hughes. Before his sentencing, Thompson-Riviere obtained DNA evidence showing a 99% probability that he shares the same father and mother with Barbara Hughes. Her official birth certificate, which is marked as being certified by the Panama Canal Commission, states that she was born in 1950 in the Naval Hospital at Coco Solo to Elvira Riviere and David Hughes, a United States citizen. She is the youngest of several children born to these parents. Until this DNA evidence was obtained, Barbara Hughes and Thompson-Riviere believed that they were only maternal half-siblings. Barbara Hughes is retired from the United States Air Force and appears to have resided in the United States since at least the early 1980s.

Armed with this DNA evidence, Thompson-Riviere moved to withdraw his guilty plea. Although he briefly addressed all of the pertinent plea withdrawal factors, the thrust of his motion is his assertion of legal innocence. Critical to his argument is 8 U.S.C. § 1403(a), which reads:

Any person born in the Canal Zone on or after February 26, 1904, and whether before or after the effective date of this chapter, whose father or mother or both at the time of the birth of such person was or is a citizen of the United States, is declared to be a citizen of the United States.

Thompson-Riviere argued that the DNA evidence creates a real possibility that he is a United States citizen by virtue of § 1403(a) because his father very well may be David Hughes who, as noted, was a United States citizen. As Thompson-Riviere explained, if he is a United States citizen rather than an alien, then he necessarily would be innocent of the charged offense. In making this argument, Thompson-Riviere asserted in his legal memorandum:

When Mr. Thompson-Riviere was interviewed by Special Agent Robert G. Brown at the Lunenburg Correctional Center in November...