United States v. Nepal, No. 17-10228

• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)
• Writing for the Court: JAMES E. GRAVES, JR., Circuit Judge
• Citation: 894 F.3d 204
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Roger NEPAL, Defendant–Appellant.
• Docket Number: No. 17-10228
• Decision Date: 27 June 2018

894 F.3d 204

UNITED STATES of America, Plaintiff–Appellee,
v.
Roger NEPAL, Defendant–Appellant.

No. 17-10228

United States Court of Appeals, Fifth Circuit.

FILED June 27, 2018

Emily Baker Falconer, Assistant U.S. Attorney, James Wesley Hendrix, Assistant U.S. Attorney, U.S. Attorney's Office, Northern District of Texas, Dallas, TX, David Brian Goodhand, U.S. Department of Justice, Criminal Division, Washington, DC, for Plaintiff–Appellee.

J. Craig Jett, Burleson, Pate & Gibson, L.L.P., Paul Taliaferro Lund, Dallas, TX, for Defendant–Appellant.

Before WIENER, GRAVES, and HO, Circuit Judges.

JAMES E. GRAVES, JR., Circuit Judge:

Following a plea agreement, Defendant Roger Nepal, who was born in Nepal but later became a naturalized U.S. citizen, pleaded guilty to and was convicted of a single count of violating 18 U.S.C. § 1425(a), which prohibits knowingly procuring citizenship contrary to law. The factual resume accompanying the plea agreement details how in both his Application for Naturalization and his subsequent citizenship interview, Nepal falsely stated that he had no children when, in fact, he did. The factual resume also states that had immigration officials known that Nepal had children, it would have led to the discovery that Nepal did not properly and completely provide financial support to his son. The district court accepted the plea agreement, convicted Nepal of violating Section 1425(a) and, as part of his sentence, revoked his citizenship. Nepal appeals.

While the appeal was pending, the Supreme Court announced its decision in Maslenjak v. United States , 582 U.S. ––––, 137 S.Ct. 1918, 198 L.Ed.2d 460 (2017), in which it (1) clarified the Government’s burden of proof in a Section 1425(a) prosecution and (2) held that qualification for citizenship, notwithstanding any materially false statement, is a complete defense to prosecution. Nepal contends that Maslenjak effected a change in the law such that the district court plainly erred in accepting his guilty plea because, following Maslenjak , that plea is no longer supported by a sufficient factual basis. He also contends that he is entitled to invoke the newly announced defense.

Both contentions lack merit. We affirm.

I

In 2015, a grand jury issued a three-count

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indictment against Nepal.¹ He was charged with conspiracy to commit fraud in connection with immigration documents, in violation of 18 U.S.C. §§ 371 & 1546(a) (Count One); fraud and misuse of visas, permits, and other documents, in violation of 18 U.S.C. § 1546(a) (Count Two); and unlawful procurement of naturalization, in violation of 18 U.S.C. § 1425(a) (Count Three). The statutory provision at issue in Count Three, Section 1425(a), prohibits "knowingly procur[ing] or attempt[ing] to procure, contrary to law, the naturalization of any person." 18 U.S.C. § 1425(a). For present purposes, the indictment advanced three relevant allegations. First, Nepal filed a Form N–400 Application for Naturalization with the then-extant Immigration and Naturalization Service in December 2001, falsely claiming, inter alia , that he did not have children, when in fact he had four children—contrary to 18 U.S.C. § 1015(a), which prohibits false statements "relating to ... naturalization." Second, Nepal lied in his July 2005 naturalization interview with the Bureau of Citizenship and Immigration Services when he again denied having any children—again contrary to 18 U.S.C. § 1015(a). And third, the production of truthful information about Nepal’s children "would have led to the discovery of facts relevant to the Application for Naturalization and his statutory ineligibility for naturalization."

The case went to trial in September 2016. After three days, Nepal agreed to plead guilty to Count Three, and the Government agreed to dismiss the other two counts. The parties prepared a plea agreement. In the factual resume accompanying that agreement, Nepal admitted that he lied by failing to list his son, Ashwin Dahal, on his N–400 application and that he lied during his naturalization interview by denying that he had any children. He further admitted that "the production of truthful information" about his son "would have led to the discovery of facts relevant to the Application for Naturalization and his statutory ineligibility due to lacking the good moral character during the statutory time period for naturalization." Specifically on that point, Nepal admitted that "it would have led to the discovery of the fact that he had not been properly and completely providing financial support for Ashwin Dahal." He admitted that this course of conduct violated Section 1425(a).

At the change of plea hearing, Nepal acknowledged that he understood the factual resume’s contents and that he signed the factual resume. He did not object to the factual basis of his plea. The district court found that Nepal was competent and capable of entering into an informed plea, and that his plea was knowing and voluntary. The court accepted the plea agreement, pursuant to Federal Rule of Criminal Procedure 11(c)(1)(C) ; convicted him of violating Section 1425(a) ; sentenced him to the agreed-upon term of 366 days’ imprisonment; ordered him to pay $200,000 restitution; and, pursuant to 8 U.S.C. § 1451,² declared that "as of today ... [Nepal’s] citizenship is revoked." Nepal timely appealed, and we have jurisdiction. See 28 U.S.C. § 1291 ; 18 U.S.C. § 3742(a).

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II

"We review guilty pleas for compliance with Rule 11," United States v. Garcia–Paulin , 627 F.3d 127, 130 (5th Cir. 2010), a rule designed to "ensure that a guilty plea is knowing and voluntary, by laying out the steps a trial judge must take before accepting such a plea," United States v. Vonn , 535 U.S. 55, 58, 122 S.Ct. 1043, 152 L.Ed.2d 90 (2002). "One such step is determining that a defendant’s guilty plea is supported by an adequate factual basis."³ United States v. Alvarado–Casas , 715 F.3d 945, 949 (5th Cir. 2013). The district court makes this determination by following Rule 11(b)(3), which instructs it to "make certain that the factual conduct admitted by the defendant is sufficient as a matter of law to establish a violation of the statute to which he entered his plea." United States v. Trejo , 610 F.3d 308, 313 (5th Cir. 2010) (emphases in original). "[N]otwithstanding an unconditional plea of guilty, we will reverse on direct appeal where the factual basis for the plea as shown of record fails to establish an element of the offense of conviction." United States v. White , 258 F.3d 374, 380 (5th Cir. 2001).

To determine whether a factual basis for a plea exists, we must compare "(1) the conduct to which the defendant admits with (2) the elements of the offense charged in the indictment or information." United States v. Marek , 238 F.3d 310, 315 (5th Cir. 2001) (en banc). "If sufficiently specific, an indictment or information can be used as the sole source of the factual basis for a guilty plea." United States v. Hildenbrand , 527 F.3d 466, 475 (5th Cir. 2008) (quoting United States v. Adams , 961 F.2d 505, 509 (5th Cir. 1992) ). Additionally, "[o]n plain error review, we [may] take a wide look, examining ‘the entire record for facts supporting [the] guilty plea’ " and drawing reasonable inferences from those facts. United States v. Barton , 879 F.3d 595, 599 (5th Cir. 2018) (quoting Trejo , 610 F.3d at 317 ).

When the defendant does not object to the sufficiency of the factual basis of his plea before the district court—instead raising for the first time on appeal the question whether the undisputed factual basis is sufficient as a matter of law to sustain his plea (as Nepal does here)—our review is restricted to plain error. United States v. Broussard , 669 F.3d 537, 546 (5th Cir. 2012) ; see also Fed. R. Crim. P. 52(b).⁴ Success on plain error review requires a showing by the defendant that a clear and obvious error affected his substantial rights. United States v. Fairley , 880 F.3d 198, 206 (5th Cir. 2018). If the defendant makes this showing, "it is well established that courts ‘should’ correct a forfeited plain error that affects substantial rights ‘if the error seriously affects the fairness, integrity or public reputation of judicial

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proceedings.’ " Rosales–Mireles v. United States , 585 U.S. ––––, ––––, 138 S.Ct. 1897, 1906, ––– L.Ed.2d –––– (2018) (quoting United States v. Olano , 507 U.S. 725, 735, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) ).

III

A

The Supreme Court decided Maslenjak v. United States , 582 U.S. ––––, 137 S.Ct. 1918, 198 L.Ed.2d 460 (2017), which interpreted Section 1425(a), while this appeal was pending; it is now the controlling law. See Griffith v. Kentucky , 479 U.S. 314, 328, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987). Thus, resolution of the question whether the district court committed error requires us to decide whether Nepal has established that Maslenjak altered the Section 1425(a) analysis in such a way that the indictment and factual resume no longer provide a sufficient factual basis for his plea.

Section 1425(a) provides that "[w]hoever knowingly procures or attempts to procure,...