United States v. Yansane

• Decision Date: 26 February 2019
• Docket Number: Criminal Action No. TDC-17-0435
• Citation: 370 F.Supp.3d 580
• Parties: UNITED STATES of America v. Sheku Deen YANSANE, Defendant.
• Court: U.S. District Court — District of Maryland

370 F.Supp.3d 580

UNITED STATES of America

v.Sheku Deen YANSANE, Defendant.

Criminal Action No. TDC-17-0435

United States District Court, D. Maryland.

Signed February 26, 2019

Joseph S. McFarlane, US Attorney's Office, Kelly O'Connell Hayes, Office of the United States Attorney, Greenbelt, MD, for United States of America.

MEMORANDUM OPINION

THEODORE D. CHUANG, United States District Judge

On April 17, 2018, Defendant Sheku Deen Yansane pleaded guilty to one count of Possession of Marijuana with Intent to Distribute, in violation of 21 U.S.C. § 841(a)(1), and one of count of Possession of a Firearm by a Convicted Felon, in violation of 18 U.S.C. § 922(g)(1). After Yansane and his counsel reviewed the Presentence Investigation Report ("PSR") and learned, to their surprise, that Yansane is not a United States citizen, Yansane moved to withdraw his guilty plea. The Court held a hearing on the Motion to Withdraw Guilty Plea on January 23, 2019. For the reasons set forth below, the Motion is granted.

BACKGROUND

The following facts are undisputed. Yansane was born in Sierra Leone in 1983. When Yansane was six years old, he and his family moved to the United States. Specifically, in October 1989, Yansane, traveling with his mother and brother, was lawfully admitted into the United States on a nonimmigrant B-2 visa which expired in April 1990 when Yansane was still six years old. Nevertheless, since 1989, Yansane has lived his entire life in the United States, has never visited Sierra Leone, and has no meaningful ties to that country. Both of his parents are now United States citizens, and, prior to reviewing the PSR, Yansane always believed that he was a United States citizen.

Apparently, there was some confusion between Yansane's parents, who divorced in the 1990s when Yansane was still a child, over submission of a citizenship application on behalf of Yansane. At the time of her meeting with the United States Probation Officer as part of the presentence investigation, Yansane's mother also believed Yansane to be a United States citizen and thought that his father, who was sporadically involved in Yansane's upbringing, had taken care of the citizenship application process for Yansane. However, a review of immigration records prompted by the presentence investigation revealed no documentation of any citizenship application submitted on behalf of Yansane by his father. Over the past 20 years, Yansane has been convicted of multiple of crimes in Maryland state courts and the Superior Court of the District of Columbia, but, throughout all of those proceedings, no court or law enforcement agency, state or federal, has ever determined that Yansane is not a United States citizen or notified him that he might face deportation for his crimes.

On August 9, 2017, Yansane was charged in a two-count Indictment with Possession of Marijuana with Intent to Distribute, in violation of 21 U.S.C. § 841(a)(1), and Possession of a Firearm by a Convicted Felon, in violation of 18 U.S.C. § 922(g)(1). At Yansane's initial appearance on August 29, 2017, an attorney from the Office of the Federal Public Defender was appointed to represent Yansane. Yansane advised his counsel that he was not born in the United States but that he was a United States citizen. The Government and the United States Probation and Pretrial Services Office also believed that Yansane was a United States citizen.

The Government and Yansane's counsel then engaged in plea negotiations and jointly requested three extensions of the pre-trial motions deadline to allow time for their discussions. On March 15, 2018, the parties executed a plea agreement. Among the provisions of the plea agreement was the following:

By pleading guilty, the Defendant will be giving up certain valuable civil rights and may be subject to deportation or other loss of immigration status. The Defendant recognizes that if he is not a citizen of the United States, pleading guilty may have consequences with respect to his immigration status. Under federal law, convictions for a broad range of crimes can lead to adverse immigration [consequences], including automatic removal from the United States. Removal and other immigration consequences are the subject of a separate proceeding, however, and the Defendant understands that no one, including his attorney or the Court, can predict with certainty the effect of a conviction on immigration status. Defendant nevertheless affirms that he wants to plead guilty regardless of any potential immigration consequences.

Plea Agreement ¶ 4(h), ECF No. 47.

The Court then held a guilty plea hearing under Federal Rule of Criminal Procedure 11 on April 17, 2018. During the hearing, the Court asked Yansane if he was a United States citizen, and Yansane stated that he was. The Court also advised Yansane:

THE COURT: I know you stated you are a U.S. citizen, but I should tell you that if someone is not a U.S. citizen, that person, by pleading guilty could have—there could be an impact on that person's residency or status with immigration authorities, including that it may provide a basis for deportation or exclusion or may prevent someone from becoming a U.S. citizen. Do you understand that?

THE DEFENDANT: I do.

Plea Hrg. Tr. at 16, ECF No. 68. The Court accepted Yansane's plea of guilty to both counts of the Indictment and issued an expedited sentencing order, setting sentencing for June 11, 2018.

On May 24, 2018, the probation officer issued the PSR, which, as discussed above, advised Yansane, his counsel, and the Government for the first time that Yansane is not actually a United States citizen, he does not have legal status in the United States, and a U.S. Immigration and Customs Enforcement detainer was forthcoming. After promptly visiting Yansane and showing him the PSR, Yansane's counsel filed a Consent Motion to Continue Sentencing on May 29, 2018, in which he stated that the PSR "contained an unexpected and potentially very serious assertion" regarding Yansane's history which would "require investigation, including obtaining records." Consent Mot. Continue at 1, ECF No. 51. The Court granted the motion and continued the sentencing hearing.

On June 21, 2018, Yansane's counsel filed the pending Motion to Withdraw Guilty Plea and a Motion to Withdraw as Counsel, noting a conflict of interest based upon Yansane's likely assertion that he did not have "the close assistance of competent counsel" in entering his plea. Mot. Withdraw Plea at 1, ECF No. 53. The Court granted counsel's request to withdraw, and new counsel was appointed to represent Yansane. The Court permitted Yansane's new counsel to file a supplemental brief in support of the Motion to Withdraw Guilty Plea, which is now ripe for disposition.

The Court held a hearing on the pending Motion on January 23, 2019. Yansane's counsel offered to present one witness, Yansane's former roommate Abdul Sesay, and represented that in support of Yansane's argument that he should be permitted to withdraw his guilty plea because the police had entered his residence before the search warrant was executed, Sesay would testify to the time that the police entered the residence shared by Yansane and Sesay to conduct the search which provided the basis for Yansane's arrest. Yansane's counsel acknowledged, however, that Sesay would offer no new information beyond the facts contained in his Declaration, attached to Yansane's reply memorandum on the Motion. The Government objected to Sesay's testimony on the ground that it would not provide a basis to grant the Motion, but acknowledged that for purposes of the Motion, it would not dispute that Sesay would testify to the facts contained in his Declaration. Because the parties agreed that the Court could consider the Declaration in resolving the Motion, the Court determined that Sesay's testimony would not be necessary. Thus, no witnesses testified at the hearing, but the Court heard argument from both parties and took the Motion under advisement.

DISCUSSION

In the Motion, Yansane requests that he be permitted to withdraw his guilty plea because he did not know at the time that he entered the guilty plea that he was not a United States citizen, and his attorney did not verify his immigration status or advise him of the immigration consequences he faced. He also argues that he should be permitted to withdraw his guilty plea because Sesay's testimony would establish that the search of his residence violated the Fourth Amendment to the United States Constitution and that a motion to suppress would be granted, such that he is legally innocent. For the reasons set forth below, the Court grants the Motion.

I. Legal Standard

Prior to sentencing, a defendant may withdraw a previously entered plea of guilty if there is "a fair and just reason for requesting the withdrawal."

Fed. R. Crim. P. 11(d)(2)(B) ; United States v. Ubakanma, 215 F.3d 421, 424 (4th Cir. 2000). The defendant has the burden to show that such a fair and just reason exists. United States v. Moore, 931 F.2d 245, 248 (4th Cir. 1991). This is a heavy burden to carry because "[i]f an appropriately conducted Rule 11 proceeding is to serve a meaningful function, on which the criminal justice system can rely, it must be recognized to raise a strong presumption that the plea is final and binding." United States v. Lambey, 974 F.2d 1389, 1394 (4th Cir. 1992) (en banc ).

The factors the Court should consider on whether to permit withdrawal of a guilty plea are:

1. Whether the defendant has offered credible evidence that his plea was not knowing and voluntary;

2. Whether the defendant has credibly asserted his legal innocence;

3. Whether there has been a delay between the entering of the plea and the filing of the motion;

4. Whether the defendant has had the close assistance of competent counsel;

5. Whether withdrawal will cause prejudice to the government; and

6. Whether withdrawal of the plea would inconvenience the court and waste judicial resources.

See Moore...