SABINO DEL ROSARIO, PETITIONER V. UNITED STATES OF AMERICA No. 90-5173 In The Supreme Court Of The United States October Term, 1990 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The District Of Columbia Circuit Brief For The United States In Opposition OPINIONS BELOW The opinion of the court of appeals (Pet. App. I) is reported at 902 F.2d 55. The opinion of the district court (Pet. App. II) is unreported. JURISDICTION The judgment of the court of appeals was entered on April 24, 1990. The petition for a writ of certiorari was filed on July 18, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTIONS PRESENTED 1. Whether petitioner, an alien, was denied effective assistance of counsel because his attorney failed to advise him that he might be deported as a result of his plea of guilty on a drug charge. 2. Whether petitioner should have been allowed to withdraw his guilty plea because the prosecutor allegedly misled the court into believing that petitioner would not be deported as a result of his guilty plea. 3. Whether the district court violated Fed. R. Crim. P. 11 by allegedly failing either to inform petitioner of the nature of the charge against him or to ascertain a sufficient factual basis for the plea. STATEMENT On October 21, 1986, a one-count indictment was returned in the United States District Court for the District of Columbia, charging petitioner with possession of cocaine with intent to distribute it, in violation of 21 U.S.C. 841(a)(1). On February 26, 1987, petitioner pleaded guilty. He was sentenced to an indeterminate term of four to twelve months'imprisonment, to be followed by a three-year term of special parole. Petitioner did not appeal his conviction. On October 31, 1988, petitioner filed motions under Fed. R. Crim. P. 32(d) and 28 U.S.C. 2255 to withdraw his guilty plea or, in the alternative, to vacate his conviction. After an evidentiary hearing, the district court denied the motions (Pet. App. II). The court of appeals affirmed (Pet. App. I). 1. On September 25, 1986, police officers conducted a warrant-authorized search of a basement apartment that had been rented by petitioner and codefendant Antonia Sanchez-Diaz (Gov't C.A. Br., App. E, p. 2). During the search, the officers seized approximately 12 ounces of cocaine base, approximately 8 ounces of cocaine powder, some marijuana, various drug paraphernalia, and more than $2,700 in cash. Petitioner and Sanchez-Diaz were arrested at the scene. In a spontaneous statement to the officers, petitioner admitted that the drugs belonged to him. Ibid. 2. On February 26, 1987, petitioner pleaded guilty to a single count of possession of cocaine with intent to distribute it. /1/ He also agreed to cooperate with the government in its investigation of others involved in the drug trafficking organization; in return, the government promised to apprise the sentencing court of the extent of petitioner's cooperation and to refrain from making a recommendation as to the sentence that he might receive (RR, Tab B, pp. 2-3). /2/ At the ensuing Rule 11 hearing, the district court ascertained that petitioner was aware of the procedural rights that he would waive as a consequence of his plea (id. at 17-18), that he had discussed the matter with counsel to his satisfaction (id. at 21), and that he was acting freely and voluntarily (id. at 21-22). The court also ascertained that petitioner was aware of the maximum penalty and that no representations had been made concerning the actual sentence that he would receive (id. at 21). Finally, after the prosecutor summarized the government's evidence against petitioner, the court elicited petitioner's agreement that he had no dispute with any of the facts included in the prosecutor's proffer (id. at 19-21). The court then accepted petitioner's guilty plea (id. at 22-23). There was no discussion during the plea hearing of the possibility that petitioner might be subject to deportation as an indirect consequence of his guilty plea. Petitioner was sentenced on March 12, 1987. At the sentencing hearing, the prosecutor advised the court that, since he had entered his plea of guilty, petitioner had re-acknowledged his role in the offense to the probation office (RR, Tab C, pp. 3-4) /3/ and that he also "ha(d) talked extensively with the police officers, that he ha(d) provided information that has been corroborated, and (that) * * * the officers * * * anticipate(d) making arrests based on that information" (id. at 4). In addition, the probation officer stated to the court -- with the concurrence of both the prosecutor and defense counsel -- that the immigration authorities had not yet commenced deportation proceedings against petitioner, but that they might do so after the completion of the criminal case (id. at 6-7). Despite this, petitioner did not allude to the possibility of deportation during allocution (id. at 14). 3. Following petitioner's conviction and sentencing, deportation proceedings were initiated against him. /4/ Petitioner thereafter moved to withdraw his guilty plea, alleging that he was never informed by the court or counsel that he could be deported upon conviction and that he would not have entered the plea if he had been aware of the possibility of deportation. See Gov't C.A. Br., App. A & C. At the hearing on his motion, petitioner testified that an inmate warned him while he was in jail that he would be deported if his attorney did not "do a deal with the court" (RR, Tab D, p. 12). Petitioner stated that he then asked his attorney whether he would lose his green card and be deported. According to petitioner, his attorney assured him that he would not be deported because he was legally present in the United States (id. at 10-12). Petitioner testified that he would not have pleaded guilty if he had known about the possibility of deportation (id. at 18). Petitioner further testified that he was innocent and that he had lied in admitting his guilt to the probation office, at the plea hearing, and at the sentencing hearing (RR, Tab D, pp. 14-17, 20-23). Petitioner explained that he pleaded guilty only to avoid the prolonged incarceration that his attorney told him he would face if he were convicted after contesting his guilt at trial (id. at 14-17). Petitioner's counsel disputed this version of events. He testified that petitioner did not inquire about his immigration status while plea negotiations were under way; nor did counsel discuss the subject of deportation with petitioner (id. at 5, 7-8). Although counsel testified that he told petitioner that he might be treated more leniently if he pleaded guilty and cooperated with the government, counsel stated that he did so because he believed that the government's case was strong and that there was a factual basis to support such a plea (id. at 25-27, 29). Counsel also testified that petitioner understood the direct consequences of his guilty plea and was not reluctant to enter it (id. at 6-7). 4. The district court denied petitioner's motion to withdraw his guilty plea or to vacate his sentence (Pet. App. II). First, the court found that deportation was merely a collateral consequence of a guilty plea. Although it might be "advisable" for the court to inform a pleading alien of the possibility of deportation, Fed. R. Crim. P. 11 does not obligate district judges to inform defendants of the immigration consequences of their plea during plea hearings. Pet. App. II, 3-4. The court stated, however, that the failure of counsel to advise an alien defendant regarding the immigration consequences of a plea could constitute ineffective assistance of counsel that would support vacation of a guilty plea. Pet. App. II, 9. In the circumstances of this case, the court found counsel's conduct in failing to advise petitioner of the possibility of deportation to be "objectively unreasonable." Pet. App. II, 12. Despite this, the court held that petitioner had failed to prove that he was prejudiced by counsel's conduct. As the court stated, a "colorable claim of innocence" is required to vacate a guilty plea because of ineffective assistance of counsel. Pet. App. II, 10-11. Specifically pointing to the "overwhelming evidence of (petitioner's) guilt" and to petitioner's inculpatory admissions to the probation officer, the court found that petitioner's claim of innocence was not credible. Pet. App. II, 13. After concluding that "(t)here (wa)s no reasonable probability that (petitioner) would have been acquitted, and no reasonable probability that the deportation consequences for (petitioner) * * * would have been any different," the court denied petitioner's motion. Ibid. 5. The court of appeals affirmed. Pet. App. I. It held that petitioner was not deprived of the effective assistance of counsel due to his attorney's failure to advise him that deportation was a possible consequence of a plea-based conviction. First, the court decided that, since "a defendant's incomplete awareness of collateral consequences of a guilty plea does not render that plea involuntary," counsel's performance was not constitutionally deficient. Pet. App. I, 8-9. The court found, in addition, that petitioner was not prejudiced by the lack of advice concerning this collateral consequence. First, his innocence was belied by its belated assertion and the strong evidence of his guilt. Also, as demonstrated by his failure to allude to the matter of deportation during allocution, there was "no evidence * * * that (petitioner) would have placed any particular emphasis on the danger of deportation at the time of the plea decision." Pet. App. I, 5-7. The court of appeals further held that the district court's failure to comply with the letter of all of the requirements of Fed. R. Crim. P. 11 during the plea hearing did not entitle petitioner to collateral relief. As the court of appeals stated, although the court did not detail to petitioner the elements of the offense, petitioner was informed that he was charged with possession of cocaine with intent to distribute. Also, the prosecutor thereafter made a detailed recitation of the factual basis for the charge. Pet. App. I, 9-10. Likewise, although petitioner was not informed that he might receive a special parole term, the court of appeals noted that he was informed of the maximum sentence available and that the sentence actually imposed, together with the special parole term, was within that maximum range. Pet. App. I, 10-11. The court of appeals concluded that, in such circumstances, the Rule 11 violations amounted only to technical defects that did not result in a manifest miscarriage of justice. ARGUMENT 1. Petitioner contends (Pet. 8-10) that he was deprived of the effective assistance of counsel at his plea hearing because counsel failed to advise him that deportation might result from his guilty plea. We disagree. a. As this Court has stated, in order to establish a claim of ineffective assistance of counsel, a convicted defendant must show both that "counsel's representation fell below an objective standard of reasonableness" and that "there is a reasonable probability that, but for counsel's unprofessional error, the result of the proceedings would have been different." Washington v. Strickland, 466 U.S. 668, 687-688 (1984). And, with respect to claims of ineffective assistance during plea proceedings, "in order to satisfy the 'prejudice' requirement, the defendant must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Hill v. Lockhart, 474 U.S. 52, 59 (1985). As the court of appeals correctly concluded, petitioner failed to meet either prong of the Strickland test. For a guilty plea to be voluntary, it is necessary only that "the accused () be 'fully aware of the direct consequences'" of his plea. Brady v. United States, 397 U.S. 742, 755 (1970). The possibility that a pleading defendant may subsequently be deported constitutes merely an indirect and collateral consequence of a guilty plea. Accordingly, as every court of appeals to consider the question has held, Fed. R. Crim. P. 11(c) does not require that pleading defendants be informed of the possibility of deportation when they plead guilty. See, e.g., United States v. George, 869 F.2d 333 (7th Cir. 1989); United States v. Romero-Vilca, 850 F.2d 177, 179 (3d Cir. 1988); United States v. Galivan, 761 F.2d 226, 228 n. 7 (5th Cir. 1985); Nunez-Cordero v. United States, 533 F.2d 723 (1st Cir. 1976); Fruchman v. Kenton, 531 F.2d 946, 948 (9th Cir.), cert. denied, 429 U.S. 895 (1976); United States v. Santelises, 509 F.2d 703, 704 (2d Cir. 1975). Because deportation is a collateral consequence that does not reasonably relate to the voluntariness of an accused's decision to plead guilty, every court of appeals to have considered the question has uniformly held that the failure of defense counsel to advise his client of the collateral consequence of possible deportation is not objectively unreasonable conduct and, hence, cannot rise to the level of constitutionally ineffective assistance. See United States v. George, 869 F.2d 333, 336-338 (7th Cir. 1989); United States v. Yearwood, 863 F.2d 6, 8 (4th Cir. 1988); United States v. Campbell, 778 F.2d 764, 767 (11th Cir. 1985); United States v. Galivan, 761 F.2d 226, 228 (5th Cir. 1985); United States v. Santelises, 509 F.2d 703, 704 (2d Cir. 1975). /5/ As the court below stated, counsel did not affirmatively mislead petitioner concerning the matter of deportation. Nor did he refuse to respond to inquiries concerning petitioner's immigration status (Pet. App. I at 8-9, n. 2); counsel merely failed to address a collateral subject that he reasonably regarded as having no direct bearing on the voluntariness of petitioner's contemplated plea. In such circumstances, there was no basis for faulting defense counsel's performance. /6/ b. In Hill v. Lockhart, 474 U.S. at 60, this Court stated that "prejudice" is established under Strickland only if there is "a reasonable probability that, but for counsel's errors, (the defendant) would not have pleaded guilty and would have insisted on going to trial" -- an inquiry that "will depend in large part on a prediction whether the * * * defense likely would have succeeded at trial." See also, United States v. Nino, 878 F.2d 101, 105 (3d Cir. 1989); United States v. Galivan, 761 F.2d at 228-229; Evans v. Meyer, 742 F.2d 371, 375 (7th Cir. 1984). As the courts below found, there was no reasonable probability that petitioner would have insisted on going to trial had he been aware of the possibility of deportation upon conviction; thus, even if counsel's performance was constitutionally deficient, petitioner was not prejudiced by counsel's failure to advise him of the possibility of deportation. This factbound determination, concurred in by two courts, does not warrant further review by this Court. See United States v. Doe, 465 U.S. 605, 614 (1984); United States v. Reliable Transfer Co., 421 U.S. 397, 401 n. 2 (1975); Berenyi v. Immigration Director, 385 U.S. 630, 635 (1967). As the court of appeals noted (Pet. App. I, 5), petitioner was aware at the time of sentencing that he faced possible deportation; nonetheless, petitioner "did not make * * * any assertion that this affected his decision, though he was offered and exercised his right of allocution." Cf. United States v. Babineau, 795 F.2d 518, 521 (5th Cir. 1986) (failure of the defendant to attempt to withdraw plea at time of sentencing indicates that a Rule 11 violation did not influence his decision to plead guilty); Lilly v. United States, 792 F.2d 1541, 1544-1545 (11th Cir. 1986) (same). Moreover, although petitioner ultimately asserted a claim of innocence and sought to withdraw his plea, he did not do so "until more than seventeen months after his (sentencing) hearing and some months after he had been served notice of the deportation action against him." This fact further diminished the likelihood that his decision to plead was affected by awareness of the possibility that he might be deported (Pet. App. I, 6). In addition, there is absolutely no indication in the record -- other than petitioner's claim of innocence, which was rejected by the district court as incredible (Pet. App. II, 13) -- that the final outcome of his case would have been any different had petitioner known about the possibility of deportation when he pleaded guilty. Simply put, the evidence against petitioner was overwhelming, especially in light of petitioner's credited, inculpatory statements to the probation officer and his cooperation with law enforcement officers in building cases against his cohorts. That evidence would almost certainly have resulted in a conviction had he gone to trial. Since "(t)he record * * * is replete with evidence of (petitioner's) guilt," it is likely that he would have pleaded guilty even if he had been aware that deportation was a possibility following conviction by plea or after trial. See United States v. Nino, 878 F.2d at 105; United States v. Galivan, 761 F.2d at 228-229. In such circumstances, petitioner has not shown that he was prejudiced by counsel's allegedly ineffective assistance. 2. Petitioner also asserts (Pet. 13-15) that his conviction should be vacated because, at the time his guilty plea was entered, the district court failed to inform him of the elements of the offense and to ensure that there was a factual basis for his plea, as required by Fed. R. Crim. P. 11(c)(1) and (f). Petitioner did not raise the issue of a Rule 11 violation at any time during the plea and sentencing proceedings, nor did he raise it on direct appeal; instead, he first attacked the court's technical compliance with the terms of Rule 11 in a collateral proceeding. As this Court held in United States v. Timmreck, 441 U.S. 780 (1979), convicted defendants may not collaterally attack their convictions or sentences because of procedural errors during guilty plea proceedings unless they affirmatively demonstrate the existence of "a fundamental defect which inherently results in a complete miscarriage of justice, ()or an omission inconsistent with the rudimentary demands of fair procedure." Id. at 783, quoting Hill v. United States, 368 U.S. 424, 428 (1962). /7/ In keeping with Timmreck's reasoning, the courts of appeals have refused to accord collateral relief to convicted defendants who have not had the nature of the charges expressly explained to them, when that violation of Rule 11 did not result in a miscarriage of justice. See, e.g., Harvey v. United States, 850 F.2d 388, 394-395 (8th Cir. 1988); United States v. Horsley, 599 F.2d 1265, 1268-1269 (3d Cir.), cert. denied, 444 U.S. 865 (1979). As in those cases, no miscarriage of justice occurred from the instant Rule 11 technical violation. As the court of appeals stated, the district court "did plainly inform (petitioner) that he was charged with possession of cocaine with the intent to distribute" and "further required the United States to demonstrate the factual basis for the plea," after which petitioner "acknowledged the accuracy of the evidentiary presentation." Pet. App. I, 9-10. Moreover, defense counsel testified that he specifically "advised (petitioner) as to the nature of the charges" (RR, Tab D, p. 6). Finally, petitioner does not maintain that he was, in fact, unaware of the nature of the charge against him or that he would not have pleaded guilty but for the Rule 11 violation; he asserts only that the court erred in failing expressly to inform him of the elements of the offense. /8/ In such circumstances, petitioner is not entitled to collateral relief because of a technical violation of Rule 11. CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General ROBERT S. MUELLER, III Acting Assistant Attorney General ROBERT J. ERICKSON Attorney SEPTEMBER 1990 /1/ Codefendant Sanchez-Diaz also pleaded guilty at the same time to a charge of simple possession of cocaine (RR, Tab B, pp. 5-15). /2/ 1 "RR" refers to the Record References filed by petitioner in the court of appeals. /3/ Both petitioner (id. at 14) and his attorney (id. at 5, 8-10) acknowledged petitioner's factual guilt at the sentencing hearing. See also Gov't C.A. Br., App. D; id., App. F at 79. /4/ Under 8 U.S.C. 1251(a)(11), an alien convicted of a drug offense "shall, upon the order of the Attorney General, be deported." /5/ This case is therefore unlike Downs-Morgan v. United States, 765 F.2d 1534 (11th Cir. 1985), and People v. Correa, 465 N.E. 2d 507 (Ill. 1984), upon which petitioner relies (Pet. 9), in which the defendants were affirmatively misled as to the possibility of deportation by their attorneys. See also United States v. DeFreitas, 865 F.2d 80, 82 (4th Cir. 1989). Petitioner also incorrectly suggests that there is a conflict between the court of appeals decision and the decisions in Michel v. United States, 506 F.2d 461 (2d Cir. 1974) and Lyons v. Pearce, 694 P. 2d 969 (Ore. 1985). In Michel, the Second Circuit only addressed the question of whether the failure of the trial judge to inform an alien of the possibility of deportation as a consequence of his plea required withdrawal of the plea. In ruling that withdrawal was not justified, the court suggested in passing that providing such information was the responsibility of counsel, not the court, but said nothing about whether failure to supply the information would constitute ineffective assistance of counsel or would render the plea involuntary. In Lyons v. Pearce, likewise, the court did not rule on the question of whether counsel's failure to inform his client of the immigration consequences of a plea would amount to ineffective assistance or otherwise warrant withdrawal of a plea. In People v. Pozo, 746 P.2d 523, 528-529 (Colo. 1987), the Supreme Court of Colorado sitting en banc, with three judges dissenting, reversed a conviction and remanded for a hearing on the defendant's claim that his attorney's failure to discuss the importation consequences of his guilty plea constituted ineffective assistance of counsel. To our knowledge, this is the only state court of last resort to hold that counsel's failure to inform a client of the possibility of deportation -- as opposed to an affirmative misrepresentation on that question -- might warrant withdrawal of a guilty plea on the ground of involuntariness. However, that decision does not conflict with the court of appeals' decision in this case. The instant case was resolved on the independent ground that, even assuming that counsel rendered constitutionally defective assistance by failing to inform petitioner of the possibility that he might be deported as a collateral consequence of pleading guilty, petitioner was nevertheless not entitled to relief because he failed to establish that he was prejudiced by counsel's conduct. Accordingly, this case presents no occasion to resolve any tension between the approach adopted by the federal courts and the decision in Pozo. Petitioner further alleges, based on a colloquy at the sentencing hearing (see RR, Tab C, at 6-7), that the prosecutor misled the judge into believing that the sentence imposed would not result in deportation. Such claim does not establish either that petitioner's counsel was incompetent or that petitioner should be allowed to withdraw his plea. Nor is there anything in the record to indicate that the court was influenced by this exchange. First of all, the colloquy at sentencing was "inconclusive" as to the exact triggering mechanism for deportation proceedings (Pet. App. I, 5); it was understood by all concerned that the possibility of deportation was open and would be considered after completion of the criminal case (RR, Tab C, p.6). Furthermore, there is no reason to believe that the court sentenced petitioner in a manner so as to avoid the possibility of deportation, since the court envisioned that petitioner's codefendant who pleaded guilty to a lesser offense would be deported. /6/ Although, as petitioner notes (Pet. 11-12), deportation is a harsh collateral consequence, it is no less so than a wide range of other collateral consequences about which a defendant need not be advised during plea proceedings. See, e.g., United States v. Bouthot, 878 F.2d 1506, 1511-1512 (1st Cir. 1989) (use of state plea in later federal prosecution); Holmes v. United States, 876 F.2d 1545 (11th Cir. 1989) (parole ineligibility); United States v. Jordan, 870 F.2d 1310, 1316-1318 (7th Cir. 1989) (use of state plea in later federal prosecution); United States v. Woods, 870 F.2d 285, 288 (5th Cir. 1987) (use of plea-based conviction for sentencing enhancement after later conviction); Torrey v. Estelle, 842 F.2d 234 (9th Cir. 1988) (possible ineligibility for youth treatment); United States v. Persico, 774 F.2d 30, 33 (2d Cir. 1985) (use of plea-based conviction as predicate offense in later RICO prosecution); United States v. Suter, 755 F.2d 523, 525 (7th Cir.), cert. denied, 471 U.S. 1103 91985) (possible civil judgments and penalties); United States v. Crowley, 529 F.2d 1066 (3d Cir. 1975), cert. denied, 425 U.S. 995 (1976) (loss of civil service employment); Redwine v. Zuckert, 317 F.2d 336 (D.C. Cir. 1963) (undesirable military discharge). Clearly, then, as the court below correctly stated, deportation is not "so unique as to warrant an exception to the general rule that a defendant need not be advised of the (collateral) consequences of a guilty plea." Pet. App. I at 8 (quoting United States v. Campbell, 778 F.2d at 769). /7/ In Timmreck, the district court failed to inform the defendant that he might receive a mandatory special parole term as a result of his plea-based conviction, and the court thereafter imposed such a parole term. However, "(n)o objection * * * was raised at the time, and (the defendant) did not take an appeal from his conviction." 441 U.S. at 782. In refusing to find that the Rule 11 violation constituted a fundamental defect justifying collateral relief, the Court observed that the defendant had only asserted "a technical violation of the Rule," but had not asserted that he was actually unaware of the special parole term, or that, "if he had been properly advised by the trial judge, he would not have pleaded guilty." Id. at 784. /8/ Henderson v. Morgan, 426 U.S. 637 (1976), is therefore inapposite. In that case, the Court concluded that a guilty plea had been involuntarily entered where the district court, after a hearing, "found as a fact that the element of intent was not explained to the (defendant)." 426 U.S. at 647. Characterizing the circumstances in Henderson as "unique," the Court expressly distinguished cases, like the instant one, in which there was some explanation of the charge by the trial judge, or a representation by defense counsel that the defendant has been advised of the nature of the offense. Ibid.