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U.S.A v. Perez-Avila

United States District Court, C.D. California

November 21, 2014

U.S.A
v.
Ramiro Perez-Avila.

CIVIL MINUTES - GENERAL

JOHN A. KRONSTADT, District Judge.

Proceedings: (IN CHAMBERS) UNDER SEAL ORDER RE DEFENDANT'S MOTION TO WITHDRAW PLEA (Dkt. 45)

I. Introduction

On April 17, 2014, Ramiro Perez-Avila ("Defendant") pleaded guilty to a violation of 8 U.S.C. §§ 1326(a), (b)(2), Illegal Alien Found in the United States Following Deportation. Dkt. 22. On August 13, 2014, a Modified Presentence Report ("PSR") was filed. Dkt. 29. This report stated that Defendant's advisory guideline sentencing range is 46 to 57 months. PSR, Dkt. 29 at 10. On October 20, 2014, following the appointment of new counsel, Defendant filed a motion to withdraw his guilty plea (the "Motion"). Dkt. 47. The Government opposed the Motion. Dkt. 51. No reply was filed. A hearing on the Motion was conducted on November 13, 2014 and the matter was taken under submission. For the reasons stated in this Order, the Motion is DENIED.

II. Analysis

A. Legal Standard

A defendant may withdraw a guilty plea after it has been accepted and filed, but before sentencing if "the defendant can show a fair and just reason for requesting the withdrawal." United States v. Ortega-Ascanio, 376 F.3d 879, 883 (9th Cir. 2004) (citing Fed. R. Crim. P. 11(d)(2)(B)). "[T]he decision to allow withdrawal of a plea is solely within the discretion of the district court." Id. (brackets in original). "The defendant has the burden to show a fair and just reason for withdrawal of a plea." Id. "While the defendant is not permitted to withdraw his guilty plea simply on a lark, ' the fair and just' standard is generous and must be applied liberally." United States v. McTiernan, 546 F.3d 1160, 1167 (9th Cir. 2008) (internal citation omitted). "[E]ach case must be reviewed in the context in which the motion arose to determine whether, ultimately, a "fair and just" reason exists." Id. As McTiernan explained:

Although the terms "fair and just" lack any pretense of scientific exactness, guidelines have emerged in the appellate cases for applying this standard. Whether the movant has asserted his legal innocence is an important factor to be weighed, as is the reason why the defenses were not put forward at the time of original pleading. The amount of time which has passed between the plea and the motion must also be taken into account.

Id. (citing Fed. R. Crim. P. 32 advisory committee's note (1983)).

"Fair and just reasons for withdrawal include inadequate Rule 11 plea colloquies, newly discovered evidence, intervening circumstances, or any other reason for withdrawing the plea that did not exist when the defendant entered his plea." Ortega-Ascanio, 376 F.3d at 883.

"Erroneous or inadequate legal advice may also constitute a fair and just reason for plea withdrawal, even without a showing of prejudice, when the motion to withdraw is made presentence." McTiernan, 546 F.3d at 1167. The defendant has the "burden [] to show that proper advice could have at least plausibly motivated a reasonable person in [the defendant's] position not to have pled guilty had he known about the [grounds for a potential defense] prior to pleading." Id . (citing United States v. Garcia, 401 F.3d 1008, 1011-12 (9th Cir.2005)). Where such a claimed, potential defense is "non-viable, " a failure by counsel to discuss it with a defendant prior to the entry of a guilty plea is not a "fair and just" reason to allow the defendant to withdraw it. Thus, such a hypothetical discussion "would not plausibly lead a reasonable person to decide not to plead guilty." United States v. Betts, 458 F.App'x 630, 632 (9th Cir. 2011); United States v. Davenport, 270 F.App'x 671, 673 (9th Cir. 2008).

The Ninth Circuit has concluded that a defense is "non-viable" where "[u]nder any reasoned analysis of the facts and circumstances of this case, " the requirements for the defense could not be met. Betts, 458 F.App'x at 632. In Betts, the defendant argued that he should be permitted to withdraw his guilty plea because his counsel had failed to inform him of a plausible due process defense. He argued that, such a defense was plausible because he was a "slight conspirator [in a bank robbery] who could not foresee the use of a firearm in the robbery." The Ninth Circuit rejected this argument, because "[u]nder any reasoned analysis of the facts and circumstances of this case, Betts' involvement in the bank robbery was more than slight.'" Id . Thus, the defense was non-viable.In Davenport, 270 F.App'x at 673, the defendant moved to withdraw his guilty plea, in part, "on the ground that Davenport was unaware of the illegal nature of child pornography." The Ninth Circuit rejected this argument, stating that "Davenport's counsel's failure to inform Davenport of the proffered defense based on ignorance of illegality cannot be faulted because the ignorance defense is not colorable." Id.

Furthermore, the "fair and just" standard is not met when a defendant has a change of heart, even if it is good faith. United States v. Ensminger, 567 F.3d 587, 593 (9th Cir. 2009). Nor is it met if the defendant later concludes that the Government's case has less force than he thought it had at the time the plea was entered. United States v. Showalter, 569 F.3d 1150, 1155-56 (9th Cir. 2009). That a sentence is more severe than anticipated at the time the plea was entered is also not generally recognized as a basis for its withdrawal. United States v. Briggs, 623 F.3d 724, 728 (9th Cir. 2010).

In considering a motion to withdraw a guilty plea, a defendant's testimony at a plea hearing conducted under Fed. R. Crim. P. 11 may be given greater weight than later, contrary assertions by the defendant as to the underlying matters. United States v. Castello, 724 F.2d 813, 815 (9th Cir. 1984) (court may credit defendant's testimony at Rule 11 hearing over defendant's subsequent allegations in an affidavit filed with her motion asserting that she only entered the guilty plea "because the government threatened to prosecute [her] as a special dangerous offender' if the case were tried"); see also Shah v. United States, 878 F.2d 1156, 1162 (9th Cir. 1989) ("Solemn declarations in open court carry a strong presumption of verity."). However, "the fact that a plea was voluntary, knowing, and intelligent cannot count against a defendant's attempt to withdraw it prior to sentencing, unless the defendant's only asserted "fair and just reason" for withdrawing the plea is lack of voluntariness itself." United States v. Garcia, 401 F.3d 1008, 1012 (9th Cir. 2005) (emphasis in original).

B. Application

1. Factual Claims

The basis for the Motion is that Defendant "does not think that he was adequately advised regarding his citizenship status, and he would have presented this issue at trial." Dkt. 45 at 4. Defendant now contends that he is a United States citizen, which is contrary to what he admitted during the Rule 11 colloquy and in the plea agreement. In support of this position, in his brief in support of the Motion he relies on two documents produced by the Government as part of the pre-plea discovery process. Each has language that supports the claim that Defendant is a citizen of the United States, and not a citizen of Mexico.

The first document is a report of Defendant's criminal history record that is from the California Law Enforcement Telecommunications System ("CLETS"). Ex. A, Dkt. 45 at 2. The abbreviation "US" appears under the term "Citizenship" in this report.

The second document consists of FBI records about Defendant. On the first page of these materials, under the heading "PLACE OF BIRTH (STATE OR COUNTRY), " the word "MEXICO" appears, and under the heading "COUNTRY OF CITIZENSHIP" the word "MEXICO" appears a second time. On the second page of these materials, the term "MEX" appears next to the headings: "Country of Birth, " and "Countries of Citizenship." Id. at 4. However, on each of two later pages, below the word "CITIZENSHIP, " the words "UNITED STATES" appear. Id. at 6. However, on the first of these pages, just above this reference and beneath the words, "BIRTH PLACE, " the word "MEXICO, " appears.

Additional documents were presented by Defendant at the hearing. Dkt. 55. Exhibit 1 is a letter dated September 5, 2014 from the Social Security Administration written in response to an inquiry about benefits for prisoners. The letter does not state that Defendant is a United States citizen. Exhibit 2 is summons for jury service sent to Defendant by the Riverside County Superior Court. It does not state that Defendant is a United States citizen. Exhibit 3 is a report Defendant believes to have come from a United States Immigrations and Customs Enforcement file. This report has the same information included in the two documents submitted with the Motion. Specifically, below the word "CITIZENSHIP", the words "UNITED STATES" appear.[1]

Defendant contends that he was "denied the opportunity to fully discuss all the evidence in the case, and to explore with his [prior] counsel a possible defense based on the evident inconsistencies in the official records maintained by the government." Dkt. 45 at 6. Thus, Defendant argues that he "entered his guilty plea without having an adequate opportunity to explore a potential defense in this case." Id. Defendant's present counsel has submitted a declaration stating that she has spoken with Defendant's prior counsel, Deputy Public Defender Naeun Rim. Rim represented Defendant in this matter when he entered his written plea agreement and at the time of the Rule 11 hearing. According to Defendant's present counsel, in a conversation she had with Rim, Rim stated that she did not discuss with Defendant these two documents and any potential related defense prior to the entry of his plea of guilty. Dkt. 45 at 7.

2. Defendant Has Not Met his Burden

Defendant has failed to show a show a "fair and just" reason for withdrawal of his plea. At the outset of the April 17, 2014 hearing, after being sworn and responding to some initial questions from the Court, Defendant was found competent to participate. Defendant confirmed that he understood the nature of the charge under 8 U.S.C. §§ 1326(a), (b)(2) - Illegal Alien Found in the United States Following Deportation. He also stated that he understood the penalties, including the maximum sentence, which could be imposed if he entered a plea of guilty. Defendant also confirmed that he understood that the Sentencing Guidelines would be applied in determining his sentence, what the plea agreement provided as to sentencing recommendations, that his criminal history had not yet been calculated, and that no precise determination of his sentence could be made at that time. He also stated that he understood that, notwithstanding what others might have told him about a sentence, the Court could impose one more or less severe. Defendant confirmed that he understood all of these things as well as many other the rights he was waiving by entering the plea.

The lengthy colloquy also included the following exchange:

THE COURT: And do you understand that because you're not a citizen of the United States, your entry of this plea will cause you to be deported and removed from the United States and could result in the denial of naturalization of citizenship, the denial of residency status and denial of amnesty?
DEFENDANT: Yes, your Honor.

Defendant also admitted the factual basis of the plea agreement, which included that "Defendant, a citizen of Mexico was at all times relevant to this plea agreement an alien, that is, not a natural-born or naturalized citizen, or national, of the United States." Plea Agreement, Dkt. 16 ¶ 10. The plea colloquy included the following exchange:

THE COURT: All right. So did you do all of the things that are stated in the plea agreement?
DEFENDANT: Yes, your Honor.
THE COURT: Can you tell me in your own words what you did.
DEFENDANT: I came into the country illegally.
THE COURT: Did you do that more than once.
DEFENDANT: Yes, your Honor.
THE COURT: Do you that at a time that you knew you were not supposed to reenter?
DEFENDANT: Yes, your Honor.
THE COURT: And did you do - did you - were any - did any of these reentries occur after you had been convicted or pleaded guilty to the offense[s] that are stated?
DEFENDANT: Yes, your Honor.

Thus, while under oath, Defendant admitted that he was a Mexican citizen, and not a citizen of the United States. This is what he also admitted in the Plea Agreement. Dkt. 16 at 4 ("defendant was, at the time of the offense, an alien, that is, a person who is not a natural-born or naturalized citizen, or a national, of the United States." Those factual elements were read to the Defendant during the plea colloquy.

THE GOVERNMENT: If this case was to proceed to trial, the government would prove the following facts beyond a reasonable doubt: Defendant a citizen of Mexico was at all times relevant to the plea agreement an alien. That is a not a natural born or naturalized citizen or a national of the United States....
THE COURT: Thank you. Mr. Perez were you reading along again as Ms. Qwok was reading from the plea agreement?
DEFENDANT: Yes, your Honor.
THE COURT: Is everything that she read - read about you and your conduct true and correct?
DEFENDANT'S COUNSEL: May I have a moment your Honor?
THE COURT: Sure.
Pause in the proceedings
DEFENDANT'S COUNSEL: We're finished conferring your Honor.
THE COURT: That's fine. Have you had enough time to confer were with your counsel Mr. Perez?
DEFENDANT: Yes, your Honor.
THE COURT: Is there something that was read or appears in the plea agreement about your conduct that you think is not correct?
DEFENDANT: No, your Honor.
THE COURT: All right. So did you do all of the things that are stated in the plea agreement?
DEFENDANT: Yes, your Honor.

The Court remembers and has considered this testimony and continues to find it persuasive and entitled to substantial weight. Thus, Defendant's present assertion that he believes that he is a U.S. citizen is given less weight. Castello, 724 F.2d at 815.

Neither Exhibit 1 nor Exhibit 2, each of which Defendant presented at the hearing, supports his argument in support of the Motion. Thus, neither states that Defendant is a United States citizen. Exhibit 1 appears to be a form letter sent in response to Defendant's inquiry to the Social Security Administration regarding benefits for prisoners. Exhibit 2, which is the jury summons, does not expressly refer to Defendant's citizenship. That could be an inference from the letter because only U.S. citizens are qualified to serve as jurors. However, there are other explanations, including a potential error by the Superior Court as to his citizenship. Absent evidence as to the basis for any conclusion by that court that Defendant was a U.S. citizen, this summons has little evidentiary weight.

The Government has not explained the entries on the three law enforcement reports that refer to Defendant as a citizen of the United States. Rather, the Government presents what it characterizes as "overwhelming evidence" that Plaintiff is a citizen of Mexico and not of the United States. Dkt. 51 at 8. From this the Government argues that any defense predicated on the contrary entries in the two documents is "non-viable." As a result, that Defendant and his prior counsel did not discuss them prior to the entry of the plea agreement or the plea is not a "fair and just" reason for requesting withdrawal.

The evidence submitted by the Government includes:

1. Defendant's birth certificate, which states that he was born in Jalisco, Mexico. Dkt. 51, Ex. A;
2. In 1988, Defendant applied for, and received, temporary residence in the United States as a citizen of Mexico, who was born in Mexico, who had illegally entered the United States prior to January 1, 1982. Id., Ex. B;
3. In 1990, Defendant applied for, and received, legal permanent resident status as an alien who was born in Mexico. Id., Ex. C, D. Both of these documents state that Defendant's country of birth was Mexico; Exhibit D states that he is a citizen of Mexico;
4. In September 2001, Defendant was convicted in the Riverside County Superior Court of Inflicting Corporal Injury upon a Spouse or Cohabitant Resulting in Traumatic Condition in violation of Cal. Pen. Code § 273.5(a). Id., Ex. E. Consequently, Defendant was provided a notice that he was subject to removal from the United States under Cal. Pen. Code § 237(a)(2)(E)(i) because he was "an alien who at any time after entry has been convicted of a crime of domestic violence...." Id., Ex. F.;
5. In August 2002, an Immigration Judge issued a decision in a removal proceeding that ordered that Defendant be deported to Mexico based on the "documentary evidence" submitted by the Immigration and Naturalization Service. Id., Ex. H.;
6. Defendant was deported from the United States to Mexico on November 21, 2003 (id., Ex. I), May 16, 2005 (id., Ex. J), August 10, 2006 (id., Ex. K), and November 12, 2009 (id., Ex. L).
7. Defendant made a sworn statement on February 23, 2005, in which he declared that he is a citizen of Mexico, was born in Mexico, and that he has been previously deported. Id., Ex. M.
8. A U.S. Department of Homeland Security "Record of Deportable/Inadmissible Alien." Id., Ex. P. It states that following his arrest, Defendant "freely and willfully admits to being a citizen and national of Mexico by virtue of birth, illegally present in the United States."; and
9. Evidence of Defendant's 2008 conviction, following a plea of guilty in the Southern District of California, to a violation of 8 U.S.C. § 1325 for "illegal entry" to the United States. Id., Ex. Q.

All of this evidence was available to Defendant on March 13, 2014, when he signed his written plea agreement, and on April 17, 2014, when he entered his plea in this action. This is compelling evidence that Defendant is a citizen of Mexico and was at all times relevant to these proceedings. When it is considered in light of Defendant's statements during the plea colloquy and his admissions in the plea agreement, the internally inconsistent entries on the three documents on which Defendant now relies do not show that Defendant's prior counsel failed to consider with him what would have been a viable defense. Thus, "[u]nder any reasoned analysis of the facts and circumstances of this case, " Defendant could not have shown that he is a citizen of the United States. See Betts, 458 F.App'x at 632. Nor has Defendant shown that "proper advice could have at least plausibly motivated a reasonable person in [the defendant's] position not to have pled guilty had he known about the [grounds for a potential defense] prior to pleading." Id. (citing United States v. Garcia, 401 F.3d 1008, 1011-12 (9th Cir.2005)).

III. Conclusion

For the foregoing reasons, Defendant has not met his burden of demonstrating that there is a "fair and just" reason for the withdrawal of his plea of guilty. Therefore, the Motion is DENIED.

IT IS SO ORDERED.


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