United States v. Ayodeji Fashola , 630 F. App'x 337 ( 2016 )

Case: 15-20230 Document: 00513344362 Page: 1 Date Filed: 01/15/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 15-20230 FILED
Summary Calendar January 15, 2016
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
AYODEJI FASHOLA,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:13-CR-740
Before DAVIS, JONES, and GRAVES, Circuit Judges.
PER CURIAM: *
Ayodeji Fashola pleaded guilty to conspiring to commit mail and wire
fraud, see 18 U.S.C. §§ 1341, 1343, 1349, and to procuring his naturalization
unlawfully, see 18 U.S.C. § 1425(b). The Government moved to vacate his
naturalization because he pleaded guilty to procuring it unlawfully. See 18
U.S.C. § 1451(e). The district court granted the motion, revoking and setting
aside Fashola’s naturalization and canceling Fashola’s certificate of
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
Case: 15-20230 Document: 00513344362 Page: 2 Date Filed: 01/15/2016
No. 15-20230
naturalization. The court sentenced Fashola to a cumulative prison term of
168 months and to concurrent supervised release terms of three years.
Fashola asserts that he was not advised of the deportation consequences
of his conviction before he entered into an agreement to plead guilty. He raises
a Sixth Amendment issue (whether a defendant received effective assistance
of counsel) and a Federal Rule of Criminal Procedure 11 issue (whether a guilty
plea was knowing and voluntary). See Padilla v. Kentucky, 559 U.S. 356, 360
(2010); Boykin v. Alabama, 395 U.S. 238, 243 (1969). The district court did not
address the question of counsel’s effectiveness.
We conclude that this is not the “rare case[ ] in which the record allows
[us] to fairly evaluate the merits of the claim” that counsel was ineffective.
United States v. Isgar, 739 F.3d 829, 841 (5th Cir.) (internal quotation marks
and citation omitted), cert. denied, 135 S. Ct. 123 (2014). The record does not
permit us to decide, without speculation, whether Fashola’s counsel failed in
his Padilla duties or, if he did, whether his failure prejudiced Fashola. See
United States v. Thomas, 12 F.3d 1350, 1368 (5th Cir. 1994).
The second part of Fashola’s combined claim concerns the asserted
invalidity of the plea agreement resulting from the district court’s Rule 11
proceeding. Before accepting a guilty plea, the district court must ensure that
the defendant has a full understanding of the plea’s consequences. Taylor v.
Whitley, 933 F.2d 325, 329 (5th Cir. 1991); see FED. R. CRIM. P. 11. Because
Fashola did not raise this claim in the district court, we review for plain error.
See Puckett v. United States, 556 U.S. 129, 135 (2009). To prevail, Fashola
must show a forfeited error that is clear or obvious and that affects his
substantial rights. See Puckett, 556 U.S. at 135. If he makes that showing, we
have discretion “to remedy the error . . . if the error seriously affects the
fairness, integrity or public reputation of judicial proceedings.” Id. We review
2
Case: 15-20230 Document: 00513344362 Page: 3 Date Filed: 01/15/2016
No. 15-20230
the “claim against the entire record.” United States v. Young, 470 U.S. 1, 16
(1985).
The district court advised Fashola, before he pleaded, that if his
citizenship were withdrawn as part of the plea agreement, it would lead to his
deportation. Additionally, the prosecutor remarked that Fashola’s failure to
reveal his pre-naturalization crimes in this country eliminated any chance of
naturalization. Earlier, at a detention hearing, the magistrate judge stated in
his presence that unlawfully procuring his naturalization made Fashola
subject to deportation and denaturalization. Also, although the presentence
report noted that by pleading guilty Fashola may be removed from the United
States, he affirmed his guilt at sentencing and made no attempt to withdraw
his plea. See United States v. Alvarado-Casas, 715 F.3d 945, 954-55 (5th Cir.
2013). Additionally, the district court attempted to verify that counsel advised
Fashola competently. Thus, the record as a whole shows that the question
whether the district court failed to assure adequately that Fashola was alerted
to immigration consequences as required by Rule 11 is at least open to
reasonable dispute, and therefore there can be no plain error. See Puckett, 556
U.S. at 135; Young, 470 U.S. at 16; United States v. Ellis, 564 F.3d 370, 377-78
(5th Cir. 2009). Further, we question, given these facts, whether Fashola can
show that, but for any error by the district court, he would not have pleaded
guilty but would have proceeded to trial. See United States v. Dominguez
Benitez, 542 U.S. 74, 83 (2004).
But even if Fashola has met the first three prongs of plain error review,
he nevertheless has not shown that we should exercise our discretion to remedy
error. Puckett, 556 U.S. at 135. Such discretion “should be employed in those
circumstances in which a miscarriage of justice would otherwise result.”
United States v. Escalante-Reyes, 689 F.3d 415, 425. (5th Cir. 2012) (en banc)
3
Case: 15-20230 Document: 00513344362 Page: 4 Date Filed: 01/15/2016
No. 15-20230
(internal quotation marks and citation omitted). Fashola does not argue that
a miscarriage of justice would result if we were to forgo exercising our
discretion in this instance, nor does our review of the record support such a
conclusion.
Consequently, we affirm without prejudice to Fashola’s right to seek in
a 28 U.S.C. § 2255 proceeding such review of his ineffective assistance of
counsel claim as may be available under the terms of the plea agreement. See
Isgar, 739 F.3d at 841; United States v. White, 307 F.3d 336, 343 (5th Cir.
2002).
AFFIRMED.
4