United States v. Raudell Rodriguez-Gonzales , 543 F. App'x 532 ( 2013 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 13a0947n.06
No. 12-3735
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
Nov 04, 2013
UNITED STATES OF AMERICA, DEBORAH S. HUNT, Clerk
Plaintiff-Appellee, On Appeal from the United
States District Court for the
v. Northern District of Ohio
RAUDELL RODRIGUEZ-GONZALES,
Defendant-Appellant.
/
Before: KEITH, GUY, and GIBBONS, Circuit Judges.
RALPH B. GUY, JR., Circuit Judge. Raudell Rodriguez-Gonzales (“Rodriguez”)
appeals his conviction and sentence for conspiracy to possess with the intent to distribute
marijuana. Rodriguez is not a United States citizen. The sole issue on appeal is whether the
rationale articulated in Padilla v. Kentucky, 559 U.S. 356 (2010), required the district court
to inform Rodriguez of the deportation risks attendant to his guilty plea during its Rule 11
colloquy. We conclude that it did not.
I.
On May 5, 2009, Rodriguez pleaded guilty pursuant to a non-binding plea agreement
to conspiracy to possess with the intent to distribute a large amount of marijuana in violation
No. 12-3735 2
of 21 U.S.C. §§ 841 and 846. At his plea hearing, the court did not inform Rodriguez of the
deportation risk attendant to his guilty plea. On June 5, 2012, Rodriguez was sentenced to
240 months of imprisonment to be followed by ten years of supervised release.
In this direct appeal, Rodriguez challenges his conviction and sentence, arguing that
the court’s failure to inform him of the deportation risk attendant to his guilty plea was an
error and that Rule 11(b) of the Federal Rules of Criminal Procedure, read in light of Padilla
v. Kentucky, mandates that the court provide such information as a part of its Rule 11
colloquy. In Padilla, the Supreme Court held that the Sixth Amendment right to effective
assistance of counsel requires that defense counsel “inform her client whether his plea carries
a risk of deportation.” 559 U.S. at 374. Rodriguez does not claim that his counsel was
ineffective under Padilla.
Because Rodriguez failed to timely object to the alleged Rule 11 violation, we review
for “plain error and the burden is on the defendant to show that but for the error, he would
not have pleaded guilty.” United States v. Martin, 668 F.3d 787, 791 (6th Cir. 2012) (citing
United States v. Dominguez Benitez, 542 U.S. 74, 82-83 (2004)).
II.
A. El-Nobani v. United States
The Fifth Amendment requires that the defendant enter his guilty plea “knowingly,
voluntarily, and intelligently.” United States v. Taylor, 627 F.3d 1012, 1017 (6th Cir. 2010)
(citing Brady v. United States, 397 U.S. 742, 748 (1970)). To meet this standard, we have
held that the district court need not inform the defendant of the potential deportation
No. 12-3735 3
consequences of his plea. El-Nobani v. United States, 287 F.3d 417 (6th Cir. 2002). In El-
Nobani, we relied on the rule that the district court “need only [make the defendant] aware
of the direct consequences of the plea” and held that “the trial court is under no
constitutional obligation to inform the defendant of all the possible collateral consequences
of the plea.” Id. at 421 (citing King v. Dutton, 17 F.3d 151, 153 (6th Cir. 1994)) (emphasis
added). “A collateral consequence is one that ‘remains beyond the control and responsibility
of the district court in which that conviction was entered.’” Id. (citing United States v.
Gonzalez, 202 F.3d 20, 27 (1st Cir. 2000)). We reasoned that because “deportation is not
within the control and responsibility of the district court, . . . deportation is collateral to a
conviction.” Id.
Rodriguez argues that Padilla calls our holding in El-Nobani into question because
the Padilla Court noted that deportation is “uniquely difficult to classify as either a direct or
a collateral consequence.”1 Padilla, 559 U.S. at 366. But in Padilla, the Court specifically
limited this observation to the context of the Sixth Amendment right to effective assistance
of counsel, stating that “[t]he collateral versus direct distinction is thus ill suited to evaluating
[an ineffective assistance of counsel] claim concerning the specific risk of deportation.” Id.
The Court made no comment on the distinction as it relates to the defendant’s Fifth
Amendment right that his plea be made “knowingly, voluntarily, and intelligently.” See
Brady, 397 U.S. at 748. Given that the duties of defense counsel under the Sixth Amendment
1
Rodriguez fails to cite El-Nobani in his briefs, although he cites cases from other circuits that
reached similar conclusions.
No. 12-3735 4
are greater than the court’s duties under the Fifth Amendment, see Libretti v. United States,
516 U.S. 29, 50-51 (1995), “the Padilla Court’s unwillingness to apply the direct/collateral
distinction in the Sixth Amendment context does not demonstrate the Court’s intention to do
away with that distinction entirely in the Fifth Amendment context.” United States v.
Youngs, 687 F.3d 56, 62 (2d Cir. 2012) (citing United States v. Delgado-Ramos, 635 F.3d
1237, 1240 (9th Cir. 2011) (noting that in Padilla the Court “had no occasion to consider the
scope of a district court’s obligation” under due process or Rule 11, or “the continued
viability of the distinction between direct and collateral consequences in the due process
context”).
Guided by our decision in El-Nobani, the district court was not required to notify
Rodriguez of the potential deportation risks attendant to his guilty plea, and Padilla does not
change that fact. We cannot overrule El-Nobani (a prior published opinion) “unless a
decision of the United States Supreme Court mandates modification or this Court sitting en
banc overrules the prior decision.” United States v. Moody, 206 F.3d 609, 615 (6th Cir.
2000) (emphasis added). For the reasons discussed above, Padilla does not mandate that we
modify our holding.2
B. Federal Rule of Criminal Procedure 11(b)
2
Beyond the fact that it was not an error for the court to fail to warn Rodriguez of the deportation
risks associated with his guilty plea, Rodriguez fails to meet his burden to prove that “but for the error, he
would not have pleaded guilty” as required by United States v. Martin, 668 F.3d 787, 791 (6th Cir. 2012).
No. 12-3735 5
Alternatively, Rodriguez argues that the plain language of Federal Rule of Criminal
Procedure 11(b) mandates that the district court advise him of the deportation risk attendant
to his guilty plea in light of Padilla. Rule 11 requires that the court advise the defendant of
“any maximum possible penalty, including imprisonment, fine, and term of supervised
release” and “any mandatory minimum penalty.” FED. R. CRIM. P. 11(b)(1)(H) and (I)
(emphasis added). Because Padilla referenced the risk of deportation as a “penalty” of
conviction, 559 U.S. at 365-66, Rodriguez reasons that Rule 11(b) obligates the district court
to advise defendants of the deportation risk as it is a “penalty.”3 We disagree. The Padilla
Court never considered Rule 11 in its analysis and its reference to deportation as a “penalty”
does not, without more, transform the district court’s obligations under Rule 11.
Since Padilla, Rule 11 has been amended to require the district court to state in its
plea colloquy that “if convicted, a defendant who is not a United States citizen may be
removed from the United States, denied citizenship, and denied admission to the United
States in the future.” FED. R. CRIM. P. 11(b)(1)(O).4 In support of this amendment, the
Advisory Committee on Criminal Rules noted that “the Court’s decision [in Padilla did] not
require the proposed amendment” but that immigration consequences were a “collateral”
3
In Padilla, the Court made the following references to deportation as a “penalty”: “We have long
recognized that deportation is a particularly severe ‘penalty,’” (id. at 365 (internal citations omitted)); “Our
law has enmeshed criminal convictions and the penalty of deportation for nearly a century” (id. at 365-66
(internal citations omitted)); and “we find it ‘most difficult’ to divorce the penalty from the conviction in the
deportation context” (id. at 366 (citation omitted)).
4
Absent Congressional action, the amendment will take effect December 1, 2013.
No. 12-3735 6
consequence worth distinguishing. Id. Advisory Committee’s note. Such commentary
further supports our holding.
AFFIRMED.