JEAN-BAPTISTE BADO v. UNITED STATES ( 2015 )

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DISTRICT OF COLUMBIA COURT OF APPEALS
No. 12-CM-1509
JEAN-BAPTISTE BADO, APPELLANT,
V.
UNITED STATES, APPELLEE.
Appeal from the Superior Court
of the District of Columbia
(DVM-1930-11)
(Hon. Jennifer M. Anderson, Motions Judge)
(Hon. Stuart G. Nash, Trial Judge)
(Argued May 28, 2014 Decided July 16, 2015)
Paul V. Renaud III, Student Attorney, D.C. Law Students in Court, with
whom Moses A. Cook and Alfred D. Carry were on the brief, for appellant.
Lauren R. Bates, Assistant United States Attorney, with whom Ronald C.
Machen Jr., United States Attorney at the time the brief was filed, and Elizabeth
Trosman, John P. Mannarino, and Michelle Parikh, Assistant United States
Attorneys, were on the brief, for appellee.
Before FISHER and THOMPSON, Associate Judges, and RUIZ, Senior Judge.
Opinion for the court by Associate Judge THOMPSON.
Concurring opinion by Associate Judge THOMPSON at page 30.
Concurring opinion by Senior Judge RUIZ at page 35.
Dissenting opinion by Associate Judge FISHER at page 46.
2
THOMPSON, Associate Judge: This appeal requires us to decide whether a
non-citizen facing a charge of misdemeanor sexual abuse of a child has a
constitutional right to a jury trial because of the severe, “virtually inevitable,” and
“nearly . . . automatic” penalty of deportation that is triggered by a conviction for
that offense, which constitutes an “aggravated felony” under the federal
immigration laws. For the reasons that follow, we hold that the answer to that
question is “yes.”
I. Factual and Procedural Background
In March 2012, appellant Jean-Baptiste Bado was charged by amended
information with three counts of misdemeanor sexual abuse of a child, in violation
of D.C. Code § 22-3010.01 (2001). The government alleged that on dates within
the statutory limitations period (as well as on earlier dates as to which the
government presented evidence of uncharged “other crimes”), appellant sexually
abused his stepdaughter, J.D., by using his hand to touch her “vagina and/or vulva”
(count 1), by using his hand to touch her breast (count 2), and by using his hand to
touch her buttocks (count 3). In an oral motion on April 25, 2012, supplemented
by a written motion filed on May 17, 2012, appellant, who identified himself as a
3
political asylum applicant, demanded a jury trial.1 He asserted that, together, the
possible consequences of conviction of the charged offense — the statutory
maximum period of incarceration (180 days), the assessment payable to the
Victims of Violent Crime Compensation Fund, the requirement to register for ten
years as a sex offender, and deportation pursuant to the federal immigration laws
— are so severe that the offense must be recognized as a serious offense for which
a jury trial must be afforded.
The motions judge, the Honorable Jennifer M. Anderson, rejected
appellant’s demand for a jury trial. She noted first that this court, in Foote v.
United States, 670 A.2d 366 (D.C. 1996), and Thomas v. United States, 942 A.2d
1180 (D.C. 2008), rejected the contention that “collateral” consequences such as
deportation and mandatory sex offender registration elevate a presumptively
“petty” offense to a “serious” one for which a jury trial is constitutionally
1
The record indicates that appellant arrived in the United States on
February 8, 2005, having fled from Burkina Faso after being “systematically
prosecuted and tortured” for his political and religious beliefs and for his “political
alignments.” In his jury-demand motion, he told the court that he was a “political
asylum applicant . . . currently in removal proceedings[,]” “pending a hearing on
the finality of his [asylum] application[.]” He explained that the immigration
judge, having learned of the criminal charges against him, took his political asylum
case off the calendar, on the rationale that misdemeanor child sexual abuse, an
aggravated felony, is an offense for which appellant faced the possibility “of being
barred from receiving political asylum, and [being] remov[ed] from the United
States” if convicted.
4
mandated.2 Judge Anderson also reasoned that the Supreme Court’s opinion in
Padilla v. Kentucky, 559 U.S. 356 (2010), “has not changed the current status of
law in the District of Columbia” with respect to a non-citizen’s right to a jury trial.
The matter proceeded to a bench trial before the Honorable Stuart Nash.
The government presented evidence, primarily through the testimony of J.D., that
appellant sexually abused her on numerous occasions during the years preceding
her sixteenth birthday. J.D. testified that the abuse began shortly after appellant
moved in with her family in early 2007.3
2
See Foote, 670 A.2d at 372 (“Foote’s reliance on such uncertain and
purely collateral consequences[, such as exclusion or deportation from the United
States] of his conviction must fail.”); Thomas, 942 A.2d at 1186 (“[M]isdemeanor
child sexual abuse falls squarely within the crimes that we define as ‘petty’
because its maximum penalty is 180 days[.]”).
3
Appellant testified that he had never touched J.D. inappropriately, and he
specifically denied ever having touched her vaginal area or buttocks. He further
testified that J.D.’s animosity toward him arose from her resentment of his
instructions that she must do household chores such as washing dishes and from an
incident during which he claimed to have caught J.D. looking at pornographic
pictures on the family computer and reported that to J.D.’s mother.
5
On July 27, 2012, after a two-day bench trial, Judge Nash found appellant
guilty of one count of misdemeanor sexual abuse of a child.4 Specifically, Judge
Nash found appellant guilty of count 1, finding that during the limitations period,
there was contact between appellant’s hand and J.D.’s vaginal area while J.D. was
clothed (thus crediting J.D.’s testimony that on July 28, 2011, the day before her
sixteenth birthday, appellant touched her in the area over her vagina on top of her
jeans).5 Judge Nash sentenced appellant to 180 days’ incarceration, the statutory
maximum period of imprisonment, see D.C. Code § 22-3010.01 (a), and ordered
him to pay $50 to the Victims of Violent Crime Compensation Fund. The court
subsequently amended appellant’s sentence to include a notification that appellant
4
Judge Nash found J.D.’s testimony to be “entirely credible,” but granted
appellant’s motion for judgment of acquittal as to count 2 because J.D. did not
testify to an incident within the limitations period in which appellant touched her
breast. Judge Nash also “decline[d] to find beyond a reasonable doubt” that the
purpose of appellant’s contact with J.D.’s buttocks was for sexual gratification and
therefore acquitted appellant of count 3.
5
See D.C. Code § 22-3010.01 (a) (establishing a penalty for an adult who
engaged in “sexually suggestive conduct” with a minor) and D.C. Code § 22-
3010.01 (b)(2) (providing that “sexually suggestive conduct” includes “[t]ouching
a child or minor inside or outside his or her clothing close to the genitalia, anus,
breast, or buttocks”).
6
must register as a sex offender pursuant to the Sex Offender Registration Act of
1999 (“SORA”). See D.C. Code § 22-4002 (a) (2012 Repl.).6
On appeal from his conviction, appellant makes essentially the same
argument he made in his motion demanding a jury trial: that although
misdemeanor sexual abuse of a child is punishable by no more than 180 days’
incarceration, he was entitled to a jury trial.7 This is so, he argues, because of the
inherent “serious” nature of the offense and the non-incarceration consequences
that follow upon conviction, including required sex offender registration and
6
According to appellant’s brief, following completion of his 180-day prison
sentence, he was moved to a federal detention facility in January 2013 to await
removal proceedings. See 8 U.S.C. § 1226 (c)(1)(B) (2006) (mandating that the
Attorney General of the United States take custody of any alien who has been
convicted of any of a number of specified offenses and detain such alien pending
his removal). At oral argument in this matter on May 28, 2014, however,
appellant’s counsel informed the court, without further explanation, that appellant
had been released from detention “a few months” earlier. As far as the record
discloses, however, appellant remains subject to removal from this country.
7
If appellant is correct, he is entitled to reversal of his conviction without
more because deprivation of the right to a jury trial constitutes structural error that
requires reversal. Sullivan v. Louisiana, 508 U.S. 275, 281-82 (1993); Fortune v.
United States, 59 A.3d 949, 956 (D.C. 2013) (holding that the denial of a
defendant’s right to jury trial is structural error, i.e., an error “so intrinsically
harmful as to require reversal without regard to [its] effect on the particular trial’s
outcome”).
7
immigration consequences. As to the immigration consequences, appellant
contends that Padilla requires that this court revisit its reasoning in Foote.8
II. Applicable Law
The Sixth Amendment to the United States Constitution provides in
pertinent part that “[i]n all criminal prosecutions, the accused shall enjoy the right
to a speedy and public trial, by an impartial jury . . . .” U.S. Const. amend. VI. “It
has long been settled[,]” however, that “there is a category of petty crimes or
offenses which is not subject to the Sixth Amendment jury trial provision.”
Blanton v. City of N. Las Vegas, 489 U.S. 538, 541 (1989) (quoting Duncan v.
8
In a footnote in his reply brief, appellant also asserts that he was entitled to
a jury trial under the International Covenant on Civil and Political Rights
(“ICCPR”). However, while the United States ratified the ICCPR in 1992, the
ICCPR is not self-executing and has not been given effect by congressional
legislation. See Bannerman v. Snyder, 325 F.3d 722, 724 (6th Cir. 2003) (stating
that the ICCPR is not “judicially enforceable ‘law’ of the United States”); United
States v. Duarte-Acero, 296 F.3d 1277, 1283 (11th Cir. 2002) (“Treaties affect
United States law only if they are self-executing or otherwise given effect by
congressional legislation.”); United States v. Duarte-Acero, 208 F.3d 1282, 1284
n.8 (11th Cir. 2000) (“The Senate gave its consent to the ICCPR subject to the
following declaration: ‘That the United States declares that the provisions of
Article 1 through 27 of the Covenant are not self-executing.’”) (quoting 138 Cong.
Rec. S4781, S4783 (daily ed. Apr. 2, 1992)); Shibeshi v. United States, 920 F.
Supp. 2d 105, 107 (D.D.C. 2013) (“The ICCPR is not self-executing, and therefore
is not privately enforceable[.]”) (quoting Elie v. Holder, 443 F. App’x 635, 638 (2d
Cir. 2011)).
8
Louisiana, 391 U.S. 145, 159 (1968) (distinguishing between “serious offenses”
and “petty crimes” and holding that only the former trigger a right to a jury trial))
(internal quotation marks omitted).
Baldwin v. New York, 399 U.S. 66, 69 (1970), established that “no offense
can be deemed ‘petty’ for purposes of the right to trial by jury where imprisonment
for more than six months is authorized.” See also id. at 69-70 (declining to “draw
the line between ‘petty’ and ‘serious’ to coincide with the line between
misdemeanor and felony” and recognizing that “some misdemeanors are also
‘serious’ offenses”). In Blanton and United States v. Nachtigal, 507 U.S. 1 (1993)
(per curiam), the Supreme Court further addressed how courts are to draw the line
between “petty crimes or offenses,” as to which a jury trial is not required, and
more serious crimes, for which a defendant is entitled to trial by jury. Blanton, 489
U.S. at 541. The Court instructed that offenses for which the maximum period of
incarceration is six months or less are presumptively “petty.” Id. at 543;
Nachtigal, 507 U.S. at 3-4. This is a presumption that a defendant can overcome
“only by showing that the additional penalties, viewed together with the maximum
prison term, are so severe that the legislature clearly determined that the offense is
a ‘serious’ one.” Nachtigal, 507 U.S. at 3-4 (citing Blanton, 489 U.S. at 543
(“This standard, albeit somewhat imprecise, should ensure the availability of a jury
9
trial in the rare situation where a legislature packs an offense it deems ‘serious’
with onerous penalties that nonetheless ‘do not puncture the 6-month incarceration
line.’”)).9
D.C. Code § 16-705 provides in pertinent part that:
In any case where the defendant is not under the
Constitution of the United States entitled to a trial by
jury, the trial shall be by a single judge without a jury,
except that if — (1) (A) The defendant is charged with an
offense which is punishable by a fine or penalty of more
than $1,000 or by imprisonment for more than 180 days
(or for more than six months in the case of the offense of
contempt of court); . . . and (2) The defendant demands a
trial by jury, the trial shall be by jury, unless the
defendant in open court expressly waives trial by jury
and requests trial by the court, and the court and the
prosecuting officer consent thereto.
D.C. Code § 16-705 (b)(1)-(2) (2012 Repl.).10 As part of the Omnibus Public
Safety Act of 2006, the Council of the District of Columbia (the “Council”) created
9
The Supreme Court has also made clear that “[t]he fact that [a defendant]
was charged with two counts of a petty offense does not revise the legislative
judgment as to the gravity of that particular offense, nor does it transform the petty
offense into a serious one, to which the jury trial right would apply. . . . [T]here is
precedent at common law that a jury trial was not provided to a defendant charged
with multiple petty offenses.” Lewis v. United States, 518 U.S. 322, 327 (1996).
10
As we noted in Fretes-Zarate v. United States, with regard to its law
governing the right to a jury trial, the District of Columbia differs from “the vast
(continued…)
10
a “new misdemeanor child sexual abuse provision.” D.C. Council, Report on Bill
16-247, at 11 (Apr. 28, 2006). In legislating the provision entitled “[m]isdemeanor
sexual abuse of a child or minor,” the Council provided that “sexually suggestive
conduct with [a] child or minor,” an offense that comprises “touching a child or
minor inside or outside his or her clothing close to the genitalia, anus, breast, or
buttocks[,]” is punishable by “imprison[ment] for not more than 180 days,” a fine,
or both. D.C. Code § 22-3010.01 (a), (b)(2).11
In Padilla v. Kentucky, the Supreme Court described the dramatic changes
that have occurred in the federal immigration laws over the last 90 years. 559 U.S.
(…continued)
majority of the fifty states in our union[,] who afford, either under their state
constitutions or by statute, a right to a jury trial to anyone charged with a crime
where there is a possibility of imprisonment for any period of time.” 40 A.3d 374,
378 n.3 (D.C. 2012) (per curiam).
11
This court has previously rejected the argument that, although the Council
“effected a facial reduction in the maximum sentences for [various crimes, through
misdemeanor streamlining legislation], the Council never intended to transform
these crimes into ‘petty’ offenses” but instead made a “transparent attempt . . . to
deny defendants the right to a jury trial by the wholesale rewriting of the
misdemeanor code . . . .” Burgess v. United States, 681 A.2d 1090, 1094-95 (D.C.
1996) (internal quotation marks omitted); see also Stevenson v. District of
Columbia, 562 A.2d 622, 623 n.1 (D.C. 1989) (“In light of this plain focus on
statutory penalties, we decline appellant’s invitation to search the committee report
or other legislative history for additional indications that the Council believed
driving under the influence to be a ‘serious’ offense.”).
11
at 360-64. The Court focused in particular on the changes effected in 1996 through
the Anti-Terrorism and Effective Death Penalty Act (AEDPA)12 and the Illegal
Immigration Reform and Immigrant Responsibility Act (IIRIRA).13 “In 1996,” the
Court emphasized, “Congress . . . eliminated the Attorney General’s authority to
grant discretionary relief from deportation[.]” Padilla, 559 U.S. at 363. Thus, the
Court explained, “if a noncitizen has committed a removable offense after the 1996
effective date of these amendments, his removal is practically inevitable but for
the possible exercise of limited remnants of equitable discretion vested in the
Attorney General to cancel removal[.]” Id. at 363-64.
III. Analysis
A.
We reject with only a brief discussion appellant’s first argument, i.e., that
the inherent nature of the crime of which he was convicted and the “inescapable
societal disapproval” and “lasting social stigmas” attendant to conviction of sexual
12
Pub. L. No. 104-132, § 440, 110 Stat. 1214, 1277 (1996).
13
Pub. L. No. 104-208, § 304, 110 Stat. 3009-594 (1996).
12
abuse of a child14 require that it be recognized as a “serious” offense, for which a
jury trial is required, even though the maximum period of incarceration is 180
days. The Supreme Court instructed in Blanton that judicial attempts to distinguish
between petty and serious offenses are to focus on “objective indications of the
seriousness with which society regards the offense,” the “most relevant” of which
is “the severity of the maximum authorized penalty” of incarceration. Blanton,
489 U.S. at 541 (internal citations and quotation marks omitted); see also id. at 542
(“Primary emphasis . . . must be placed on the maximum authorized period of
incarceration[, because while p]enalties such as probation or a fine may engender a
significant infringement of personal freedom, . . . they cannot approximate in
severity the loss of liberty that a prison term entails.” (internal quotation marks and
citation omitted)). This court recognized in Burgess, 681 A.2d at 1095, that
“[w]hether a crime is ‘serious’ for Sixth Amendment purposes . . . is a question
that can be answered only by the sort of analysis prescribed by the Supreme Court
in Blanton and Nachtigal.” We may not “substitute [our] judgment as to
seriousness for that of a legislature, which is far better equipped to perform the
task[.]” Blanton, 489 U.S. at 541 (internal quotation marks omitted).
14
Appellant emphasizes Judge Nash’s comment at sentencing that the 180-
day period of incarceration the court imposed was “not . . . commensurate or
consistent with the evil that [appellant] ha[d] perpetrated[.]”
13
B.
Appellant’s next argument, too, is easily disposed of. He contends that the
requirement that a defendant register as a sex offender upon conviction of
misdemeanor sexual abuse of a minor amounts to an additional statutory penalty
that, in conjunction with the authorized 180-day period of incarceration, is so
severe as to require that the defendant be afforded a jury trial. This court has
previously rejected the argument that the registration requirement amounts to an
additional penalty that elevates misdemeanor child sexual abuse to a jury-
demandable offense. In Thomas v. United States, an appeal from a conviction of
two counts of misdemeanor child sexual abuse, we concluded, applying the plain-
error review standard, that the trial court “did not commit error -- let alone plain
error -- when it held a bench trial instead of a jury trial[.]” Thomas, 942 A.2d at
1186-87. We reasoned that SORA is a non-punitive regulatory scheme designed to
promote public safety, that SORA registration “is an administrative requirement
and [is] not penal in nature,” and that “the Sixth Amendment does not require that
14
we divert in this case from the statute that calls for jury trial in only th[o]se cases
where the maximum penalty exceeds 180 days.” Id. at 1186.15
C.
Appellant’s most substantial argument relates to the immigration
consequences of his conviction. He relies on the principle, articulated in Blanton
and Nachtigal, that a defendant who faces a maximum prison term of six months or
less “is entitled to a jury trial . . . if he can demonstrate that any additional statutory
penalties, viewed in conjunction with the maximum authorized period of
incarceration, are so severe that they clearly reflect a legislative determination that
the offense in question is a ‘serious’ one.” Blanton, 489 U.S. at 543; Nachtigal,
507 U.S. at 3-4. He emphasizes that under federal immigration law, it was clear at
the time of his jury demand that conviction of misdemeanor sexual abuse of a child
15
In light of our conclusion that the immigration penalties resulting from
his conviction entitle appellant to a jury trial, we have no need to address
appellant’s argument that, together, the requirement of sex offender registration
upon conviction and the immigration consequences of conviction, “when viewed in
conjunction with the maximum authorized period of incarceration,” entitled him to
a jury trial. Blanton, 489 U.S. at 543.
15
would render him removable from the United States.16 See 8 U.S.C. § 1227
(a)(2)(A)(iii) (2006) (providing that “[a]ny alien who is convicted of an aggravated
felony at any time after admission is deportable”); 8 U.S.C. § 1101 (a)(43)(A)
(defining “aggravated felony” to include “sexual abuse of a minor”). He argues
that deportation is an additional statutory penalty for the offense, one that is of
such severity that it clearly reflects a legislative determination that the offense is
“serious.”
As Judge Anderson recognized, this court repeatedly has rejected the
argument that the immigration consequences of a criminal conviction elevate what
would otherwise be a petty crime to a jury-demandable offense. See Foote, 670
A.2d at 372; Olafisoye v. United States, 857 A.2d 1078, 1083-84 (D.C. 2004).
16
“The changes to our immigration law have also involved a change in
nomenclature; the statutory text now uses the term ‘removal’ rather than
‘deportation.’” Padilla, 559 U.S. at 364 n.6. “A ‘removable’ individual is one
whom the immigration authorities may lawfully expel from the United States; both
‘deportable’ and ‘inadmissible’ individuals are ‘removable.’” Coyomani-Cielo v.
Holder, 758 F.3d 908, 909 (7th Cir. 2014). Generally, “[a] ‘deportable’ individual
is a non-citizen who . . . was lawfully admitted into the United States, but who later
became removable for any of a number of reasons” specified in the federal
immigration statute, such as by committing a specified offense. Id. at 909-10.
“An ‘inadmissible’ individual is a non-citizen who . . . was not formally admitted
into the country, and who is removable for any of several reasons” specified in the
immigration statute (for example, on the basis of having committed a crime listed
in 8 U.S.C. § 1182 (a)(2)). Id. at 910.
 16
However, we agree with appellant that, in light of Padilla, those decisions do not
dictate the same result here.
Foote — decided in January 1996, prior to the effective date of the 1996
amendment to the Immigration and Nationality Act (the “federal immigration
statute”)17 — was an appeal from convictions of possession of cocaine and
possession of drug paraphernalia (“PDP”). Foote argued that persons who
unlawfully possess a controlled substance are subject to “residential eviction,
forfeiture of assets, revocation of driving privileges, exclusion or deportation from
the United States, ineligibility for federal benefits, and enhanced periods of
incarceration for repeat offenders[,]” consequences that he argued were so severe
that the offense cannot be “petty” for purposes of the Sixth Amendment right to a
jury trial. 670 A.2d at 370 (emphasis added, footnotes omitted).18 Assuming
without deciding that Foote had sufficiently preserved the issue for review, we
rejected his claim, reasoning that the consequences he described were “not
included or even mentioned in the two statutes under which he was charged” and
were “not punishment for violations of the drug possession or PDP statutes[.]” Id.
17
8 U.S.C. §§ 1101 et seq.
18
However, nothing in the opinion in Foote indicates that Foote was
anything other than a United States citizen.
17
at 372. Moreover, we reasoned, “the trial judge had no authority to impose the[se
consequences] as part of Foote’s sentence”; rather, the consequences “could be
imposed only in hypothetical civil or administrative proceedings . . . which ha[d]
not been instituted against Foote, and in most cases could not be brought against
him.” Id. We said that “[a]t least on these facts, . . . Foote’s reliance on such
uncertain and purely collateral consequences of his conviction must fail.” Id.
(footnotes omitted). We explicitly “confine[d] this conclusion to the present
record,” reasoning that “the future may bring scenarios which prudence counsels
our not resolving anticipatorily.” Id. at 372 n.19 (internal quotation marks
omitted).
The legal backdrop and the constellation of facts in the instant case are quite
different. It is true that the trial judge had no authority to impose immigration
consequences on appellant,19 but that fact is one of very few parallels with Foote.
As appellant asserts and as we discuss below, after the analysis in Padilla,
Supreme Court jurisprudence no longer permits the Foote court’s characterization
19
See also Smith v. United States, 768 A.2d 577, 580 (D.C. 2001) (rejecting
the claim that a police officer charged with simple assault was entitled to a jury
trial on the ground that a statute then in effect provided that police officers could
be terminated for cause should they commit either a felony or a misdemeanor, and
noting that “[s]uch adverse action for cause could be imposed only . . . in
proceedings outside the province of the sentencing court”).
18
of immigration consequences as “purely collateral.” Further, for appellant, whose
asylum application was put on hold because of his pending trial20 and who was in
post-conviction detention for many months after serving his sentence of
imprisonment, the administrative and other immigration-related consequences have
not been merely hypothetical. And, it can be argued, the 1996 changes in the
federal immigration statute are the “future . . . scenario[]” that the Foote court
acknowledged might call for a different conclusion. Foote, 670 A.2d at 372 n.19.
Olafisoye was an appeal by a non-citizen who had been convicted of
misdemeanor sexual abuse (of an adult) and one count of marijuana possession.
Olafisoye claimed that the additional penalties of SORA registration and possible
deportation changed the nature of his offenses from “petty” to “serious” and
required a jury trial. Olafisoye, 857 A.2d at 1081, 1083, 1083 n.4. We concluded
(1) that Olafisoye’s assertion about deportation as a consequence of conviction was
“based on an incorrect reading” of the applicable statute,21 and (2) that even on the
20
See supra note 1.
21
We explained, inter alia, that even on the assumption that misdemeanor
sexual abuse (of an adult) is a crime of moral turpitude, Olafisoye would not be
rendered deportable based on the crimes-of-moral-turpitude provision of the
immigration statute, see 8 U.S.C. § 1227 (a)(2)(A)(i), because that provision
renders a defendant deportable if he is convicted of a crime of moral turpitude for
which a “sentence of one year or longer may be imposed,” while the maximum
(continued…)
19
assumption that Olafisoye was subject to the penalties he identified, “the
administrative or collateral consequences of conviction, unless they are considered
an intrusive infringement on liberty, do not implicate one’s constitutional right to a
jury trial.” Id. at 1083; see also id. at 1084 (“[E]ven if appellant could be deported
for his conviction, administrative deportation proceedings do not raise an otherwise
petty offense to the level requiring a jury trial.”).
The instant case differs from Olafisoye in important respects. First, the law
is clear, and the government has not disputed, that appellant’s conviction of
“misdemeanor sexual abuse of a child or minor,” although a misdemeanor under
District of Columbia law, constitutes an “aggravated felony” for purposes of the
federal immigration laws. See 8 U.S.C. § 1101 (a)(43)(A).22 The law is also clear
that “[a]ny alien who is convicted of an aggravated felony at any time after
admission is deportable.” 8 U.S.C. § 1227 (a)(2)(A)(iii). Thus, unlike Olafisoye’s
(…continued)
sentence of imprisonment for misdemeanor sexual abuse is only 180 days.
Olafisoye, 857 A.2d at 1084 n.6.
22
See also United States v. Ramirez, 731 F.3d 351, 354-56 (5th Cir. 2013)
(holding that the offense of which Ramirez was convicted, third-degree sexual
abuse of a minor, was an aggravated felony under the federal immigration statute
even though it was punishable as a misdemeanor and carried a maximum sentence
of three months’ imprisonment in the state where he was convicted).
20
conviction, appellant’s conviction rendered him deportable. Moreover, even
though Olafisoye was decided after the 1996 changes to the federal immigration
statute, it relied on Foote’s pre-amendment analysis that removal was too collateral
and too hypothetical a consequence to factor into the jury-trial-right analysis. But,
to repeat, the Supreme Court’s opinion in Padilla undermines the characterization
of immigration consequences as “collateral.”23
The Supreme Court held in Padilla that “counsel must inform her client
whether his plea carries a risk of deportation” and that “failure to do so clearly
satisfies the first prong of the Strickland analysis,”24 i.e., constitutes
constitutionally deficient representation.25 Padilla, 559 U.S. at 371, 374 (internal
23
We noted the possible impact of Padilla in Fretes-Zarate, an appeal from
a conviction for simple assault that “subject[ed Fretes-Zarate] to deportation under
federal immigration law,” but we decided the case under the strictures of plain-
error review (because “defense counsel did not request a jury trial at any point in
the proceedings”). Fretes-Zarate, 40 A.3d at 374, 376. We concluded that “in
accordance with the extremely limited plain-error standard . . . it was not plain,
clear or obvious error in this case for appellant to be denied a jury trial.” Id. at
378-79 (internal quotation marks omitted).
24
See Strickland v. Washington, 466 U.S. 668, 688, 692 (1984).
25
Padilla, a native of Honduras who was a lawful permanent resident of the
United States, pled guilty to transporting a large amount of marijuana. Padilla,
559 U.S. at 359. It appears that his offense, “trafficking in more than five pounds
of marijuana,” for which he was sentenced to ten years’ incarceration, Padilla v.
Commonwealth, 381 S.W.3d 322, 324 (Ky. Ct. App. 2012), constituted “illicit
(continued…)
21
quotation marks omitted). The Court “agree[d] with Padilla that constitutionally
competent counsel would have advised him that his conviction for drug
distribution made him subject to automatic deportation.” Id. at 360. In explaining
its rationale, the Court recognized that, while prior to 1996 there “was no such
creature as an automatically deportable offense[,]” id. at 362, changes in the
immigration law eliminated the authority of courts and of the Attorney General to
“alleviate the harsh consequences of deportation.” Id. at 360, 363. One result is
that the “drastic measure of deportation or removal . . . is now virtually inevitable
for a vast number of noncitizens convicted of crimes.” Id. at 360 (internal
quotation marks and citation omitted); see also id. at 366 (“[I]mportantly, recent
changes in our immigration law have made removal nearly an automatic result for
a broad class of noncitizen offenders.”). Another result is that “as a matter of
federal law, deportation is an integral part — indeed, sometimes the most
important part — of the penalty that may be imposed on noncitizen defendants
who plead guilty to specified crimes.” Id. at 364 (footnote omitted).
The Court referred to the “unique nature of deportation[,]” stating that it has
“long recognized that deportation is a particularly severe ‘penalty,’” though “not,
(…continued)
trafficking in a controlled substance,” which is an aggravated felony under federal
immigration law. See id. at 328; 8 U.S.C. § 1101 (a)(43)(B).
22
in a strict sense, a criminal sanction.”26 Id. at 365. It recognized that “[p]reserving
[a defendant’s] right to remain in the United States may be more important to the
[defendant] than any potential jail sentence.” Id. at 368 (quoting INS v. St. Cyr,
533 U.S. 289, 322 (2001)). The Court also observed that deportation is “intimately
related to the criminal process[,]” and that, “in the deportation context[,]” it is
“most difficult to divorce the penalty from the conviction[.]” Id. at 365-66
(internal quotation marks omitted). It declared that “[d]eportation as a
consequence of a criminal conviction is, because of its close connection to the
criminal process, uniquely difficult to classify as either a direct or a collateral
consequence.” Id. at 366.27
26
See, e.g., Negusie v. Holder, 555 U.S. 511, 526 (2009) (“This Court has
long understood that an ‘order of deportation is not a punishment for crime.’”
(quoting Fong Yue Ting v. United States, 149 U.S. 698, 730 (1893)); INS v. Lopez-
Mendoza, 468 U.S. 1032, 1039 (1984) (“The purpose of deportation is not to
punish past transgressions[.]”); Mahler v. Eby, 264 U.S. 32, 39 (1924) (“It is well
settled that deportation, while it may be burdensome and severe for the alien, is not
a punishment.”).
27
See also Chaidez v. United States, 133 S. Ct. 1103, 1110 (2013)
(“Deportation, we stated [in Padilla], is ‘unique.’ It is a ‘particularly severe’
penalty, and one ‘intimately related to the criminal process’; indeed, immigration
statutes make it ‘nearly an automatic result’ of some convictions. We thus
resolved the threshold question before us by breaching the previously chink-free
wall between direct and collateral consequences[.]” (internal citations omitted));
Bridges v. Wixon, 326 U.S. 135, 154 (1945) (“That deportation is a penalty . . .
cannot be doubted.”).
23
The Padilla Court’s statements provided context for its holding on the scope
of the Sixth Amendment right to effective assistance of counsel and were not
addressed to the Sixth Amendment jury-trial guarantee. Nevertheless, we cannot
ignore the Court’s observation that, in light of current federal immigration law, the
immigration consequences of a defendant’s conviction cannot be considered
merely “collateral.” Also, because the Court recognized that “criminal convictions
and the penalty of deportation” are “enmeshed[,]” Padilla cautions us against
reliance on whether the trial judge has authority to impose that additional penalty
as a factor determinative of whether a defendant facing potential deportation has a
right to a jury trial. Id. at 365-66. Thus, to the extent that our holdings in Foote
and Olafisoye were premised on contrary reasoning, they no longer provide
sufficient or reliable guidance, at least with respect to criminal offenses that make
deportation “virtually inevitable” or “nearly an automatic result” for the non-
citizen defendant. Padilla, 559 U.S. at 360, 366.28
That, however, is the beginning rather than the end of our analysis. For a
non-citizen convicted of a deportable offense, deportation or removal is a statutory
28
Because we are satisfied that the rationale of those decisions “has been
substantially undermined by [the] subsequent Supreme Court decision[]” in
Padilla, we are not “oblige[d] to follow, inflexibly” their holdings. Lee v. United
States, 668 A.2d 822, 828 (D.C. 1995).
24
penalty (that is in addition to any authorized period of incarceration); thus, to
determine whether exposure to such an additional penalty gives a defendant a
constitutional right to a jury trial, we must ask whether, “viewed in conjunction
with the maximum authorized period of incarceration, [the additional statutory
penalties are] so severe that they clearly reflect a legislative determination that the
offense in question is a ‘serious’ one.” Blanton, 489 U.S. at 543 (emphasis added);
Nachtigal, 507 U.S. at 3-4.
Conviction of any of a large number of criminal offenses renders a non-
citizen “deportable” under the immigration statute. See 8 U.S.C. § 1227 (a)(2).
There can be no doubt that actual deportation is a “particularly severe penalty.”
Padilla, 559 U.S. at 365.29 Persons who are deportable may not in fact be
deported, however, because the immigration statute also creates some avenues of
relief to avoid actual removal. Appellant has no recourse to relief because the
offense of misdemeanor sexual abuse of a child is an aggravated felony under
29
Deportation “may . . . visit as great a hardship as the deprivation of the
right to pursue a vocation or a calling” and “may result in the loss of all that makes
life worth living.” Bridges, 326 U.S. at 147 (internal quotation marks omitted). It
is “at times the equivalent of banishment or exile,” Fong Haw Tan v. Phelan, 333
U.S. 6, 10 (1948), and avoidance of it “may be more important to the [defendant]
than any potential jail sentence.” St. Cyr, 533 U.S. at 322 (quoting 3 Matthew
Bender, Criminal Defense Techniques §§ 60A.01, 60A.02[2] (1999)).
25
federal immigration law, and conviction of such an offense rendered appellant
ineligible for cancellation of removal. See 8 U.S.C. § 1229b (a)(3) (“The Attorney
General may cancel removal in the case of an alien who is inadmissible or
deportable from the United States if the alien . . . has not been convicted of any
aggravated felony” (emphasis added)); 8 C.F.R. § 1240.66 (c)(1) (providing that a
non-citizen is ineligible for special rule cancellation if he or she has an aggravated
felony conviction); Lopez v. Gonzales, 549 U.S. 47, 50 (2006) (“[T]he Attorney
General’s discretion to cancel the removal of a person otherwise deportable does
not reach a convict of an aggravated felony.”).30
30
See also United States v. Couto, 311 F.3d 179, 183-84 (2d Cir. 2002)
(“[T]he Immigration and Nationality Act eliminated all discretion as to deportation
of non-citizens convicted of aggravated felonies[.]”); Ellis v. United States, 806 F.
Supp. 2d 538, 551 (E.D.N.Y. 2011) (“[B]y the time petitioner entered his guilty
plea [in 1997], a noncitizen convicted of an ‘aggravated felony,’ . . . was subject to
automatic deportation.”); id. at 546 (recounting that “[i]n Padilla, Jose Padilla, a
lawful permanent resident of the United States, pleaded guilty to transporting
marijuana and, as a result, faced automatic deportation to his native Honduras”);
Susan Pilcher, Justice Without a Blindfold: Criminal Proceedings and the Alien
Defendant, 50 Ark. L. Rev. 269, 329 (1997) (“[A]voidance of an aggravated felony
charge will often be of paramount concern, even at the cost of pleading guilty to an
arguably more serious crime of moral turpitude, insofar as options for relief from
deportation or waivers of future inadmissibility may remain available for the
latter.”).
We note that there are some more limited avenues of relief for a non-citizen
who has been convicted of an aggravated felony. Such a non-citizen may be
eligible for withholding or deferral of removal in accordance with this nation’s
obligations under the Convention Against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment (CAT). See 8 U.S.C. § 1231 (b)(3)(A) (2006)
(continued…)
26
In addition, as a non-citizen convicted of an aggravated felony, appellant is
ineligible for the asylum that he was actively seeking before an immigration judge
at the time he went to trial in the instant matter. 8 U.S.C. § 1158 (b)(2)(A)(ii)
provides that a non-citizen is ineligible for asylum if the Attorney General
determines that the non-citizen, “having been convicted by a final judgment of a
particularly serious crime, constitutes a danger to the community of the United
States.” 8 U.S.C. § 1158 (b)(2)(B)(i) (2006) then provides that “an alien who has
been convicted of an aggravated felony shall be considered to have been convicted
of a particularly serious crime” for the purpose of 8 U.S.C. § 1158 (b)(2)(A)(ii).
See Santos-Infante v. Att’y Gen. of the United States, 574 F. App’x 142, 145 n.2
(3d Cir. 2014) (“An alien convicted of an aggravated felony is considered to have
(…continued)
(providing that the Attorney General “may not remove an alien to a country if the
Attorney General decides that the alien’s life or freedom would be threatened in
that country because of the alien’s race, religion, nationality, membership in a
particular social group, or political opinion”); 8 C.F.R. § 1208.16 (c)(2) (2014)
(providing for withholding of removal if the non-citizen establishes that “it is more
likely than not that he or she would be tortured if removed to the proposed country
of removal”); 8 C.F.R. § 1208.17 (a) (2014) (providing for deferral of removal to
the country where a non-citizen “is more likely than not to be tortured”). But these
types of relief do not preclude the non-citizen from being deported to another
country. See 8 C.F.R. § 1208.16 (f) (“Nothing in [§ 1208.16 or in 8 C.F.R.]
§ 1208.17 shall prevent the Service from removing an alien to a third country other
than the country to which removal has been withheld or deferred.”).
27
been convicted of a particularly serious crime for purposes of the asylum statute. . .
. Such an alien is ineligible for asylum.”).
In light of these bars to relief from immigration-law penalties for non-
citizens who have been convicted of aggravated felonies, we are satisfied that the
crimes Congress has designated as falling within this category are offenses for
which Congress has mandated statutory penalties that clearly reflect a legislative
determination that the offenses are serious ones.
Although, in determining whether a defendant is entitled to a jury trial, we
ordinarily look to what our own legislature has done, we are mindful that the
Supreme Court has “frequently looked to the federal classification scheme in
determining when a jury trial must be provided.” Blanton, 489 U.S. at 545 n.11.
We think that is appropriate here since only Congress may establish the penalty of
deportation31 (deportable status is not a penalty the Council, or a state legislature,
31
Congress’s “plenary power over immigration matters,” Sale v. Haitian
Ctrs. Council, 509 U.S. 155, 201 (1993), gives it the unique and exclusive ability
to “pack[] an offense it deems serious with onerous penalties that nonetheless do
not [cause the maximum period of incarceration] to puncture the 6-month . . . line.”
Nachtigal, 507 U.S. at 5 (internal quotation marks omitted). We understand the
government’s argument that, for purposes of determining whether an offense that
is presumptively petty must be deemed serious for purposes of the Sixth
Amendment right to a jury trial, we must look only to the penalties imposed by the
(continued…)
28
could authorize even if it were of the view that deportation is an appropriate
penalty for certain crimes); since any deportation penalty Congress establishes
affects non-citizens convicted of the relevant offenses in every United States
jurisdiction; and since, like incarceration (which is “an ‘intrinsically different’
form of punishment” and “the most powerful indication of whether an offense is
serious”32), deportation is a “unique” penalty, Padilla, 559 U.S. at 365, avoidance
of which may be more important to the defendant “than any potential jail
sentence.” Id. at 368 (internal quotation marks omitted).
We therefore hold that a non-citizen charged with an aggravated felony is
charged with a crime that must be deemed a serious rather than petty crime for
(…continued)
Council of the District of Columbia. However, we discern no compelling reason to
accept that argument. Our dissenting colleague calls for a more rigorous
examination than this majority opinion offers of “whether the immigration
consequences of a criminal conviction qualify as ‘additional statutory penalties’
that transform a petty offense into a serious one.” But aside from pointing out that
the deportation, though a statutory penalty, is not punishment — a point we have
already acknowledged supra at note 26 — he has not suggested what that more
rigorous analysis would entail.
32
Blanton, 489 U.S. at 542 (quoting Muniz v. Hoffman, 422 U.S. 454, 477
(1975)).
29
purposes of the Sixth Amendment.33 Accordingly, we hold that appellant was
constitutionally entitled to a jury trial. Because his demand for a jury trial was
erroneously rejected by the trial court, and he was convicted after a bench trial, he
is entitled to a reversal of his conviction.
So ordered.
33
We need not decide in this case whether any crimes listed in 8 U.S.C. §
1227 (a)(2) that have not been designated as aggravated felonies should be deemed
serious for purposes of the Sixth Amendment jury trial right.
It is worth noting that many (if not most) of the offenses designated as
“aggravated felonies” under the federal immigration statute have statutory
maximum periods of imprisonment under District of Columbia law that are in
excess of 180 days, meaning that a defendant facing trial for them in the District of
Columbia is already statutorily entitled to a jury trial. See, e.g., 8 U.S.C. § 1101
(a)(43)(F) (treating a “crime of violence . . . for which the term of imprisonment
[is] at least one year” as an aggravated felony); 8 U.S.C. § 1101 (a)(43)(G)
(treating “a theft offense (including receipt of stolen property) or burglary offense
for which the term of imprisonment [is] at least one year” as an aggravated felony);
see also Lopez, 549 U.S. at 55-60 (holding that for a drug crime to be an
aggravated felony, it must be an offense for which the maximum term of
imprisonment authorized for the offense under federal law is more than one year).
1
30
THOMPSON, Associate Judge, concurring: I write separately to address a few
matters that may need clarification and to respond to points raised in my
colleagues’ separate opinions.
To be clear, the focus of the majority opinion is not on the likelihood that
deportation will actually occur for a non-citizen whose conviction has rendered
him “deportable.” Rather, the majority opinion focuses on the facts that Congress
at once (1) has declared certain crimes to be deportable offenses and (2) has
nevertheless created avenues of relief from deportation that are available to many
non-citizens, but (3) has made those avenues of relief categorically unavailable to
non-citizens convicted of aggravated-felony offenses. The opinion looks to the
availability of statutory relief from deportation (vel non) not as it bears on the
likelihood that conviction of an offense will lead to deportation, but as it bears on
whether Congress has signaled that it clearly views the offense as serious. This
approach is anchored in the Supreme Court’s instruction that courts are to look to
whether additional statutory penalties, viewed together with the maximum period
of incarceration, indicate “that the legislature clearly determined that the offense is
a ‘serious’ one.” United States v. Nachtigal, 507 U.S. 1, 3-4 (1993) (per curiam).1
1
Moreover, the possible availability of cancellation of removal bears on
whether the “deportable” status that is triggered by conviction is “so severe.” Id.
31
With reference to incarceration, which the Court has said must be the
“primary emphasis,”2 it makes sense to look to the “maximum penalty set by the
legislature” as the best indicator of the seriousness with which the legislature
regards the offense, because authorized periods of incarceration vary greatly, from
minimum jail time to life in prison. But deportation does not come in degrees, and
Congress has broadly declared as “deportable” offenses everything from
possession of any more than 30 grams of marijuana to mass murder. For that
reason, it is eminently reasonable, when looking to potential immigration
consequences as a measure of the seriousness of an offense in Congress’s
estimation, to look to whether Congress has at the same time provided avenues for
(at least some) individuals convicted of a deportable offense to have the penalty of
removal canceled (and, conversely, whether, for those convicted of some
deportable offenses, Congress has statutorily shut down all avenues of relief from
removal). These seem to be the gradations of seriousness that exist in the
immigration statute.
2
Blanton v. City of N. Las Vegas, 489 U.S. 538, 542 (1989).
32
In my view, Congress’s declaration that conviction of any of a long list of
enumerated but quite different types of offenses renders a non-citizen “deportable”
is scant if any evidence that Congress views the offenses as serious in the Sixth
Amendment sense. As other courts have recognized, in general, the immigration-
law treatment of a non-citizen convicted of a “deportable” crime frequently turns
not on the seriousness of the crime committed but on the status of the non-citizen
in other respects. For example, in Reyes v. Holder, 714 F.3d 731 (2d Cir. 2013),
the Second Circuit focused on the fact that an unadmitted alien convicted of a
deportable “crime of moral turpitude” can qualify for a so-called “petty offense
exception” to removal, while “[a] conviction involving [the same] petty offense . . .
may still render an admitted alien deportable[.]” Id. at 735.3 The Second Circuit
explained that “[a]lthough it may seem anomalous that a legally admitted alien can
be rendered ineligible for special rule cancellation of removal while an unadmitted
alien who committed the same crime can remain eligible, we have previously noted
that Congress’s harsher treatment of legal permanent residents (‘LPRs’) may be
justified on the basis that ‘an LPR’s violation of American laws represents a
3
“Under the petty offense exception, a conviction for an offense involving
moral turpitude does not render an unadmitted alien inadmissible . . . when (1) the
maximum penalty possible was a year or less, and (2) the alien was actually
sentenced to less than six months in prison.” Id. This statutory exception seems
to be a signal from Congress that some offenses that expose non-citizens to the
threat of deportation are not so serious after all.
33
greater betrayal or poses a heightened concern of recidivism, and therefore calls for
harsher measures under the immigration laws.’” Reyes v. Holder, 714 F.3d at 737
(quoting Jankowski-Burczyk v. INS, 291 F.3d 172, 179 (2d Cir. 2002)) (citing
Gonzalez-Gonzalez v. Ashcroft, 390 F.3d 649, 652 (9th Cir. 2004) (“LPRs enjoy
substantial rights and privileges not shared by other aliens, and therefore it is
arguably proper to hold them to a higher standard and level of responsibility than
non LPRs.”)).4 It might be said in short that immigration-law consequences of
criminal conduct have less to do with the seriousness of offenses and more to do
with a variety of other congressional policies and objectives with respect to the
offenders.
In light of the foregoing, my view is that the provisions of the federal
immigration statute that render a convicted non-citizen “deportable” do not
“furnish[] us with [an] objective criterion by which a line could . . . be drawn . . .
between offenses that [Congress does or does not] regard[] as ‘serious[.]’”
4
The Reyes court also described Congress’s action in amending the
immigration statute in an attempt to “prevent the mass deportation of aliens who
had arrived from some former Soviet bloc and Central American nations,” by
allowing them, including individuals with certain criminal convictions, to apply for
“‘special rule’ protection from deportation.” Reyes, 714 F.3d at 733 (quoting
Tanov v. INS, 443 F.3d 195, 199 (2d Cir. 2006)); see 8 C.F.R. § 1240.66 (c)
(2014).
34
Baldwin v. New York, 399 U.S. 66, 72-73 (1970). That is, the fact that a non-
citizen, upon conviction of a particular offense, is rendered “deportable” pursuant
to one provision of the immigration statute, cannot be taken as a clear measure of
the seriousness of the offense where, under another provision of the same statute,
Congress has created a path to avoid deportation for certain categories of non-
citizens convicted of the same offense. By contrast, Congress’s harsh treatment of
non-citizens convicted of aggravated felonies, admitting of no exceptions, leaves
no room for doubt that Congress views these as serious offenses, no matter the
status of the offender.
Judge Fisher predicts in his dissenting opinion that after the majority
opinion, “issues of immigration law will become the central focus of criminal
litigation whenever a noncitizen has been charged with an offense that ordinarily
does not require a trial by jury.” I do not think that will be the result of the holding
that a non-citizen charged with an aggravated felony is entitled to a jury trial. As
commentators have observed, because the immigration-law consequences of an
aggravated felony conviction are so severe, avoiding having a charged offense
treated as an aggravated felony will be a paramount objective of any non-citizen
defendant. For that reason, unless it is clear and unambiguous that a charged
offense qualifies as an aggravated felony under the federal immigration statute, I
35
expect that few defendants will be likely to advance that claim solely as a basis for
obtaining an otherwise unavailable jury trial. Nor, contrary to Judge Ruiz’s
suggestion in her concurrence, will our holding today necessitate trial judges’
“delving into the intricacies of whether a particular defendant is eligible or
ineligible for relief.” The relevant inquiry will be whether the charged offense is
an aggravated felony under the federal immigration statute.
RUIZ, Senior Judge, concurring: I agree with Judge Thompson that the
deportation consequence that flows from a conviction of misdemeanor child sexual
abuse, when considered with the exposure to 180 days of incarceration, makes it a
“serious” offense under the Sixth Amendment that entitled appellant to a jury trial.
I take no issue with Judge Thompson’s discussion that, because child sexual abuse
is an “aggravated felony” under federal immigration law, appellant does not have
recourse to relief from deportation or even an otherwise valid claim of asylum,
which makes his situation particularly dire. That further explanation is not,
however, necessary to the Supreme Court’s analysis under the Sixth Amendment
which looks to the “severity of the maximum authorized penalty” in assessing
whether an offense is serious and warrants the right to a jury trial. Blanton v. City
of N. Las Vegas, 489 U.S. 538, 541 (1989) (quoting Baldwin v. New York, 399 U.S.
66, 68, (1970) (plurality opinion)) (emphasis added). The reason for this is clear:
36
“In fixing the maximum penalty for a crime, a legislature ‘includes within the
definition of the crime itself a judgment about the seriousness of the offense.’” Id.
(quoting Frank v. United States, 395 U.S. 147, 149 (1969)). As the Court
explained in Blanton, “[t]he judiciary should not substitute its judgment as to
seriousness for that of a legislature, which is ‘far better equipped to perform the
task, and is likewise more responsive to changes in attitude and more amenable to
the recognition and corrections of their misperceptions in this respect.’” Id. at 541-
42 (quoting Landry v. Hoepfner, 840 F.2d 1201, 1209 (5th Cir. 1998) (en banc)).
“The best indicator of society’s views is the maximum penalty set by the
legislature.” United States v. Nachtigal, 507 U.S. 1, 3 (1993) (citation omitted). 1
Applying this principle of deference to the legislative judgment, when the
penalty is incarceration, what is relevant is the “maximum authorized period of
incarceration.” Blanton, 489 U.S. at 542. If the maximum authorized penalty
punctures the six-month mark the offense is deemed “serious” for jury trial
1
To be clear, I do not fault Judge Thompson’s opinion for “second-
guessing” the legislature as her analysis is based on statutory provisions of federal
immigration law, but for going beyond what the Court requires. Once the
legislature has made clear that deportation is a potential consequence, that ends the
court’s inquiry into what is the “maximum” penalty that may be imposed. The
further provisions of immigration law on which Judge Thompson relies go to
whether a defendant may have some recourse for relief from deportation or
whether any relief is foreclosed by statute.
37
purposes; if not, the offense (in the absence of other penalties) is “presumptively
‘petty.’” Nachtigal, 507 U.S at 3-4. Once the legislature has expressed its
determination of seriousness by establishing the maximum penalty, it matters not
that an implementing government official has discretion to further fix the
maximum (or minimum) penalty so long as it is within the statutory mandate. See
id. at 4. For that reason, it is irrelevant to the Sixth Amendment inquiry that a
sentencing judge has discretion to impose a sentence shorter than the authorized
maximum sentence (or the alternative of no sentence at all in favor of probation) if
the authorized maximum sentence punctures the six-month mark. Applying
analogous principles here, once the legislature has spoken by authorizing
deportation, the Sixth Amendment inquiry should not turn on whether
implementing officials have discretion to grant relief to certain limited classes of
individuals or are precluded from doing so. To inquire into the possible
availability of relief from deportation, rather than on deportation as the maximum
penalty authorized by the legislature, upsets the rule established by the Supreme
Court. If this approach were adopted and applied to incarceration it would be the
equivalent of requiring that a greater-than-six-month penalty not be the maximum
exposure (as Blanton mandates) but a mandatory minimum. That simply is not
how the Court has analyzed whether the authorized penalty renders an offense
“serious” under the Sixth Amendment.
38
I see no reason to depart from the rule established in Blanton and Nachtigal
of considering the maximum authorized penalty when it comes to deportation and
perceive sound practical reasons to adhere to it.2 Blanton instructs that when the
maximum exposure to incarceration alone does not render an offense “serious,” we
must ask whether, “viewed in conjunction with the maximum authorized period of
incarceration, [the additional statutory penalties] are so severe that they clearly
reflect a legislative determination that the offense in question is a ‘serious’ one.”
Blanton, 489 U.S. at 543; see Nachtigal, 507 U.S. at 3-4. Judge Thompson
contends that Blanton’s use of the phrase “clearly reflect” requires looking for
further evidence of legislative determination of seriousness beyond exposure to
deportation.3 But why should this be necessary? The Court has already stated in
no uncertain terms that deportation is “a particularly severe penalty,” one that
“may be more important to the [defendant] than any potential jail sentence.”
Padilla v. Kentucky, 559 U.S. 356, 365, 368 (2010) (citations and internal
quotation marks omitted). This “drastic measure,” id. at 360 (citation omitted), is
akin to “banishment or exile” and not only removes the offender from the country
2
“Whether a crime is ‘serious’ for Sixth Amendment purposes . . . is a
question that can be answered only by the sort of analysis prescribed by the
Supreme Court in Blanton and Nachtigal.” Burgess v. United States, 681 A.2d
1090, 1095 (D.C. 1996).
3
This further analysis is not anchored in any case from the Supreme Court
or federal appellate court; the government has not presented it.
39
and tears him from his family, but in effect also hurts citizens and lawful residents
of the United States who depend on the deported family member for emotional,
physical and financial support. See id. at 373-74 (citation omitted). In light of
these well-understood and long-recognized hardships of deportation, there is
scarcely need to go sleuthing for clues beyond Congress’s imposition of
deportation as a consequence of a conviction to ascertain its determination that an
offense meriting such a consequence is indeed serious.
Moreover, recall that in assessing the seriousness of an offense under the
Sixth Amendment, the additional penalty of deportation is not considered in
isolation but is to be “viewed in conjunction with the maximum authorized period
of incarceration,” Blanton, 489 U.S. at 543, which, in the case of misdemeanor
sexual abuse of a child, is 180 days. D.C. Code § 22-3010.01 (a) (2012 Repl.).
Considering that the Sixth Amendment would guarantee a jury trial if the
maximum authorized incarceration were six months and one day, it would blink
reality to conclude that, viewed together, the exposure to 180 days of incarceration
and deportation are somehow insufficient to deem the offense serious so as to
entitle appellant to a jury trial.
40
There is also a practical reason not to look beyond the maximum exposure to
deportation in determining whether this additional penalty crosses the threshold of
combined penalties that entitle the defendant to a jury trial. The decision whether
to have a jury trial obviously must be made at the outset of the proceeding and a
Superior Court judge must rule on the request for the proceeding to continue.
There is a premium on clarity and promptness. Trial court judges and criminal
lawyers are not uniformly steeped in the complexities of immigration law. The
most forthright way for trial court judges to make a determination is to look at the
maximum exposure (whether conviction renders the defendant deportable) by
looking at the language of the immigration statute — as they now do with respect
to the maximum exposure to incarceration — without further delving into the
intricacies of whether a particular defendant is eligible or ineligible for relief.
Therefore, from a practical standpoint, even if it were consistent with Blanton and
Nachtigal — which it is not — adding a further step that requires analysis of
immigration law is unwise.4
4
That is not to say that situations will never arise where even the threshold
question whether conviction will render the defendant deportable is in genuine
doubt. See Flores v. Ashcroft, 350 F.3d 666, 668 (7th Cir. 2003) (noting that
“classification of a state crime under a federal definition can be tricky”). The
further question whether a conviction will be considered an aggravated felony can
be even more complicated. See, e.g., Moncrieffe v. Holder, 133 S. Ct. 1678, 1693
(2013) (noting that the Court has three times in seven years had to address whether
low-level drug crime, a deportable offense, is an aggravated felony that strips
(continued…)
41
The dissent makes several points with which I disagree. Without
elaboration, it declares as “startling” that a noncitizen would have a right to a jury
trial but that a citizen charged with the same offense would not. I fail to see a legal
basis for any perplexity on this point. Equal protection? It is a bedrock principle
of equal protection analysis that the government may not discriminate against
(…continued)
defendant of all right to relief from deportation); see also Luna v. Holder, 764 F.3d
152 (2d Cir. 2014), cert. granted sub nom. Torres v. Lynch, 2015 U.S. LEXIS 4400
(U.S. June 29, 2015) (No. 14-1096) (question presented is whether a state offense
constitutes an aggravated felony under federal law on the grounds that the state
offense is “described in” a specific federal statute if the federal statute includes an
element of the offense — use in interstate or foreign commerce — that the state
offense lacks).
These difficult questions will need to be addressed with expert assistance.
But where the government has successfully opposed a demand for jury trial on the
ground that conviction of an offense does not make the defendant deportable,
principles of estoppel would prevent the government from changing the position
taken pretrial by then, post-conviction, seeking to deport the defendant. See Ward
v. Wells Fargo Bank, N.A., 89 A.3d 115, 128 (D.C. 2014) (noting that judicial
estoppel is designed to prevent a litigant from “changing his position according to
the vicissitudes of self-interest”); United States v. Barahona, No. 14-DVM-1945,
2014 D.C. Super. LEXIS 19, at *9 n.5 (D.C. Super. Ct. Dec. 12, 2014) (noting that
when the government urged the trial court to conclude that the defendants could
not be deported following a conviction, the government would then be precluded
by the doctrine of judicial estoppel “from taking a contrary position in hypothetical
future immigration hearings involving the [d]efendants”). Estoppel may not cure
or render harmless the deprivation of the jury trial right, but at a minimum it would
serve a prudential purpose by encouraging the government to avail itself of expert
government resources on immigration law and presenting them to the court and the
defense before opposing a motion for jury trial.
42
persons who are “similarly situated.” Yick Wo v. Hopkins, 118 U.S. 356, 368, 373-
74 (1886); Bolling v. Sharpe, 347 U.S. 497, 499 (1954) (noting that “equal
protection of the laws” is a more specific safeguard encompassed within the Fifth
Amendment’s due process clause); Smith v. United States, 460 A.2d 576, 578
(D.C. 1983) (applying equal protection analysis to claim brought in the District of
Columbia under the Fifth Amendment). A citizen and a noncitizen, even if
charged with the same offense, are not “similarly situated” if only one faces the
severe penalty of deportation. The analysis that Blanton and Nachtigal mandate,
by focusing on the severity of the penalties that attend conviction, necessitates that
the disparate penalty faced by the noncitizen be taken into account.5 Since a
citizen does not face — and could not face — the same penalty of deportation that
a legislature may impose on a noncitizen, the interests at stake for the noncitizen
clearly outweigh those of a citizen, further eroding any claim to equal protection.
The stakes simply are not as high for the citizen.6
5
Not every disparate treatment of similarly situated persons violates the
equal protection guarantee; the difference in treatment must be unreasonable if not
“irrational.” See Hurtado v. United States, 410 U.S. 578, 590 (1973); Bolling, 347
U.S. at 499; Yick Wo, 118 U.S. at 373-74. Granting a jury trial based on the
severity of the authorized penalty, as Blanton and Nachtigal mandate, is eminently
reasonable.
6
Congress has no authority to impose the penalty of deportation on a
citizen. See Mathews v. Diaz, 426 U.S. 67, 79-80 (1976) (noting that “[t]he
exclusion of aliens and the reservation of the power to deport have no permissible
(continued…)
43
The dissent also argues that deportation is not “punishment” for the offense
but “rather, a consequence of abusing the privilege of living in this country.” It is
precisely because noncitizens treasure the privilege of living in this country — not
the least because the Constitution applies to and its protections cover all “persons”
within the territory of the United States, including aliens, see Wong Wing v. United
States, 163 U.S. 228, 238 (1896) (citing Yick Wo, 118 U.S. at 369), that deportation
“may result in the loss of all that makes life worth living.” Bridges v. Wixon, 326
U.S. 135, 147 (1945) (citation and internal quotation marks omitted). Whether
deportation is considered a “punishment” of the type traditionally imposed for a
criminal offense, that label is irrelevant to our substantive analysis. Blanton and
Nachtigal speak of additional “penalties” — not “punishment” — that by
definition are not the traditional penalty of incarceration. “[A]s a matter of federal
(…continued)
counterpart in the Federal Government’s power to regulate the conduct of its own
citizenry” and “would be unacceptable if applied to citizens”). Thus, in imposing
the deportation penalty, Congress is aware that noncitizens are penalized more
harshly than noncitizens for committing the same offense.
As Judge Fisher’s dissent recognizes, a distinction in the penalty imposed on
different categories of defendants is a valid basis for analysis under the Sixth
Amendment in the case of recidivists and non-recidivists because it is “in essence,
a different offense with a different maximum sentence.” Similarly, federal
immigration law essentially creates a substantially different offense for Sixth
Amendment purposes applicable only to noncitizens going so far, in this case, as to
actually label the offense an “aggravated felony” when it is committed by a
noncitizen.
44
law, deportation is an integral part — indeed, sometimes the most important part
— of the penalty that may be imposed on noncitizen defendants . . . .” Padilla,
559 U.S. at 364 (footnote omitted).
Finally, the dissent argues that exposure to deportation should not be taken
into account in deciding whether the underlying offense is serious because
deportation is not a penalty imposed by the Council of the District of Columbia but
by the Congress of the United States. But as Judge Thompson’s opinion explains,
deportation is a penalty that only Congress may impose and the relevant provisions
of federal immigration law apply to all state and local convictions encompassed by
the federal definition of deportable offenses. See 8 U.S.C. § 1227 (a)(2) (2012).
The District of Columbia has no authority to impose that penalty or to mitigate it.
It is thus necessary to consider it as part and parcel of the penalties that attend a
charge under District of Columbia law that is uniquely faced by noncitizens.
Brown v. United States, 675 A.2d 953 (D.C. 1996), on which the dissent relies, is
easily distinguishable. In Brown we rejected the argument that we should consider
the one year incarceration penalty under federal law for possession of cocaine in
determining whether the same possession, punishable under District of Columbia
law by up to 180 days of incarceration, was “serious.” Id. at 955. In Brown, as
distinct from this case, the defendant was exposed only to the 180-day penalty of
45
incarceration imposed by D.C. law, and was not at any risk of exposure to the one-
year penalty to which he would have been exposed had he been charged with the
federal offense. Id. at 954. On the other hand, all convicted persons made
deportable by federal immigration law are exposed to that penalty regardless of the
source of the law under which the charge is made or where it is prosecuted. Cf. id.
(noting that recidivist penalties did not entitle defendant to a jury trial because
“[t]he government, however, never exposed Brown to the possibility of an
enhanced sentence . . . by filing with the court a notice of prior convictions and
prosecuting him as a repeat offender”). Similarly, Brown’s rejection of the
argument that a jury trial was required by the revocation of probation and
imposition of an additional 120 days in prison allegedly “triggered” by conviction
of a second offense, punishable by a maximum of six months, that by itself did not
entitle the defendant to a jury trial, id. at 955, is not applicable here. The probation
revocation in Brown was not a penalty provided by the legislature for conviction of
the second offense but was “a continuation of the prosecution of his first offense”
by the sentencing judge in the first case in the exercise of discretion following
violation of the terms of probation that had been set by that judge. See id. There is
no question, however, that deportation is a penalty legislatively imposed as a
consequence of appellant’s conviction of misdemeanor sexual abuse of a child.
46
For the foregoing reasons, I agree with Judge Thompson’s opinion for the
court that because appellant was entitled to a jury trial, his conviction following a
bench trial must be reversed.
FISHER, Associate Judge, dissenting: According to the majority, a citizen
charged with misdemeanor sexual abuse of a child does not have a right to a jury
trial, but a noncitizen charged with the same offense does. Before I accept such a
startling result, I would like to see more cogent proof that the prospect of removal
(even the certainty of removal) is legally sufficient to overcome the presumption
that the crime is not a “serious” offense to which the right of trial by jury attaches.
Padilla v. Kentucky, 559 U.S. 356 (2010), clearly does not compel this conclusion
because it says nothing about the right to a jury trial.
In Blanton, the Supreme Court held that a defendant charged with an offense
carrying a maximum prison sentence of six months or less is entitled to a jury trial
“only if he can demonstrate that any additional statutory penalties, viewed in
conjunction with the maximum authorized period of incarceration, are so severe
that they clearly reflect a legislative determination that the offense in question is a
‘serious’ one.” Blanton v. City of N. Las Vegas, 489 U.S. 538, 543 (1989). It will
47
be a “rare situation” where this happens. Id. The Supreme Court has not
addressed whether the immigration consequences of a criminal conviction qualify
as “additional statutory penalties” that transform a petty offense into a serious one.
That question should be more rigorously examined.1
Padilla describes “deportation [as] an integral part—indeed, sometimes the
most important part—of the penalty that may be imposed on noncitizen defendants
who plead guilty to specified crimes.” Padilla, 559 U.S. at 364 (footnote omitted).
Nevertheless, the Supreme Court acknowledged, “it is not, in a strict sense, a
criminal sanction.” Id. at 365. The key question for us—one that Padilla does not
address—is whether deportation or removal is the type of penalty that counts for
purposes of determining the right to a jury trial. I think it does not. Deportation or
1
When applying other constitutional protections, the Supreme Court has
deemed it “well settled that deportation, while it may be burdensome and severe
for the alien, is not a punishment.” Mahler v. Eby, 264 U.S. 32, 39 (1924). As a
result, courts have held that removal from the United States does not implicate the
constitutional prohibitions against ex post facto laws, Harisiades v. Shaughnessy,
342 U.S. 580, 594-95 (1952); double jeopardy, De La Teja v. United States, 321
F.3d 1357, 1364-65 (11th Cir. 2003); or cruel and unusual punishment, Eid v.
Thompson, 740 F.3d 118, 126 (3d Cir.), cert. denied, 135 S. Ct. 175 (2014),
because deportation is not a criminal punishment. The Supreme Court has also
held that evidence obtained in violation of the Fourth Amendment’s prohibition
against unreasonable searches and seizures cannot be excluded from deportation
proceedings, recognizing that “[t]he purpose of deportation is not to punish past
transgressions . . . .” I.N.S. v. Lopez-Mendoza, 468 U.S. 1032, 1039 (1984); see
also Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 471, 491 (1999)
(“While the consequences of deportation may assuredly be grave, they are not
imposed as a punishment . . . .”).
48
removal is not part of the criminal penalty. It is, rather, a consequence of abusing
the privilege of living in this country.
We have addressed this question in three previous cases, each time rejecting
the argument. Foote v. United States, 670 A.2d 366, 372 (D.C. 1996) (“[T]he
remedies which Foote seeks to treat as criminal penalties could be imposed only in
hypothetical civil or administrative proceedings (e.g., eviction, forfeiture of assets,
deportation or exclusion, driver’s license revocation).”); Olafisoye v. United States,
857 A.2d 1078, 1084 (D.C. 2004) (“[A]dministrative deportation proceedings do
not raise an otherwise petty offense to the level requiring a jury trial.”); Fretes-
Zarate v. United States, 40 A.3d 374, 374 (D.C. 2012) (post-Padilla decision
applying plain error standard of review and rejecting defendant’s argument “that
she had a constitutional right to a trial by jury for [simple assault] because a
conviction subjects her to deportation under federal immigration law”).
My colleagues rely much too heavily on Padilla. The Supreme Court’s
decision to abandon the “collateral versus direct distinction” when discussing the
consequence of deportation undoubtedly means that we likewise should avoid
those labels. But that semantic reform does not automatically invalidate the jury
trial cases in which we employed such distinctions. And it should not obscure the
fact that Padilla did not purport to address the question presented here. It is one
49
thing to say (as Padilla did) that a lawyer is required to assist her client in
understanding the consequences the client will face if he pleads guilty (regardless
of whether those consequences are called “collateral” or “direct”). It is quite a
different matter to conclude that the consequence of deportation transforms a petty
offense into a serious one.
That removal will be a consequence if one is convicted of a certain crime
does not mean it is a punishment that overcomes the presumption that the charge is
a petty offense. “Primary emphasis . . . must be placed on the maximum
authorized period of incarceration.” Blanton, 489 U.S. at 542. Even the
consequence of actual incarceration does not necessarily count as part of the
punishment when determining whether a jury trial is required. For example, in
Brown v. United States, 675 A.2d 953 (D.C. 1996), the defendant’s conviction of a
new offense led another judge to revoke his probation for a prior conviction, and
he was sentenced to serve an additional 120 days in prison. Brown argued that this
added punishment entitled him to a jury trial. We rejected that argument, holding
that “[t]he fact that this revocation was triggered by the present offense does not
make the additional 120 days in prison part of the punishment for this second
offense.” Id. at 955. Similarly here, removal may have been triggered by the
criminal conviction, but that causal connection does not make removal part of the
punishment for the crime.
50
It has mattered to us before, and it should matter still, that removal is not
part of the criminal process. It is not within the power of the trial judge to impose
that consequence. See Foote, 670 A.2d at 372 (pointing out that “these sanctions
and remedies [including “exclusion or deportation from the United States”] are not
punishment for violations of the drug possession or PDP statutes, and the trial
judge had no authority to impose them as part of Foote’s sentence”).
Moreover, the fact that we are dealing here with two different legislatures
makes it awkward, at best, to honor Blanton’s command that we inquire whether
the “additional statutory penalties, viewed in conjunction with the maximum
authorized period of incarceration, are so severe that they clearly reflect a
legislative determination that the offense in question is a ‘serious’ one.” 489 U.S.
at 543. The immigration laws are enacted by Congress, while the offense at issue
here was created by the Council of the District of Columbia.
The government argues that we should focus only on the penalties assigned
by the Council. The majority dismissively sidesteps this difficult question.2
2
This is a difficult question because Congress has plenary power to
legislate for the District of Columbia and may enact our criminal laws. U.S.
Const., art. I, § 8, cl. 17. I thus do not question Congress’s power to enact a penal
statute providing that any noncitizen found guilty of misdemeanor sexual abuse
(continued…)
51
Maj. op. at 27-28 n.31. But the “same legislature” argument mattered to us in
Brown, where the defendant argued that the crime of drug possession was a
“serious” offense because federal law punished the equivalent offense by a
maximum penalty of one year in prison. We concluded that “[t]he question is not
whether some other legislative authority, such as Congress, considers an offense
‘serious,’ but whether the Council of the District of Columbia does so.” Brown,
675 A.2d at 955.3
The Supreme Court has never suggested that the identity of the defendant
changes the seriousness of the offense. To be sure, a recidivist may be entitled to a
jury trial when a first offender would not be, but that is because the penal statutes
expressly subject him to a longer period of incarceration. In other words, a
(…continued)
shall be removed from the country as part of the punishment for committing that
crime. But that is only a theoretical possibility. Congress has not purported to do
so here.
3
See also Amezcua v. Eighth Judicial Dist. Ct., 319 P.3d 602, 605 (Nev.
2014) (potential federal immigration consequences “are not relevant because they
do not reflect a determination by the Nevada Legislature that first-offense domestic
battery is a serious offense”), cert. denied, 134 S. Ct. 2895 (2014); cf. State ex rel.
McDougall v. Strohson, 945 P.2d 1251, 1256 (Ariz. 1997) (in determining whether
defendant has right to jury trial under Arizona Constitution, Arizona courts have
traditionally “look[ed] only to the consequences of conviction under Arizona law”;
“[W]e do not consider the risk of deportation in determining whether the defendant
is entitled to a jury trial on the state charge.”).
52
recidivist is deemed to have committed an aggravated form of the offense—in
essence, a different offense with a different maximum sentence.
Apart from being unprecedented, the majority’s analysis enormously
complicates the practice of criminal law. “Immigration law can be complex, and it
is a legal specialty of its own.” Padilla, 559 U.S. at 369. Under the majority’s
precise holding, the determinative question is whether the conviction would be
treated as an aggravated felony—it is the certainty of deportation, not exposure to
the risk, that matters. And the reservation of judgment found in footnote 33 of the
majority opinion signals that issues of immigration law will become the central
focus of criminal litigation whenever a noncitizen has been charged with an
offense that ordinarily does not require a trial by jury. Trial judges and
practitioners of criminal law will have to acquire the expertise to make these
judgments. I would not add this complexity unless convinced that the Supreme
Court has required it.
I respectfully dissent.