united states versus gonzales thank you and morning runners may please the court my name is brendan white i represent appellant when afraid of gonzales in this case the issue appears to be fairly clean cut and straightforward and there actually and in my role it's a possibility that certainly needs to be considered has been considered of course and frankly it is the kind of problem i  am cognizant of that possibility of course it's always a risk in many appeals for from criminal convictions including this one and as a disclaimer i have to point out that i am not admitted in the western district of new york as i made clear to my client and if it were to go in that direction i would not be representing him there  understands that and and here we are there was there was never a motion a formal motion to withdraw his plea is that correct that is correct your honor there  with all due respect to the attorneys involved in the case there was no reference by any of the attorneys as to what was pretty blatant violation of rule eleven it was only my client in admittedly not the most articulate fashion who brought to the court's attention prior to being sentenced that you know what's going on here everyone  i'm sorry let me take that back i apologize your honor he clearly expressed dissatisfaction with his attorney's representation at that point making it clear on the record to the judge who he's not an attorney iran or his attorney was standing right next to him the judge if this is the reason why brutal levon exists that it's the judge's responsibility to make clear to the to the defendant at that time you know i'm now being put on notice that you things might have gone differently had you been aware of this very serious consequence of your conviction at this point do you wish to take your plea back or do you at least wish some additional time to speak with your attorney about what options you have though those all could have been done the judge basically acknowledged it but then said but but the court your permanent residence is that correct yes i am the court all right was that in the plea agreement mr marigold no judge there's nothing in there about the defendant's residency at which point the probation officer brings to the court's attention judge it's in paragraph eighty six of the pre sentence investigation it was information our office received from immigration and customs enforcement and now the in the central part of what the court said ok i understand that part but the part mr gonzales is raising is whether or not he was advised that the police in this case would have consequences on his status in the united states and i don't recall that being part of the plea agreement in here the sentence here is involving almost twenty years that may be why it wasn't part of the agreement is there anything else defendant no your honor it's certainly true at that point the defending could have said i hereby wish to take my plea back but then just moments later he says no i got nothing to say i'm not satisfied with mr smith's defense whereas earlier he had said he was satisfied and he was sort of on a roll so to speak as your honour's know that that was not his only gripe with mr smith's defense but but certainly one that the court should have recognized was fatal to knowing intelligent and voluntary plea of guilty so if we were to agree with you that there is a serious rule eleven concern is the proper result they can remain under to have a jacobson hearing such as bo you and the government suggested in your briefs to determine whether mister gonzales in fact would have wanted to withdraw his plea or not i maintain that the record on  face does answer that question that yes he would have wanted to withdraw his plea had he been put on notice that yes this is something you can do no but nobody ever told him that i've heard that the record also reflects that he said that you told me you said i have to don't worry about that i was here since i was five years old is that true he told me i don't have to worry about that which if that's accurate seems to  n incorrect yes in feis seriously yeah in any event as i said i believe the record does show the fact that he had been here since he was a small child the fact that he had his entire family living here in the united states very consistent with the supreme court's evaluation in leave versus united states where they make clear that listen this somebody who has no connections to another country has lived their  entire life this is going to be often the most important consideration and lee held as well that it can be rational behavior you have to least allow a defendant the opportunity to risk a longer sentence out of concern said i maintain it's not necessary but should the court believe that yes it is appropriate for additional fact finding to be done i agree that that would be appropriate and i right in understanding that you think  correct immigration advice that the government ought to bear the burden of showing that the error was harmless that he clearly would have pleaded guilty anyhow and and really that that conclusion is foreclosed by the supreme court's june decision lee i certainly don't agree with your honor ok thank you but you will hear from the government lead this case is not lee in that case the supreme court did not infer that the defendant would likely have not proceeded forward there was in their words substantial an sentence and even a much longer sentence in a worst plea deal absolutely because of deportation consequences and that underscored the gravity of the feel your to advise right yes and in that that case was a twenty two fifty five appeal which is the vehicle for a defendant to address his ineffective assistance claims and that's really what this case is it's isn't this really not about ineffective assistance but about whether his plea was knowing and voluntary i mean he apparently from this transcript suggests that he got bad advice that it didn't matter that you know don't worry about the deportation consequences and we have an opportunity to remedy that right now we have a judge who failed to follow up as well as counsel the whole crew at the sentencing hearing not making sure that the defendant understood the immigration consequences  think what we have here is a comment by the defendant about his attorney's advice on a particular topic and we don't have any comment from the attorney about that topic we don't have anything else but we're here is not for the adequacy of the advice sentencing hearing right but are you saying that the defendant still bears the burden of showing that he would have pleaded guilty but in terms of raising it the defendant didn't say did judge treacy i didn't know i was subject to deportation at the time i took this plea he didn't say in so many words but that's the clear import of the transcript but he never said that you said don't worry about it wait what right and i think the i mean we can all agree that the the language used by the defendant himself to the court is not exactly clear as to what he's saying if it is the court you are asked whether since it came up whether on the defendant's right i disagree i think it is plain here because i think under vol and the other cases that have cited it other cases from this court that have cited it a defendant cannot establish plain air where he is aware of the defect but which is plain if he was trying to bring it up and didn't know how it i mean the issue was raised there wasn't it i may not have been  it wasn't raised there was well let's are you saying it wasn't right so it was raised on appeal and therefore it's plain i don't think the defendant's complaint about his attorney's potential advice on that issue is the same thing as the defendant filing a motion to honor that that that must have been manifest and i think the court made a comment that it wasn't in the plea agreement so the pre sentence report raised it was clear to everyone who read th document that and who had been at the plea proceeding that rule of them hadn't been complied with and i think under the supreme court case yvonne v o n n i think there's some language in there where the supreme court says the onus is on counsel to seek the relief i agree that the judge was aware that there was a rule e violation but i don't know that it's up on counsel because the usual presumption is the judge may not be aware of the year here it is impossible that the judge was not aware  he administered the rule eleven call maqui and then he read the pre sentence report and then the issue becomes should the judge at that point understand that the defendant wants to vacate his plea or grant an adjournment that wasn't requested that's what district judges get the big bucks for of course he wants this he is running this proceeding he in this case even to the extent it was brought to the court's attention before sensing i think the case law focuses on when it's brought to the defendant's attention before sensing what action does he take because if he doesn't take if he doesn't ask the district court to vacate his plea based on that air how should he be allowed to come to this court without ever asking the district court for that relief how should become allowed how should he be allowed to ask this court for that same belief when you never think it would have been judge it became clear and he asked the defense is there anything further and they said no and he asked him again is there anything further and then he there he asked if there are comments at sentencing but if i'm the judge and it's clear to me that the rules been violated what warrant do i have to pass the responsibility to correct the problem on to the defendant or the defense counsel is not my responsibility as a judge well to correct the rule to correct the violation he committed the violation was and is one's ability to correct it but i guess if the defense isn't asking for a remedy for the violation he didn't know that the judge didn't know that he didn't know what they were asking for because he didn't want i understand if the if there had been an additional an adjournment he might have had more information but he asked the defense is there anything further he asked them twice and they didn't ask for any relief the p s r was issued six months before the sentencing but we do we know when the defendant first saw the p s r no we don't  that he at some point before sentencing that he did in that he never asked the court never said to the court i didn't know about the deportation consequences if i had known about them i would have taken my i would not have  file a motion after the sentencing or is that precluded if he tried to withdraw his plea after the sentencing after he took the after after this proceeding that we just heard with would he have been entitled to do that or does he have to raise it then on direct appeal because the proceeding is i guess it depends on what the basis of his argument is if it's my attorney gave me bad advice he never told me there were deportation consequences to this which is the leak case then that's a motion after sensi before to judge tracy so he can then have his attorney appear and take effect finding hearing have effect finding hearing with mr smith to say yes or no i told him about immigration consequences these were our conversations about it he was or was not aware he was entitle to file such a motion after sentencing is that right i think you would always have the the right to file a twenty to fifty five if the he's going to argue that his  he had ineffective assistance of counsel in taking the plea i don't think the appeal we have would violate would prevent that because he would be saying that in essence my plea was involuntary based on the depression where you sit down let me ask you this  was this was was the two hundred twenty eight plus the nine twenty four his maximum exposure or did the government give him some of three different sets of felony level state drug trafficking charges that were pending at the time he entered his plea and he none of those would have impacted his criminal history because they were dismissed in advance he secured that as well as the right to get below not just the guidelines of the five k one but there are provisions allowing for below the ten year mandatory minimum for the drug charge as well as the five year mandatory minimum for the firearms offen those are if he hadn't gotten up from under the state charges he would have been in court criminal history categories sex to pay it would depend on what he received in those but he was a one in the plea agreement with three additional felony state drug trafficking senses i would imagine he's got at least a five pretty close to a five so now you take away the three level increase that was agreed to in the plea agreement for securing the dismissal of those charges because that would that was only in there as a result of the dismissal but he would have him at least i would estimate at least a four five i mean potentially a six but if there were three three point convictions that's nine points that's a criminal history category i think that's five and we thought he was looking at when you all sect started your negotiations when you first set down he was looking at what he was looking at life yes he was looking at life and the unknown of what the three separate state felony drug charges were going to bring whether those what sentences they would be as well as whether those would be one consecutive to each other or consecutive to a federal sense all of that was then taken off the table by securing the dismissal of each one of those charges what happens to those charges of this i already happened they've been dismissed of this with a lot of you know they remain would not affect the jury just is correct correct they've been dismissed i don't believe there's any way to sort of revive those at this point thank you young man he's in his mid forty's however this particular sentence as it stands plays out he would be in likely his mid sixty's if he were to get out  on top of that and i don't think there's any way to get around the fact that this agreement as contemplated had intended for there to be cooperation realistically speaking i  can't imagine we all know the type of colloquy that goes on during cross examination well i don't expect the judge to do anything you know i'm hopeful that i receive a a lower sends reality of course is esearch only expects to receive a substantially lower sentence and it's impossible to imagine that somebody in those circumstances is thinking ok this is wonderful i'm going to fulfill my end of the bargain cooperate and i will get out and then i'll be deported after that the that's not what he wants his goal is to do what he was asked to do cooperate and continue living his life here in the united states but he said he declined to cooperate because of fears for his family that occurred later on in the process but at the time the plea agreement was made and the plea was taken cooperation was certainly contemplated and i don't think there's any way to get around the strong likelihood that he obviously intended to stay in america and being allowed to stay here was was central to his decision to cooperate rather than fighting the charges he was born in the philippines he has no no connection there whatsoever he's lived in united could his trial counsel have made a motion after sentencing if he had retreated with mr gonzales and said wait a second you know this is totally different from what i understood i just had a chance to look at the p s r with you we focused on these other things i have noticed that yeah after senate was that an option it is not my understanding of the way the federal rules work that he could make a motion to withdraw his plea following sentencing because it's unfortunate they didn't go back to judge gracie