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Rojas v. United States

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT

. C ITATION TO A SUMMARY

ORDER FILED ON OR AFTER J ANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY F EDERAL R ULE

OF A PPELLATE P ROCEDURE 32.1 AND THIS COURT ʹ S L OCAL R ULE 32.1.1. W HEN CITING A

SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT

, A PARTY MUST CITE EITHER THE

F EDERAL A PPENDIX OR AN ELECTRONIC DATABASE ( WITH THE NOTATION ʺ SUMMARY ORDER ʺ ). A

PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED

BY COUNSEL

.

At a stated term of the United States Court of Appeals for the Second

Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in

the City of New York, on the 19 th day of March, two thousand twenty.

PRESENT: DENNIS JACOBS,

GUIDO CALABRESI,

DENNY CHIN,

Circuit Judges

.

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CRISTIAN ROJAS,

Petitioner

‐ Appellant

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UNITED STATES OF AMERICA,

Appellee.

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FOR PETITIONER

‐ APPELLANT: RHIDAYA TRIVEDI (Ronald L. Kuby, on the

brief ), Law Office of Ronald L. Kuby, New

York, New York.2 FOR APPELLEE: JARED LENOW, Assistant United States

Attorney (Richard Cooper and Karl Metzner,

Assistant United States Attorneys, on the brief ),

for Geoffrey S. Berman, United States Attorney

for the Southern District of New York, New

York, New York.

Appeal from the United States District Court for the Southern District of

New York (Abrams, J .).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.

Petitioner

‐ appellant Cristian Rojas appeals the district court ʹ s order

entered May 16, 2019, denying his motion pursuant to 28 U.S.C. § 2255 to vacate his

judgment of conviction. On April 3, 2015, Rojas pled guilty to one count of conspiracy

to distribute and possess with the intent to distribute a controlled substance

‐‐ MDMA

(or ecstasy)

‐‐ in violation of 21 U.S.C. § 846, and on September 26, 2018, the district

court sentenced Rojas to time served. On appeal, Rojas contends that his § 2255 motion

should have been granted because the district court violated the Fifth Amendment and

Federal Rule of Criminal Procedure 11 when it informed him that he is ʺ likely to be

deported ʺ and that deportation ʺ may be mandatory ʺ as a consequence of his guilty plea.

We assume the parties ʹ familiarity with the underlying facts, the procedural history of

the case, and the issues on appeal.3 DISCUSSION

I. Applicable Law

Federal Rule of Criminal Procedure 11 requires the court, during a plea

colloquy, to confirm that the defendant understands ʺ that, if convicted, a defendant

who is not a United States citizen may be removed from the United States, denied

citizenship, and denied admission to the United States in the future. ʺ Fed. R. Crim. P.

11(b)(1)(O).

Rule 11 ʺ is designed to ensure that a defendant ʹ s plea of guilty is a

voluntary and intelligent choice among the alternative courses of action open to the

defendant, ʺ Zhang v. United States, 506 F.3d 162, 168 (2d Cir. 2007), and our precedent

requires ʺ strict adherence, ʺ United States v. Pattee

, 820 F.3d 496, 503 (2d Cir. 2016).

Nonetheless, all that is required is that a defendant be placed on notice that his guilty

plea has potential immigration consequences and that he be provided an opportunity to

discuss those consequences more fully with his attorney or with an immigration

specialist. Zhang

, 506 F.3d at 169. As we noted in Zhang :

To hold a sentencing court that has decided to address the

topic to a higher standard of detail in explaining possible

immigration ramifications

‐‐ a notoriously complex and

constantly shifting area of law

‐‐ would likely have the

perverse effect of encouraging sentencing courts simply to

avoid the issue entirely, lest a reviewing court find a

statement to be, in retrospect, misleading.

Id. at 169.4 Where a Rule 11 challenge is brought in a motion under 18 U.S.C. § 2255,

the ʺ movant can successfully challenge [the] guilty plea conviction

. . . only by

establishing that the violation constituted a constitutional or jurisdictional error, or by

showing that the error resulted in a complete miscarriage of justice or in a proceeding

inconsistent with the rudimentary demands of fair procedure. ʺ Lucas v. United States

,

963 F.2d 8, 12

‐ 13 (2d Cir. 1992) (internal quotations and citations omitted)

. The movant

must also show prejudice, meaning that ʺ he did not understand the consequences of his

plea, or that, if he had been properly advised, he would not have pled guilty. ʺ Id. at 13.

II. Analysis

The district court did not err in denying Rojas ʹ s motion because the

deportation warning given during his plea allocution was accurate and the record is

clear that Rojas fully understood the immigration consequences of his plea. 1 Rojas pled

guilty to one count of conspiracy to distribute and possess with the intent to distribute

MDMA, in violation of 21 U.S.C. § 846, on April 3, 2015. Before accepting the plea, the

district court addressed Rojas as follows:

[I]t ʹ s very important that you understand that as a result of

your plea, you ʹ re likely to be deported and that deportation

may be mandatory. Did you discuss the possible

immigration consequences of your plea with your attorney?

1 The Government argues that Rojas ʹ s claim is procedurally barred by his failure to raise it

on direct appeal and was waived by his plea agreement. Because we hold that Rojas ʹ s claim

fails on the merits, we do not reach these procedural issues.5 App ʹ x at 66

. Rojas replied, ʺ Yes, your Honor. ʺ App ʹ x at 67.

Rojas contends that the court ʹ s instructions failed to satisfy Rule 11

because the court used the words ʺ likely ʺ and ʺ may be mandatory ʺ when deportation

was, according to him, an unambiguous certainty in his case. But deportation was not a

certainty. As Rojas conceded in his motion below, at least two avenues of relief from

deportation remained potentially available to him following his guilty plea

‐‐ successful

completion of the Southern District ʹ s Young Adult Opportunity Program (which can in

certain circumstances result in the dismissal of charges), see App ʹ x at 152 n.4, and the

filing of a claim for relief under the Convention Against Torture. See App ʹ x at 163 n.2.

Thus, even though Rojas ʹ s chances of avoiding removal were slim, there was a

possibility that he could do so. If the district court had advised him that deportation

was certain, that advice would have been wrong. The district court ʹ s statement that

ʺ deportation may be mandatory ʺ was accurate in the circumstances, and cannot form

the basis for a finding that Rojas ʹ s plea was involuntary. See Zhang

, 506 F.3d at 168 ( ʺ If

the statements were accurate at the time they were made, then they could not

reasonably be said to be misleading and could not have rendered [the defendant ʹ s]

guilty plea involuntary. ʺ ). And even assuming there was error, on this record the error

was not plain.

* * *6 We have considered Rojas ʹ s remaining arguments and conclude they are

without merit. For the foregoing reasons, we AFFIRM the judgment of the district

court.

The mandate shall issue forthwith.

FOR THE COURT:

Catherine O ʹ Hagan Wolfe, Clerk