### In the 

# United States Court of Appeals For the Seventh Circuit

____________________ No. 14

- 3579

R ENATO D E B ARTOLO , Petitioner

- Appell ant ,

v.

U NITED S TATES OF A MERICA , Respondent

- Appell ee

.

____________________ Appeal from t he United States District Court for t he Northern District of Indiana
, South Bend Division

. No. 3:14

- cv

- 01620

- RLM

— Robert L. Miller , Jr., Judge

.

____________________
A RGUED J UNE 9, 2015

— D ECIDED J UNE 26, 2015

____________________

Before P OSNER , K ANNE , and S YKES , Circuit Judges

. P OSNER , Circuit Judge

. Ren ato DeBartolo, 48 years old, immigrated to the United States with his family at the age of

one , but unlike most of his family never got around to a ppl y ing for U.S. citizenship. He is married to an American ci tizen , however, and his seven or ten children (t he correct number is uncertain) are of course American citizens as well

. He has no family in Italy and has never learned Italian. Until2 No. 14

- 3579

recently deported to Italy, he lived in Indiana , where he owned a small construction co m pany from 2008 to 2010 . In 199 6 he had been sentenced in an Indiana court to eight years in prison for dealing in cocaine , but the last four years had been suspended, so he had been released after four
years ; and no removal (i.e., deportation) proceedings had been instituted against him

. In 2011 he was indicted in fe deral court for possessing with intent to distribute more than 100 marijuana plants and with man u facturing (not the right word

— marijuana plants are grown rather than manufa ctured

— but the statutory term ) more than 100 such plan ts (the same plants), both being violations of 21 U.S.C. § 841(a)(1). He had grown the plants in a barn. Marijuana plants need bright light to grow to their maximum size, and DeBartolo had powered the lighting fixtures in the bar n with electricity that he stole from the electric company by running a cla n destine power line from the company’s line to his barn. The minimum statutory prison term for the offense to which he pleaded guilty was five years . B ut a s a r esult of the help he gave the government after h is arrest to apprehend other drug dealers in his area, and of his pleading guilty to the manufactu r ing offense (thus sparing the government the bother and uncertainty of a trial), the government moved for a below

- minimum sentence after citing the substanti al assi stance to law enforcement that DeBartolo had rendered . On the basis of the plea deal, the district judge sentenced DeBa rtolo to only 25 months in prison . See 18 U.S.C. § 3553(e); U.S.S.G. § 5K1.1. The distribution charge was dropped, and though DeBa rtolo pleaded guilty in state court to the ele ctricity theft , the state court imposed a prison sentence to run concurrently with his federal se n tence.No. 14

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There was no mention of deportation in the federal case

. But u nbeknownst to DeBartolo, and also it seems to his la wyer, the prosecutors, and the judge, his conviction of the drug offense made him deportable (“remova b l e ” is the off icial term) and , were he ordered removed, would prevent him from applying for cancellation of removal

. See 8 U.S.C. § § 1101(a)(43), 1227(a)(2) (A)(iii), (B)(i)
, 1229b(a)(3)

. R emoval proceedings were indeed instituted, and after he completed his prison sentence he was removed to Italy, where he remains. But while his removal case was pend ing he had filed a motion in the district court under 28 U.S.C. § 2255(a), claiming that he had been denied effective assi stance of counsel in his criminal case in violation of the Sixth Amendment, b e cause his lawyer had failed to warn him that if he were co n victed he could well be deported; nor had he been told by anyone else

. The relief he sought in his section 2255(a) petition for the failure to warn him of the risk of r emoval was withdrawal of his gu ilty plea
, which would e n able him to r e quest a trial or try to negotiate a plea of guilty to

a non

- rem ovable offense

. The judge denied the petition, pr ecipitating this a p peal.

The f ailure to inform a defendant that if convicted he will be deported was held by the Supreme Court in Padilla v. Ke ntucky , 559 U.S. 356 , 369 (2010), to be ineffective a s sistance o f counsel , violative of the Sixth Amendment

. A s later noted in Missouri v. Frye , 132 S. Ct. 1399, 14 07 (2012), “ plea ba r gains have become so central to the administration of the criminal justice system that defense counsel have respons i bilities in the plea bargain process

... that must be met to render the adequate assistance of counsel that the Sixth Amendment requires in the criminal pro c ess at critical stages

. ” But there4 No. 14

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are two kickers . The defendant must show that if his counsel had not made the error of which he complains (in this case failing to warn the defendant that he faced deportation if convicted, as he would be if he pleaded guilty), there was a

“ re a sonable probability ” that he (the defendant) would have gone to trial rather than have pleaded gui lty. Hill v. Lockhart
, 474 U.S. 52, 59 ( 1985 ) ; see also Padilla v. Kentucky
, supra , 559 U.S. at 366; Kovacs v. United States , 744 F.3d 44, 51 (2d Cir. 2014). The d e fendant must also show that to reject the plea bargain and go to trial would have been “ rati onal under the
circumstances. ” Padilla v. Kentucky
, supra , 559 U.S. at 372 ; Hernandez v. United States , 778 F.3d 1230, 1234 (11th Cir. 2015 ).

A mentally competent criminal defendant who decides to stand trial even though he’s a l most certain to be convicted
, and who by pleading guilty would be assured of a much lighter sentence than if co n victed after a trial
, nevertheless can’t be o r dered by the judge t o plead guilty ; a judge can’t plead a defendant guilty ho w ever much the plea would be in the defendant’s b est interest . Why should the rule be di fferent if the defendant , upon belated discovery of a deport ation threat about which his counsel failed to warn him
, chooses to withdraw a plea of guilty and risk a trial that may result in a long se n tence?

If the two verbal formulas are substan tively different
, the difference is that the “reasonable probability” formula asks only what the defendant would have done had he known he faced deportation, while the “rational under the circu mstances” formula asks what he’d ha ve done were he a re asonable person. The first standard is more congenial to the usual understanding of the criminal process, which is that aNo. 14

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criminal defendant, unless mentally incomp e tent (in which event he can’t be prosecuted until cured) , has a right t o a j ury trial no matter how slight his chances of pr e vailing.

DeBartolo unquestionably wants to roll the dice , which is strong evidence that he also would have chosen to roll the dice four years ago had he known about the deportation threat. He faces the same risk of conviction and a long se ntence now that he did then . His personal choice to roll the dice is enough to satisfy the “reasonable probability” sta n dard

. The government wobbles between the two standards for

a l lowing the withdrawal of one’s guilty plea upon belated discovery of the deportation threat . Mainly it a r gues

— and the dis trict judge agreed in denying DeBartolo’s motion to vacate his guilty plea

— that the evidence is so stacked against D e Bartolo that he would not in fact have insisted on
a tr ial even if he’d know n he’d be deported as a consequence of pleading guilty and therefore of being co n victed . But the government also argues
, though at lesser length
, that it would have been “irrational” for DeBartolo to insist on a tr ial, which sounds lik e the “rational under the circu m stances”
test

. Judges and prosecutors should hesitate to speculate on what a defendant would have done in changed circu m stan ces. The district court’s decision oversimplifies the fa c tors that
D e B artolo would have had to weigh had he known he’d be facing deportation if convicted, in deciding whether to seek a trial rather than, as he did, plead guilty

. The go v ernment thought a 25

- month sentence adequate punishment

. How di f ferently would it have felt had he been tried by a jury and convicted ? Had the government sought a much heavier se n-6 No. 14

- 3579

tence in order to punish him for putting it to the bother of a trial, mightn’t that have been deemed vindictive? The go vernment says that had DeBartolo not pleaded guilty it would have filed an inf ormation under 21 U.S.C. § 851 no t ing D eBartolo’s previous drug conviction, which would have i ncreased the mandatory minimum sentence for his current crime from 5 to 10 years

. But it does not explain why it would have pressed for such a long sentence after having been content with a 25

- month sen tence

. C ould a federal prosecutor argue with a straight face that 8 years added to a 2

- year sentence is a just punishment for exercising the co nstitu tional right to trial by jury in a federal crim i nal case ?

And supp ose he’d gotten a heavier sentence after the trial just because the government and maybe the judge would have been angry at his refusing to plead guilty. Had he been

sen tenced to prison for 10 years he would be entitled to slightly more than a year off if he be haved himself ( as he would be likely to do since he’s not a violent person and was already 47 years old when convicted ) . Furthermore, convi ction would not have been the sure thing that the go v ernment claims . His d e fense , we are told, would have been t hat his marijuana project was a flop, that he had obtained only a few ounces of the drug from it , and that he had given that meager harvest away rather than sel l ing it

. The government would have presented contrary ev idence, but in light of the growing move ment to le galize the sale of marijuana and the absence of any sugge s tion of guns or violence associated with DeBartolo’s criminal activity , a jury might have though t his offense triv ial and either acqui tted him or con vict ed him of some lesser offense, such as simple posse s sion of marijuana ( which would not have beenNo. 14

- 3579 7

a basis for mandatory deportation )
, had the jury been given the option of convicting of the lesser offense

. A survey co nducted in 2001 and 2002 revealed that 39 percent of potential white j u rors and 50 percent of potential black jurors would be “ very willing” or “mostly willing” to acquit, despite ev idence of guilt
, in a first

- time nonviolent drug po ssession

case . Lawrence D. Bobo & Victor Thompson, “ Racialized Mass Incarceration: Poverty, Prejud ice, and Punishment, ” in Doing Race: 21 Essays for the 21st Century 343 ( Hazel R. Ma r kus & Pau la Moya eds.
, 2010) ( Fig. 12

. 9 )

. (Granted, this was not the defendant’s first drug case, though a number of
years had separated the two cases.) “M ontana prosecuto rs were forced to offer a defendant in a marijuana case a favo rable plea bargain after so many potential jurors said they would nullify that the judge didn’t think he could find enough j u rors to hear the case.” Paul Butler, “Jurors Need to Know That They C an Say No,” N.Y. Times , Dec. 20, 2011, p. A3 9 ; see also Jesse McKinley, “ Montana Jurors Raise Hopes of Marijuana Advocates ,” N.Y. Times
, Dec. 23, 2010, p. A20.
T o day 51 percent of adult Americans think that recreational use of marijuana should be legal. Ga llup
, “Majority Conti nues to Support Pot Legal i zation in U.S.,” 2014
, www.gallup. com/poll/ 179195/ majority

- continues

- support

- p o t

legalization.aspx (visited June 19, 2015).

We don’t condone jury nullification. But a criminal d efendant cannot be denied the right to a trial, and forced to plead guilty, because he has no sturdy legal leg to stand on but thinks he has a chance that the jury will acquit him even if it thinks he’s guilty.
Besides, even if DeBartolo knew that the likelihood of his being acquitted at a trial was slim, he would still have had8 No. 14

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reasons to reject the plea offer . He could have tried to neg otiate a different plea deal for an offense that does not make depo r tation mandatory

. For example, he could hav e offered to plead guilty to simple possession of 30 grams of mar i ju ana and perhaps r e ceiv ed the same 25

- month senten ce. Or he might have thought a small chance of remaining with his family in the United States worth the significant risk of a long prison term . He might even have prefer red a lengthy prison term in the United States to a shorter prison term that would lead more quickly to deportation, because the lengthy prison term would at least keep him in the same country as his fa m ily , facilitating frequent visits by family members, which is i m portant to prisoners . Separation from his family may have been a big concern to him if deported
, as his chi ldren , having been born in the United States and presumably not knowing Italian, would not be likely to follow him to I t aly

. Neither the parties nor the district judge considered the bearing of the fact that DeBa r tolo is seek ing a trial in 2015 rather than 2011, when he pleaded guilty. Today even a 10

- year sentence would amount to only about 6 years of i mprisonment, b e cause he could expect not only a year or so off the sentence for good beha v ior but also credit for the two
yea rs he spent in prison and the year or so that he spent in the custody of the imm i gration authorities between the end of his prison term and his deport a tion.

Also to be considered is the disarray in the enforcement of U.S. immigr a tion law. There are believe d to be at least 10 million illegal immigrants in the United States, implying significant underenforcement of the immigration laws. There are constant calls for reform of the laws themselves and ofNo. 14

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the methods of enforcing them. For all one can know, if co nvicted in a retrial DeBa r tolo may not be deported when he is released from prison. (He will not be deported if the imm igration authorities decide not to place him in removal pr oceedings.) His subjecting himself to a trial rather than r emaining in Italy an d tr y ing to acclimate himself to an alien

cu l ture far from his large family is a risky venture but not an irrational or even a rec k less one. (Nor would it have been in 2011.) The probabi l ity that he will come out ahead by taking that course may be small, b ut it is not trivial. He is e n titled to roll the dice. We are mindful that the parties and the district court are not required to consider the circumstances that DeBartolo would face if he went to trial today. The issue required by the Padilla line of case s to be considered is what he would have done, at the time he had to decide whether to plead guilty, had he known of the grave risk of being deported if he were co n victed. There was a reasonable probability that he would not have pleaded guilty , and that i s all that ma tters to our decision

. But it would be sensible for both DeBa rtolo and the government to consider the current situation in

a s sessing how to move forward. Conviction is not a forgone conclusion, and the go v ernment should consider whether having served the prison sentence the government originally recommended and having then languished in the custody of the Immigration and Naturalization Service for a year or

more and then deported to a country in which he has never really lived , DeBartolo has been punished suff i ciently and should now be allowed to go home to his wife and chi l dren without facing a new trial

.10 No. 14

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The denial of the petition for relief under 28 U.S.C. § 2255
is

R EVERSED

.