NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 13a1010n.06 No. 13-5349 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. DAYNEL L. RODRIGUEZ-PENTON, Defendant-Appellant. ) ) ) ) ) ) ) ) ) ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF KENTUCKY

Before: COOK and STRANCH, Circu it Judges; CARR, District Judge. * COOK, Circuit Judge. Daynel L. Rodriguez-Pe nton appeals his conviction and sentence for conspiracy to distribute and possess with intent to distribute Oxycodone, see 21 U.S.C. §§ 846, 841(b)(1)(C). He argues that his guilty plea wa s not knowing and voluntary because the district court did not inform him that a conviction would subject him to deportation. He also argues that, in making the drug-quantity finding to calculate his sentencing guidelines range, the district court improperly credited a witness’s testimony. For the following reasons, we affirm.

I.

* The Honorable James G. Carr, United States Di strict Judge for the Northern District of Ohio, sitting by designation.No. 13-5349 United States v. Rodriguez-Penton Rodriguez-Penton, a Cuban citizen and permanent resident alien, pleaded guilty to his charges without a plea agreement. The parties dis pute his likelihood of deportation as a result of his conviction, but they agree that the judge accepted his plea without advising him of that possible consequence. At sentencing, the district court found Rodriguez-Penton accountable for about 290 grams of Oxycodone. ( See R. 78, Sent. Tr. at 44, 48.) In making this calculation, the court relied partly on testimony from Officer Jerry Nieves of the L ouisville Metro Police Department. Officer Nieves testified that he translated for Rodriguez-Penton during a post-arrest interview, in which RodriguezPenton confessed to handling various transactions with two co-conspirators. The court’s drugquantity finding corresponded with a base offense level of 32, see U.S.S.G. §§ 2D1.1(a)(5), (c)(4) & cmt. n.8(A), that the court reduced to 31 after adju stments. That offense level, combined with a category II criminal history, yielded a range of 121 to 151 months’ imprisonment. The court sentenced him to 121 months.

II. On appeal Rodriguez-Penton contends that th e district court violated Federal Rule of Criminal Procedure 11 and the Due Process Clau se by accepting his guilty plea without informing him of the possibility of deportation. We review fo r plain error because he did not object during the plea colloquy in the district court. See United States v. Hogg , 723 F.3d 730, 737 (6th Cir. 2013).

- 2 -No. 13-5349 United States v. Rodriguez-Penton A plain error is a clear or obvious one. United States v. Olano , 507 U.S. 725, 732–34 (1993); United States v. Murdock , 398 F.3d 491, 497 (6th Cir. 2005). We already rejected the argument that a district court must inform a defendant of the possible deportation consequences of pleading guilty. United States v. El-Nobani , 287 F.3d 417 (6th Cir. 2002). In El-Nobani , we acknowledged that a district court may not accept an unknowing or involuntary guilty plea. See id . at 421 (citing Bousley v. United States , 523 U.S. 614, 618 (1998)). “A ‘defendant need only be aware of the direct consequences of the plea, however; the trial court is under no constitutional obligation to inform the defendant of all the possible collateral consequences of the plea.’” Id. at 421 (citation omitted). Collateral consequences include the possibility of deportation because “it is clear that deportation is not within the control and responsibility of the district court.” Id. at 421. Accordingly, a defe ndant knowingly and voluntarily pleads guilty even without knowledge of deportation consequences. Id

. Rodriguez-Penton fails to distinguish El-Nobani . Instead, he argues that the Supreme Court overruled El-Nobaniin Padilla v. Kentucky , 559 U.S. 356 (2010). Padilla addressed an attorney’s obligations under the Sixth Amendment, however, and not a court’s obligations under the Due Process Clause of the Fifth Amendment. The Court rejected Kentucky’s test for ineffective assistance of counsel, which, like Kentucky’s test for a knowing and voluntary guilty plea, guaranteed that a defendant know of only direct , as opposed to collateral, consequences. See id. at 365–66. The “reasonableness” standard for effectiveness established in Strickland v. Washington ,
- 3 -No. 13-5349 United States v. Rodriguez-Penton 466 U.S. 668 (1984), according to the Court, does not distinguish between direct and indirect consequences in the deportation context. See Padilla , 559 U.S. at 365–66. And a reasonable attorney informs his client of all the “succinct, clear, and explicit” deportation consequences of the guilty plea. Id . at 368.
At least two other federal circuits view Padilla as bearing on counsel’s Sixth Amendment obligations and not on a district judge’s obligation to ensure a plea’s validity under the Due Process Clause. United States v. Delgado-Ramos , 635 F.3d 1237, 1241 (9th Cir. 2011); see also United States v. Nicholson, 676 F.3d 376, 381 n.3 (4th Cir. 2012). Those courts reasoned that Padilla limited its holding to the Sixth Amendment context. See Nicholson , 676 F.3d at 381 n.3; DelgadoRamos , 635 F.3d at 1240–41. And a panel of this c ourt has reached the same conclusion. United States v. Rodriguez-Gonzales , No. 12-3735, 2013 WL 5911768, at *2 (6th Cir. Nov. 4, 2013). Moreover, though the Advisory Committee on Crimin al Rules proposes an amendment to Rule 11 to include a “generic warning” of deportation risks in the plea colloquy, the committee also notes that “ Padilla was based solely on the constitutional duty of defense counsel, and it does not speak to the duty of judges.” REPORT OF THE A DVISORY C OMMITTEE ON C RIMINAL RULES at 2–3 (Dec. 8, 2010), available at www.uscourts.gov/uscourts/RulesAndPo licies/rules/Reports/CR12-2010.pdf. Another circuit mentioned that “Padilla may create some uncertainty as to the usefulness of categorizing certain consequences as either ‘direct’ or ‘collateral’ in the Fifth Amendment context.” United States v. Youngs, 687 F.3d 56, 62 (2d Cir. 2012) (emphasis omitted). But that court went on to conclude that, irrespective of Padilla , a district court’s due-process obligations to inform a - 4 -No. 13-5349 United States v. Rodriguez-Penton
defendant about civil commitment remains unaffected. Id . And the Fifth Circuit, declining to address whether Padilla affects its “established jurisprudence th at a district court is not required to advise a defendant of the immigration consequences of a guilty plea,” concluded that such an error “is not clear or obvious” and thus not plain error. United States v. De La Cruz-Trejo , 518 F. App’x 286, 286–87 (5th Cir. 2013). Persuaded by these cases, we discern no clear or obvious error by the district court. Case law supports the notion that the Sixth Amendment provides more protection than the Due Process Clause in this context. See Youngs , 687 F.3d at 62 (“These Sixth Amendment responsibilities of counsel to advise of the advantages and disadvantages of a guilty plea are greater than the responsibilities of a court under the Fifth Amendment.” (internal citation omitted)); cf. Graham v. Connor , 490 U.S. 386, 395 (1989) (cautioning against invoking due-process principles when the Constitution “provides an explicit textual source of constitutional protection”). In the due-process context, the Supreme Court directs courts only to ensure that defendants understand the direct consequences—giving up various trial right s, for example—of pleading guilty. See United States v. Ruiz , 536 U.S. 622, 629 (2002) (noting that courts mu st determine whether a plea is knowing and voluntary because “[w]hen a defendant pleads guilty he or she, of course, forgoes not only a fair trial, but also other accompanying constitutional guarantees”). In right-to-counsel cases, the Court demands more: objectively reasonable counsel, as measured by the prevailing standards of the legal community. See Strickland , 466 U.S. at 688. This duty, according to the Court, includes informing

- 5 -No. 13-5349 United States v. Rodriguez-Penton defendants of the “succinct, clear, and explicit” deportation consequences of the guilty plea. Padilla , 559 U.S. at 368. The Court put the onus on counsel, not on sentencing judges.

III. Rodriguez-Penton also urges us to find clear e rror by the district court in its finding of the drug quantity premised on faulty translation by O fficer Nieves of Rodriguez-Penton’s confession. Given that Officer Nieves testified to growing up in Puerto Rico and primarily speaking Spanish (R. 78, Sent. Tr. at 23), in the absence of a showing of some basis for the claim, we find no clear error. See United States v. Lalonde , 509 F.3d 750, 763 (6th Cir. 2007). R odriguez-Penton also complains that the judge credited Officer Nieves’s testimony but rejected a federal agent’s unrelated testimony. But just because the court declined to credit onewitness’s testimony does not mean the court erred by crediting another’s. Rodriguez-Penton offers no specific reason to second-guess the judge’s credibility or drug-quantity findings.

IV. For these reasons, we AFFIRM the judgment of the district court.

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