NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

File Name: 16a0389n.06

No. 15-5921

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

LEO PARRINO,

Petitioner-Appellant,

v.

UNITED STATES OF AMERICA,

Respondent-Appellee.

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ON APPEAL FROM THE 

UNITED STATES. DISTRICT 

COURT FOR THE WESTERN 

DISTRICT OF KENTUCKY

Before: COOK and KETHLEDGE, Circuit Judges; SARGUS, District Judge.*

KETHLEDGE, Circuit Judge. Pharmacist Leo Parrino pled guilty to a federal 

misdemeanor for introducing and delivering misbranded inhalation drugs into interstate 

commerce. As a result of his conviction, he cannot participate in any federal healthcare program 

for five years. Parrino petitioned the district court to set aside his conviction, arguing that he 

would not have pled guilty had he known that his conviction would effectively prevent him from 

working as a pharmacist. The district court denied Parrino’s petition and we affirm.

I.

Parrino began working as a pharmacist in 1974. In 2002, he went to work for National 

Respiratory Services, where he was responsible for preparing and mixing pharmaceutical 

ingredients to create respiratory medications. In 2008, an FDA investigator audited National 

Respiratory and found that it was distributing extremely subpotent doses of budesonide, a steroid 

 

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The Honorable Edmund A. Sargus, Jr., Chief Judge of the United States District Court 

for the Southern District of Ohio, sitting by designation.
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suspension used in inhalers to treat asthma and chronic obstructive pulmonary disease. The FDA 

investigator found company records showing that in 2005, National Respiratory had tested 

samples of its budesonide and found that much of it was subpotent and that some of it was 

superpotent. National Respiratory had shipped this defective (and thus misbranded) budesonide 

to patients in over a dozen states. Many of the misbranded budesonide doses were billed to 

Medicare.

In 2009, federal investigators contacted Parrino, who in 2006 had moved on to work as a 

pharmacist for K-Mart. According to the investigators, they specifically asked Parrino whether 

National Respiratory had shipped any subpotent or superpotent batches. Parrino said that any 

such batches had been destroyed before they were shipped to patients. The investigators 

returned later in the year. They asked him again whether National Respiratory had shipped any 

defective batches of budesonide, and again Parrino denied that he had. They then showed 

Parrino the company’s own lab reports indicating that its budesonide was defective. Parrino then

changed his story: he admitted that he knew National Respiratory had shipped some defective 

budesonide and that he had told National Respiratory’s COO about the problem. At the end of 

the interview, he prepared and signed a handwritten statement acknowledging that, while he 

worked as National Respiratory’s pharmacist, he was aware that he had prepared defective

(misbranded) budesonide that the company later shipped to patients.

In making that concession, Parrino had admitted to participation in a federal crime under 

21 U.S.C. § 331(a), which prohibits the delivery of misbranded drugs into interstate commerce. 

Violations are punishable by up to a year in prison, or three years if the act is committed with the 

“intent to defraud and mislead[.]” 21 U.S.C. § 333(a)(1)-(2). In May 2010, lawyers from the 

U.S. Attorney’s office in Louisville met with Parrino and his lawyer, Kenneth Plotnik. They told 
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Parrino that they hoped to secure his cooperation in a criminal case against National 

Respiratory’s COO. If Parrino cooperated, the government would charge him with a 

misdemeanor violation of the law against misbranding; if Parrino refused, he would face a felony 

prosecution and could be held liable for over $2 million in restitution.

The next day, according to Plotnik, he and Parrino met to discuss Parrino’s options. 

Again according to Plotnik, Parrino was “extremely distraught . . . and he was unwilling to really 

even discuss [possible] defenses very much. He was going to plead guilty to the misdemeanor, 

and if there were consequences, we would deal with them later.” Parrino, according to Plotnik, 

was well aware that there would be collateral consequences if he pled guilty to the misdemeanor 

charge, including the possible revocation of his pharmacist’s license by the Kentucky Board of 

Pharmacy.

He knew that coming in. He also knew that there was some—there 

was another thing called this statute that would expel him from 

prescribing. He knew there was a statute out there. He knew there 

was some federal—he had either done some research between the 

year after he had been contacted by the agents and he contacted 

me, or maybe he [knew] it from his continuing pharmaceutical 

education, but he knew that there was this exclusion statute 

associated with a fraud conviction and most—but we definitely 

knew about this.

Plotnik thereafter researched the federal statute in question, 42 U.S.C. § 1320a-7, which

instructs the Secretary of Health and Human Services to exclude (for five years) certain 

individuals and entities from participation in any federal health-care program on a mandatory or 

permissive basis, depending on certain conditions, such as whether the excluded person has been 

convicted of certain crimes or has had his license suspended by a state licensing authority. See

42 U.S.C. § 1320a-7. Plotnik became convinced that Parrino would fit within the terms of the 

“permissive” portion of the statute, so that it would be up to the Secretary’s discretion whether 
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Parrino was barred from participating in federal health-care programs. About one month after 

Parrino and Plotnik met with the U.S. Attorney’s office, Plotnik advised Parrino that Parrino 

“was going to be in this permissive section and not in this mandatory exclusion section . . . of 

course, I couldn’t guarantee that they wouldn’t exclude him because even under the permissive 

section, exclusion was still a possibility.”

Thus, according to Plotnik, Parrino and Plotnik had discussed the possibility that 

“[Parrino] could lose his license. He could lose the ability to prescribe medication. But 

[Parrino] was adamant that he would not . . . face trial [for] the felony. He would not do it.” 

Plotnik was interested in exploring defenses for Parrino: “I wanted to take it to trial. I thought 

there were problems—constitutional problems with [the case].” But “Parrino was very unwilling 

to discuss defenses.” Plotnik thereafter went about negotiating a plea that would downplay

Parrino’s role in the criminal conduct at National Respiratory, as part of a “strategy . . . both for 

the purpose of the Board of Pharmacy and for the exclusion statute, to minimize [Parrino’s] 

activities or behaviors.” Parrino eventually pled guilty to the misdemeanor misbranding charge 

in September 2011. The date of his sentencing was dragged out by continuances, and Plotnik 

wrote in emails to Parrino that this was a good thing: “this is going to postpone the day when 

you are going to face any discipline from the Board of Pharmacy.”

In 2013, the district court sentenced Parrino to one year of probation and ordered him to 

pay $14,000 in restitution. The Office of the Inspector General at the Department of Health and 

Human Services later determined that Parrino’s five-year exclusion from federal programs was 

mandatory. The Kentucky Board of Pharmacy also began investigating the possible revocation 

of Parrino’s license. Parrino thereafter lost his job as a pharmacist at K-Mart.
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Parrino thereafter petitioned the district court to vacate his conviction because, he argued, 

he would have risked trial rather than plead guilty had he known that he would face mandatory

exclusion from federal programs due to his misdemeanor conviction. He argued that Plotnik’s 

failure to advise him that a misdemeanor conviction would likely subject him to mandatory 

exclusion was constitutionally ineffective assistance of counsel, and that his guilty plea was 

therefore defective. The district court held a hearing to consider Parrino’s claim. There, Parrino 

testified that he “had no discussions with Mr. Plotnik regarding [the] potential collateral 

consequences” of a guilty plea.

The district court denied Parrino’s petition after concluding that Plotnik’s alleged failure 

to advise Parrino of the potential collateral consequences of his guilty plea did not violate 

Parrino’s Sixth Amendment right to effective assistance of counsel. The court also concluded 

that, even if Parrino did have a right to be advised of the collateral consequences of his plea, 

Plotnik in fact fulfilled his obligation. The court found Plotnik’s testimony more credible than 

Parrino’s, and held as a factual matter that “Plotnik made Parrino aware of the provisions of the 

[exclusion] statute and its possible application to [Parrino] based upon the entry of his 

misdemeanor guilty plea.” Finally, the court concluded that, even if Plotnik had failed to 

properly advise Parrino of the collateral consequences, that omission did not prejudice Parrino, 

because it would have been objectively unreasonable for Parrino to pass up the plea deal he 

received and instead face a felony trial and a potential restitution award of $2.4 million. This 

appeal followed.

II.

We review the district court’s legal conclusions de novo and its factual findings for clear 

error. See United States v. Jackson, 181 F.3d 740, 743-44 (6th Cir. 1999). We afford “great 
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deference” to the district court’s credibility determinations. United States v. Grubbs, 773 F.3d 

726, 731 (6th Cir. 2014).

The Sixth Amendment guarantees that “[i]n all criminal prosecutions, the accused shall 

enjoy the right to . . . the Assistance of Counsel for his defence.” U.S. Const. amend. VI 

(emphasis added). The right to counsel is not a right to competent legal advice regarding all 

aspects of the accused’s life. Rather, it is a right to “Assistance” in a particular type of legal 

proceeding—the “criminal prosecution[.]” Id. That right stems from the recognition that, in an

adversarial trial, “access to counsel’s skill and knowledge is necessary to accord . . . ample 

opportunity to meet the case of the prosecution[.]” Strickland v. Washington, 466 U.S. 668, 685 

(1984).

A guilty plea, however, is a “break in the chain” of criminal proceedings. Tollett v. 

Henderson, 411 U.S. 258, 267 (1973). The integrity of the criminal-justice system requires the 

presumption that the plea is final. So “[w]hen a criminal defendant has solemnly admitted in 

open court that he is in fact guilty of the offense with which he is charged . . . [h]e may only 

attack the voluntary and intelligent character of the guilty plea by showing that the advice he 

received from counsel was not within the standards” of effective representation required by the 

Sixth Amendment. Id.

Thus, an argument that counsel rendered constitutionally-ineffective assistance in 

advance of trial is an argument that counsel was so ineffective that the defendant either pled 

guilty involuntarily, pled guilty without awareness of the elements of the crime he committed, or 

pled guilty without awareness of potentially successful defenses to criminal liability. Cf. United 

States v. Ruiz, 536 U.S. 622, 630 (2002) (noting that a knowing guilty plea “does not require 

complete knowledge of the relevant circumstances”). Typically, a defendant’s failure to consider
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the numerous potential collateral consequences of a criminal conviction—e.g., prohibitions on 

certain categories of employment, or future limitations on constitutional rights—does not vitiate 

a guilty plea. See, e.g., United States v. Youngs, 687 F.3d 56, 61-63 (2d Cir. 2012); United States 

v. Delgado-Ramos, 635 F.3d 1237, 1239-40 (9th Cir. 2011) (per curiam). In 2010, however, the 

Supreme Court held that counsel’s failure to advise a criminal defendant that a guilty plea would 

lead to his deportation voided the defendant’s guilty plea so long as the defendant would 

reasonably have proceeded to trial but for counsel’s failure. See Padilla v. Kentucky, 559 U.S. 

356, 374 (2010). Parrino argues that the rule expressed in Padilla should apply to his case, and 

that Plotnik therefore had a duty to advise Parrino of the potential collateral consequences of 

Parrino’s plea, including the risk that Parrino would be barred from participating in federal 

health-care programs. Parrino asserts that Plotnik neglected that duty and that Parrino’s guilty 

plea was thus entered involuntarily.

Apart from the common ground of attorney advice, however, Parrino’s case has little in 

common with Padilla’s. The holding in Padilla was limited to advice “concerning the specific 

risk of deportation” and was based upon a long tradition that placed deportation in “close 

connection to the criminal process,” which made deportation “uniquely difficult to classify as 

either a direct or a collateral consequence.” Id. at 366. The Padilla Court also noted the 

particularly “harsh consequences of deportation.” Id. at 360. The penalty of complete

banishment from the United States is different in kind from the burden of five years’ exclusion 

from federal health-care programs.

Yet even assuming for the sake of argument that Plotnik had a duty to advise Parrino of 

the collateral regulatory consequences of Parrino’s guilty plea, Plotnik fulfilled that duty here by 

thoroughly discussing with Parrino the potential collateral consequences of a guilty plea. Parrino 
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says those discussions were not sufficient because Plotnik did not tell Parrino that he was

guaranteed to be subject to “mandatory exclusion.” Parrino Br. at 23 (quoting Plotnik’s 

testimony). But Parrino demands much more of Plotnik than the Court asked of defense counsel 

in Padilla. There, the Court required that counsel have a “rudimentary understanding of the 

deportation consequences of a particular criminal offense” so that he would “be able to plea 

bargain creatively with the prosecutor in order to craft a conviction and sentence that reduce the 

likelihood of deportation[.]” Padilla, 559 U.S. at 373. The Padilla Court required further that 

counsel advise his client whether his plea carries the “risk” of deportation. Id. at 374. Here, 

Plotnik thought Parrino fit within the “permissive” exclusion provision, and crafted a plea 

agreement written to minimize Parrino’s culpability and persuade the Office of the Inspector 

General at the Department of Health and Human Services—which administers the exclusion 

statute—that Parrino deserved to continue practicing as a pharmacist. Plotnik’s strategy was a 

reasonable one: defendants who are convicted of misdemeanor misbranding, as Parrino was, are 

sometimes subject to the permissive exclusion provision contained in 42 U.S.C. § 1320a-7(b). 

See Friedman v. Sebelius, 686 F.3d 813, 817 (D.C. Cir. 2012). But Plotnik warned Parrino that 

there was still a real risk of exclusion: “I couldn’t guarantee that they wouldn’t exclude him.” 

Plotnik’s advice met the standard for effective assistance of counsel articulated in Padilla.

The district court’s judgment is affirmed.