UNITED STATES of America, Appellee v. David VYNER, Appellant
No. 14-3091
United States Court of Appeals, District of Columbia Circuit.
Argued November 15, 2016. Decided January 27, 2017
846 F.3d 1224
David P. Saybolt, Assistant U.S. Attorney, argued the cause for appellee. With him on the brief was Elizabeth Trosman, Assistant U.S. Attorney.
Before: ROGERS, BROWN* and MILLETT, Circuit Judges.
ROGERS, Circuit Judge:
On appeal from his conviction upon entering a guilty plea to violating
For the following reasons, we conclude Vyner has failed to show that his counsel‘s conduct at the time of his plea fell below the standard of reasonable competence under the first prong of Strickland v. Washington, 466 U.S. 668, 687, 689, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and therefore we do not reach the prejudice prong. Although an open question in this circuit, two circuit courts of appeal had held prior to Vyner‘s plea that Section 1546(a) covers foreign passports, and no circuit court had held to the contrary. Under the rule of contemporary assessment, see id. at 690, counsel had reason to conclude Section 1546(a) encompasses foreign passports. Similarly, reasonably competent counsel could have understood Section 1546(a), in view of its statutory and regulatory predicates, to criminalize the knowing possession of an altered foreign passport that had expired. And by advising a guilty plea, pursuant to a plea agreement with the government, counsel ensured that Vyner avoided a mandatory two-year sentence on the count that the government agreed to dismiss in exchange for Vyner‘s plea to a count with fourteen months’ maximum imprisonment under the Sentencing Guidelines. Accordingly, we affirm.
I.
In 2011, Vyner was indicted in Count 1, for fraud and misuse of visas, permits, and other documents in violation of
At the plea hearing pursuant to
The district court accepted Vyner‘s plea to Count 1, and sentenced him to 364 days’ imprisonment. Vyner appeals the judgment of conviction, contending that his trial counsel provided constitutionally defi- cient
II.
Under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674,
[a] convicted defendant‘s claim that counsel‘s assistance was so defective as to require reversal of a conviction ... has two components. First, the defendant must show that counsel‘s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel‘s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction ... resulted from a breakdown in the adversary process that renders the result unreliable.
Id. at 687; see United States v. Toms, 396 F.3d 427, 432 (D.C. Cir. 2006). This standard also applies to “ineffective-assistance claims arising out of the plea process.” Hill v. Lockhart, 474 U.S. 52, 57, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985).
To establish deficient performance, the defendant must demonstrate that counsel‘s advice was not “within the range of competence demanded of attorneys in criminal cases.” Id. at 56 (quotation omitted). The issue is to be assessed as of the time of counsel‘s challenged conduct and without “the distorting effects of hindsight.” Strickland, 466 U.S. at 689. Indeed, “the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.” Id. (citation omitted). And where “the record does not explicitly disclose ... counsel‘s actual strategy or lack thereof ..., the presumption may only be rebutted through a showing that no sound strategy posited by ... [the government] could have supported the conduct.” United States v. Abney, 812 F.3d 1079, 1087 (D.C. Cir. 2016) (quoting Thomas v. Varner, 428 F.3d 491, 500 (3d Cir. 2005) (citing Yarborough v. Gentry, 540 U.S. 1, 8, 124 S.Ct. 1, 157 L.Ed.2d 1 (2003))).
Section 1546(a) appears in Chapter 75, “Passports and Visas,” and subjects criminal penalties to whoever:
[K]nowingly forges, counterfeits, alters, or falsely makes any immigrant or nonimmigrant visa, permit, border crossing card, alien registration receipt card, or other document prescribed by statute or regulation for entry into or as evidence of authorized stay or employment in the United States, or utters, uses, attempts to use, possesses, obtains, accepts, or receives any such visa, permit, border crossing card, alien registration receipt card, or other document prescribed by statute or regulation for entry into or as evidence of authorized stay or employment in the United States, knowing it to be forged, counterfeited, altered, or falsely made, or to have been procured by means of any false claim or statement, or to have been otherwise procured by fraud or unlawfully obtained.
A.
Vyner does not contest that he possessed the Albanian passport or that it was “altered” within the meaning of Section 1546(a). Instead, he contends that the altered Albanian passport is not a document “prescribed by statute or regulation” for entry because it was not issued by the United States. This court has not addressed the question of statutory interpretation, and it is unnecessary to do so now. The question presented by Vyner‘s appeal is whether his trial counsel‘s performance was “deficient,” Strickland, 466 U.S. at 687, which hinges on whether it was reasonable for counsel to advise Vyner to plead guilty to Count 1 rather than challenge the government‘s interpretation of Section 1546(a).
At the time Vyner pled guilty, two federal courts of appeal had interpreted the clause “other documents prescribed by statute or regulations for entry into ... the United States,”
Still, Vyner maintains that he was denied effective assistance of counsel because a foreign passport is not a document “prescribed by statute or regulation” for entry into the United States. Emphasizing that “penal statutes are to be construed strictly,” Appellant‘s Br. 8 (quoting United States v. Campos-Serrano, 404 U.S. 293, 297, 92 S.Ct. 471, 30 L.Ed.2d 457 (1971)), he points out that courts had held that Section 1546(a) does not apply to foreign passports because the statute refers only to entry documents issued by the United States. See id. at 297-98 (citing, for example, United States v. Restrepo-Granda, 575 F.2d 524 (5th Cir. 1978); United States v. Vargas, 380 F.Supp. 1162 (E.D.N.Y. 1974)). He further maintains that while Congress has since “amended § 1546(a) to include specific U.S.-issued documents—border crossing cards and alien registration receipt cards—... [it] has never amended the statute to include foreign-issued documents, such as passports.” Id. Both the Second and Fifth Circuits focused on amended Section 1546(a)‘s broad incorporation of immigration documents, and concluded that these “pre-1986 cases ... are not helpful to [defendant‘s] argument,” Osiemi, 980 F.2d at 346, because “[r]egardless of whether a foreign passport was or was not a document required for entry into the United States before the 1986 amendment, the 1986 amendment expanded the [statute‘s] language,” id. at 347 (emphasis in original); see Rahman, 189 F.3d at 119. Vyner does not explain why the Second and Fifth Circuits’ treatment of these pre-1986 cases is flawed and proffers nothing to suggest these interpretations were being challenged by other defense counsel at the time of his plea, let alone being called into question by a court. Indeed, the lone post-1986 case Vyner cites, United States v. Fox, 766 F.Supp. 569, 572 (N.D. Tex. 1991), which ruled that a passport from a non-existent country was not a “document” covered by Section 1546(a), not only addressed a different interpretative question than that facing Vyner‘s trial counsel, but in Osiemi, 980 F.2d at 347-48, the Fifth Circuit overruled Fox “to the extent that it [was] inconsistent” with the conclusion that Section 1546(a) “proscribe[s] possession of a counterfeit passport ... issued by a foreign government.”
Last year, the Ninth Circuit held in United States v. Thomsen, 830 F.3d 1049 (9th Cir. 2016), that Section 1546(a) does not apply to United States passports. The court noted that, by contrast with Section 1543, which penalizes “[w]hoever falsely makes, forges, counterfeits, mutilates, or alters any passport or instrument purporting to be a passport,”
But Vyner‘s view that Thomsen supports his interpretation of Section 1546(a) is not well taken. First, the Ninth Circuit‘s opinion concerns U.S. passports, not foreign passports, and does not necessarily conflict with the interpretation of Section 1546(a) by the Second and Fifth Circuits. In Thomsen, 830 F.3d at 1061, the Ninth Circuit interpreted Section 1546(a) to apply only to “immigration-related documents” that an alien would use, and because U.S. passports are not issued to aliens but “to United States citizens for travel abroad and reentry,” id. at 1059 n.5, they were not related to immigration and therefore not covered by the statute. In contrast, the Second and Fifth Circuits analyzed statutory and regulatory predicates for the Section 1546(a) offense that relate to foreign-issued passports, which unlike U.S. passports, are issued to and used by aliens. In Thomsen, the Ninth Circuit did not mention these provisions or Rahman or Osiemi, all of which are on point in Vyner‘s case.
Second, even assuming Thomsen conflicts with the other circuit court decisions would not show that Vyner‘s counsel rendered “deficient” assistance under Strickland. The Supreme Court applies the rule of contemporary assessment in evaluating claims of ineffective assistance of counsel. See Lockhart v. Fretwell, 506 U.S. 364, 372, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993); Strickland, 466 U.S. at 690; see also Maryland v. Kulbicki, --- U.S. ---, 136 S.Ct. 2, 4, --- L.Ed.2d --- (2015). Given the state of the law at the time and the government‘s conditional agreement to dismiss Count 2, the decision of Vyner‘s counsel to leave the government‘s interpretation of Section 1546(a) unchallenged does not show that counsel‘s conduct was “deficient.” Moreover, Vyner has proffered nothing to show that defense counsel at the time of his plea were commonly or successfully challenging the interpretation of Section 1546(a) by the Second and Fifth Circuits, a showing that could strengthen his position that counsel‘s conduct fell below “prevailing professional norms.” Strickland, 466 U.S. at 688; see Abney, 812 F.3d at 1088-89; United States v. Fields, 565 F.3d 290, 298 (5th Cir. 2009). Lastly, Vyner‘s suggestion during a colloquy with the court that he should have been charged under Section 1543, not Section 1546(a), Oral Arg. Tr. 40:18-22, does not show that reasonably competent counsel could not have concluded his client‘s knowing possession of the altered foreign passport also violated Section 1546(a), which alone bans possession of an altered immigration document.
B.
The statutory and regulatory predicates for the Section 1546(a) offense that identify foreign passports as documents used for entry into the United States require that the passports be “valid” and “unexpired.”
Even assuming an “altered” passport could, in its original form, be both “valid” and “unexpired,” the same is not true of foreign passports that are “counterfeit, forged, or falsely made” under Section 1546(a) because they are by definition not “valid.” Vyner‘s interpretation that a fraudulent foreign passport must also be “valid” and “unexpired” in order to be covered by Section 1546(a) would therefore not only make lawful the knowing possession of an altered and expired foreign passport but, by logical extension, also the knowing possession of a counterfeit foreign passport. See Appellee‘s Br. 13. Vyner offers no reason that Section 1546(a) must necessarily be interpreted, or even should be interpreted, to prohibit possession of an altered, unexpired foreign passport while allowing possession of a counterfeit foreign passport. His interpretation conflicts with the interpretation by the Second and Fifth Circuits that Section 1546(a) plainly “criminalize[s] the knowing possession of any counterfeit or altered [immigration] document[s],” which includes “[f]oreign passports.” Osiemi, 980 F.2d at 348; see also Rahman, 189 F.3d at 119. It is also contrary to the presumption against construing a statute to render it ineffective in whole or in part. See, e.g., FTC v. Manager, Retail Credit Co., Miami Branch Office, 515 F.2d 988, 994 (D.C. Cir. 1975); see also Wilderness Soc‘y v. Morton, 479 F.2d 842, 855 (D.C. Cir. 1973). Although Vyner‘s interpretation may be plausible, on this record there is no persuasive reason to conclude that his counsel was constitutionally deficient for following the Second and Fifth Circuits’ more expansive interpretation of Section 1546(a) and declining to interpret the statute in a way that would frustrate its embrace of the laws governing entry into the United States.
Finally, “[p]lea bargains are the result of complex negotiations, ... [where] defense attorneys must make careful strategic choices in balancing opportunities and risks,” Premo v. Moore, 562 U.S. 115, 124, 131 S.Ct. 733, 178 L.Ed.2d 649 (2011), including “pleading to a lesser charge and obtaining a lesser sentence,” id. This dynamic “make[s] strict adherence to the Strickland standard all the more essential when reviewing the choices an attorney made at the plea bargain stage.” Id. at 125. As a condition of Vyner‘s guilty plea to Count 1, the government agreed to dismiss Count 2, which carried a two-year mandatory prison sentence,
Accordingly, we hold, based on the district court record, see United States v. Rashad, 331 F.3d 908, 910 (D.C. Cir. 2003), and without a need to consider the prejudice prong of the Strickland standard, that Vyner has failed to meet his burden under Strickland to show that no competent counsel could reasonably conclude that