884 F.3d 318 | 6th Cir. | 2018
Lead Opinion
MOORE, J., delivered the opinion of the court in which MERRITT, J., joined. BUSH, J. (pp. 326-31), delivered a separate dissenting opinion.
Hatem Ataya pleaded guilty to one count of conspiracy to commit healthcare fraud and wire fraud. His plea agreement included a waiver of his appeal rights. During his plea colloquy, Ataya acknowledged that he understood that he was waiving these rights. The district court, however, failed to comply with Federal Rule of Criminal Procedure 11(b)(1)(J), (K), (L), and (O) during the colloquy. Ataya now seeks to vacate his conviction on the grounds that his plea was unknowing due to these Rule 11 omissions, and asserts that the appellate-waiver provision in his plea agreement is unenforceable because of these same errors. For the following reasons, we hold that Ataya's appellate waiver is unenforceable, deny the government's motion to dismiss, and REVERSE his conviction. We REMAND for further proceedings consistent with this opinion.
I. BACKGROUND
In March 2016, Ataya pleaded guilty to one count of conspiracy to commit healthcare fraud and wire fraud, in violation of
At Ataya's plea hearing, the district court failed to address a number of considerations that are required under Federal Rule of Criminal Procedure 11(b)(1). First, "the district court did not inform Ataya, as Rule 11 requires, that the plea agreement required him to pay restitution and a special assessment and to forfeit the proceeds of his fraud." United States v. Ataya ,
The district court subsequently sentenced Ataya to ninety-seven months' imprisonment, followed by three years' supervised release. R. 205 (J. at 2-3) (Page ID #1595-96). Ataya was also ordered to pay $4,119,711.29 in restitution, forfeit specific property, and pay a $100 special assessment. Id. at 5-6 (Page ID #1598-99).
Ataya appealed the judgment against him, and the government moved to dismiss on the basis of the appellate waiver. Reviewing the government's motion to dismiss, we held that "[w]hile we agree with the government that Ataya knowingly waived his appellate rights, we are not convinced that Ataya entered into the plea agreement as a whole knowingly and voluntarily." Ataya ,
II. DISCUSSION
A. Waiver of the Right to Appeal
The government moved to dismiss this appeal on the basis of the appellate-waiver provision in Ataya's plea agreement. Gov't Mot. to Dismiss at 2. In response, Ataya argues that his waiver was not "knowing and intelligent," and thus it is unenforceable. Def. Resp. at 2.
"We will enforce an appeal waiver included in a plea agreement when the agreement is made knowingly and voluntarily." United States v. Morrison ,
We previously held that "Ataya knowingly waived his appellate rights. His plea agreement included a broad waiver provision, and the district court confirmed that Ataya understood and accepted the waiver's consequences." Ataya ,
*322must have entered into the plea agreement as a whole knowingly and voluntarily."
Normally, we must first determine whether a defendant's appeal is barred by an appellate-waiver provision before considering the defendant's arguments on the merits. See, e.g. , Morrison ,
B. Standard of Review
Because Ataya "let[ ] Rule 11 error[s] pass without objection in the trial court ... [he] has the burden to satisfy the plain-error rule and ... [we] may consult the whole record when considering the effect of any error on substantial rights." United States v. Vonn ,
First, there must be an error or defect-some sort of [d]eviation from a legal rule-that has not been intentionally relinquished or abandoned, i.e., affirmatively waived, by the appellant. Second, the legal error must be clear or obvious, rather than subject to reasonable dispute. Third, the error must have affected the appellant's substantial rights, which in the ordinary case means he must demonstrate that it affected the outcome of the district court proceedings. Fourth and finally, if the above three prongs are satisfied, the court of appeals has the discretion to remedy the error-discretion which ought to be exercised only if the error seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.
*323
To "obtain[ ] relief for an unpreserved Rule 11 failing ... a defendant is obliged to show a reasonable probability that, but for the error, he would not have entered the plea."
C. Knowingness of Ataya's Guilty Plea as a Whole
Ataya argues that his conviction should be vacated because his guilty plea was not knowing and voluntary due to his lack of notice regarding the immigration consequences of his plea. Appellant Br. at 7, 9, 13. Ataya's argument that his plea was uninformed is entangled with his argument that the district court made a Rule 11 error.
*324Federal Rule of Criminal Procedure 11(b)(1)(O) instructs the district court "to inform the defendant of, and determine that the defendant understands ... 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." This provision was added to the rules in 2013, following the Supreme Court's decision in Padilla v. Kentucky ,
The government concedes that the district court in this case did not comply with Rule 11(b)(1)(O) and that, therefore, Ataya has met the first two prongs of plain-error review; in other words, the failure of the district court to give the warning required by Rule 11(b)(1)(O) was an unwaived error and it was clear or obvious. Appellee Br. at 9. Instead, the government argues that Ataya cannot meet the third step of plain-error review: the government asserts that Ataya does not demonstrate that he would not have pleaded guilty but for the district court's Rule 11 error. Appellee Br. at 10.
Ataya, a native of Syria, is a naturalized American citizen. Pre-Sentence Report at 3. His conviction exposes him to the possibility of denaturalization under
The Supreme Court has recognized that American citizenship provides "priceless benefits." Schneiderman v. United States ,
more serious than a taking of one's property, or the imposition of a fine or other penalty. For it is safe to assert that nowhere in the world today is the right of citizenship of greater worth to an individual than it is in this country. It would be difficult to exaggerate its value and importance. By many it is regarded as the highest hope of civilized men.
In addition to the inherently severe consequences of denaturalization on any individual in general, there is sufficient contemporaneous evidence in the record demonstrating a reasonable probability that Ataya in particular would not have pleaded guilty if he had notice of the potential adverse immigration consequences. At his sentencing hearing, Ataya articulated a strong, and very reasonable, aversion to his former homeland of Syria. R. 198 (Sent. Hr'g Tr. at 22) (Page ID #1544). His relatives who had remained in Syria after he emigrated are now displaced in numerous other countries due to the ongoing civil war.
*326Dominguez Benitez ,
Because Ataya has satisfied the first three prongs of plain-error review, it is within our discretion to vacate his conviction "if the error seriously affect[s] the fairness, integrity or public reputation of judicial proceedings." Puckett ,
III. CONCLUSION
The district court's failure to comply with Rule 11(b)(1)(O) was plain error.
We note that this "heightened showing of prejudice" applies when a defendant is seeking to vacate his guilty plea. It does not apply to the plain-error standard applied when a defendant seeks merely to void an appellate waiver. Compare, e.g. , United States v. Murdock ,
The government elides a key modifier in its statement of this third requirement. Appellee Br. at 9. Ataya does not have to demonstrate definitively that, but for the Rule 11 error, he would have proceeded to trial. Rather, Ataya must show "a reasonable probability that, but for the error, he would not have entered the plea." United States v. Dominguez Benitez ,
The government argues that we should hold that Ataya has waived his claim that his guilty plea was unknowing, separate and apart from the Rule 11 error, because Ataya did not develop the issue in his appellate brief. Appellee Br. at 12. Ataya contests the government's characterization of his arguments. Appellant Reply Br. at 1. We do not need to decide whether Ataya waived this portion of his argument, however, because to the extent Ataya argues that his guilty plea was unknowing under the Fifth Amendment, this argument is unavailing. We have previously held, in a case decided prior to Padilla v. Kentucky ,
The dissent argues that the warning required under Rule 11(b)(1)(O) is narrow and therefore inapplicable to Ataya, Dissent Op. at 326-28, but this characterization ignores the Advisory Committee's commentary. This is a general warning that must be given to every defendant. And this makes the dissent's hypothetical situation about restitution inapposite to this case. Dissent Op. at 327-29. Rule 11(b)(1)(K) requires the district court to inform the defendant about its authority to order restitution. Restitution in this context is "[c]ompensation for loss; esp., full or partial compensation paid by a criminal to a victim, not awarded in a civil trial for tort, but ordered as part of a criminal sentence or as a condition of probation." Restitution , Black's Law Dictionary (10th ed. 2014). The Advisory Committee's commentary does not instruct district courts to provide a generic warning to the defendant about any potential civil liability in its warning about criminal restitution. Thus, the dissent's hypothetical defendant cannot use this opinion to argue that a failure by the district court to provide a warning about consequences not covered by Rule 11 allows him to withdraw his guilty plea. But a defendant like Ataya, who was deprived of a warning mandated by Rule 11 that is relevant to his situation, may argue that his guilty plea was not knowing and voluntary.
The dissent argues that Ataya would have probably lost if he had chosen to go to trial, and therefore he cannot show that he would have not pleaded guilty if he had been provided the appropriate warnings during his plea colloquy. Dissent Op. at 328-29. In addition to making unsupported assumptions about what evidence the government would have introduced against Ataya at trial, Dissent Op. at 329 n.4, the dissent assumes that likelihood of success at trial is a determinative factor for all defendants by relying on language from the Supreme Court's decision in Lee v. United States , Dissent Op. at 328-29. But the Supreme Court, in Lee v. United States , explicitly recognized that we should focus "on a defendant's decisionmaking, which may not turn solely on the likelihood of conviction after trial." Lee ,
A defendant without any viable defense will be highly likely to lose at trial. And a defendant facing such long odds will rarely be able to show prejudice [under Strickland ] from accepting a guilty plea that offers him a better resolution than would be likely after trial. But that is not because the prejudice inquiry in this context looks to the probability of a conviction for its own sake. It is instead because defendants obviously weigh their prospects at trial in deciding whether to accept a plea. Where a defendant has no plausible chance of an acquittal at trial, it is highly likely that he will accept a plea if the Government offers one.
But common sense (not to mention our precedent) recognizes that there is more to consider than simply the likelihood of success at trial. The decision whether to plead guilty also involves assessing the respective consequences of a conviction after trial and by plea. When those consequences are, from the defendant's perspective similarly dire, even the smallest chance of success at trial may look attractive. ...
The district court also failed to comply with Federal Rule of Criminal Procedure 11(b)(1)(J), (K), and (L) during the plea colloquy because the district court did not advise Ataya of the special assessment, restitution, and forfeiture obligations imposed upon him by the plea agreement. Ataya ,
Dissenting Opinion
DISSENT
When a person pleads guilty, his world is turned upside down. Because the plea surrenders certain constitutional rights, it *327must be voluntary and intelligent. And if the plea is in federal court, the defendant must be told of particular consequences as required by Federal Rule of Criminal Procedure 11. This recital helps ensure that the defendant knowingly pleads of his own free will. But the sentencing court need not tell the defendant all the ways in which the plea could change his life. See, e.g. , King v. Dutton ,
The majority holds that a United States citizen's substantial rights may be affected by the district court's failure to read a warning that speaks only to "a defendant who is not a United States citizen." Fed. R. Crim. P. 11(b)(1)(O) (emphasis added). The omitted warning admonishes that a non-citizen "may be removed from the United States, denied citizenship, and denied admission to the United States in the future."
I disagree for two reasons. First, because the warning by its plain terms does not apply to United States citizens like Ataya, I do not agree that the failure to warn affected Ataya's substantial rights. A warning that speaks only to non-citizens does not make citizen -defendants aware of risks to which only citizens are susceptible, so it is not "reasonably probable" that Ataya would have proceeded to trial but for the failure to warn. United States v. Dominguez Benitez ,
I
The district judge's failure to recite all the consequences for which Rule 11 requires warnings is not necessarily a reason to allow the defendant to withdraw a guilty plea. To be sure, a federal sentencing court is always in error when it fails to issue the proper Rule 11 warnings. But not all errors, however easy to avoid, warrant reversal: under plain-error review, the district court's noncompliance must affect the defendant's substantial rights. The error must have affected the defendant such that it is reasonably probable "that, but for the error, he would not have entered the plea." Dominguez Benitez ,
As the majority acknowledges, see Maj. Op. 323-24 n.3, the Constitution does not require a sentencing court to warn of denaturalization, see El-Nobani v. United States ,
There is good reason not to craft a new rule, as the majority opinion implicitly does, that allows a defendant to withdraw a plea based on the failure to read an inapplicable warning. Consider, for example, an analogous situation in which a district court fails to give a defendant the Rule 11 warning about "the court's authority to order restitution," but does so in a case in which the district court does not order any restitution. So far? No harm, no foul: the warning should have been given, but the failure to warn has not affected the defendant's substantial rights. But presume that subsequently, the defendant learns that he is at risk of civil liability-a risk that is not cautioned against in the Rule 11 warnings but that is, the defendant may argue, close enough to the risk of a restitution order that the failure to warn of that risk affected his substantial rights. May the defendant now withdraw his guilty plea on the grounds that, if only the sentencing judge had warned him about restitution, he would have been on notice as to the risk of civil liability, thus making his plea involuntary? The answer should be no. But it is not a stretch to see how the majority's opinion today could be used to support, if not compel, an affirmative answer to that question in a future case.
II
Even assuming the Rule 11(b)(1)(O) warning would have made Ataya aware of the risk of denaturalization, I part ways with the majority's assertion that the record before us demonstrates that Ataya has met his burden to prove that there is a "reasonable probability" that, if only the district court had provided the warning, he would not have pleaded guilty. See Dominguez Benitez ,
When considering Ataya's reasons for accepting the plea, we must be aware that because "defendants obviously weigh their prospects at trial in deciding whether to accept a plea," and because a "defendant without any viable defense will be highly likely to lose at trial[,] ... a defendant facing such long odds will rarely be able to *329show prejudice from accepting a guilty plea that offers him a better resolution than would be likely after trial."
We weigh these considerations against those Ataya would have had for rejecting the plea agreement, had he known about the potential denaturalization risk. Because, as Ataya concedes, "the record is completely silent as to potential immigration consequences," Appellant's Br. 14, or indeed any weighted preferences Ataya may have had concerning denaturalization and his plea agreement, the majority cites general considerations, including the seriousness of denaturalization and the severity of the conflict in Ataya's native Syria.
Denaturalization is a serious consequence, but the likelihood of Ataya's being denaturalized is unclear. Unlike removal in the case of a non-citizen, which is often a mandatory and automatic consequence of a guilty plea, see
Absent any evidence in the record that accepting this plea agreement created a real, significantly additional risk of denaturalization, I cannot conclude that Ataya would have considered this attenuated possibility to be so determinative as to create a reasonable probability that, but for the district court's failure to give the Rule 11(b)(1)(O) warning, he would not have pleaded guilty.
And while the conflict in Syria is indeed serious, Ataya has not shown that denaturalization would require his return to Syria. Even were he to be denaturalized, Ataya's ties to other countries would likely provide him with alternatives. The record reveals that Ataya has immediate family in Egypt (where his parents and four siblings reside), Sweden (where two siblings reside), and the United Arab Emirates (where one sibling resides). So even if he were denaturalized, the probability of which is unclear, it is far from certain that he would then face exile to Syria specifically.
In short, Ataya would almost certainly have lost at trial, he received substantial benefit from accepting the plea agreement, and the danger of denaturalization is uncertain and remote. To the extent that he faces a risk of denaturalization, that risk already existed in large part before the plea because of the pending state charges. Even if we could hold that it is reasonable to infer that the appropriate Rule 11(b)(1)(O) warning would have caused Ataya to become aware of potential denaturalization risks, the evidence that Ataya nevertheless would have accepted the plea agreement after weighing the overwhelming evidence of his guilt and the attenuated danger of denaturalization forestalls the conclusion that there is "a reasonable probability that, but for the error, he would not have entered the plea."
III
This discussion in no way condones the district court's failure to give each of the required Rule 11 warnings to Ataya. It must be repeated, once again, "that compliance with Rule 11 is not a difficult task." United States v. Pattee ,
But the only issue we are asked to decide-whether failure to give the Rule 11(b)(1)(O) warning affected Ataya's substantial rights-is answered by both the policy decision of the drafters of Rule 11 to omit a denaturalization warning and the particular factual record in this case. The sentencing judge's job is to be the referee of the defendant's plea-is it voluntary and knowing?-not a clairvoyant of the defendant's future. Ataya's world undoubtedly *331would change if his guilty plea stands, but he has not shown that the district court failed to tell him anything about that new world to give us a legally cognizable reason to question the voluntariness and knowingness of the plea.
With due respect to my colleagues, I therefore dissent.
The risk of denaturalization is not the only significant consequence omitted from the Rule 11 warnings. For example, under Rule 11, sentencing judges need not "warn defendants pleading guilty that they may lose their right to vote, to be a juror, to possess a firearm, to obtain professional licenses, student loans, or future employment opportunities." D. Brock Hornby, Over Ruled ,
Lee was an ineffective-assistance-of-counsel case, but its reasoning applies equally here.
Accepting the plea resulted in the government's dropping a charge under
Ataya's four codefendants, who had already pleaded guilty, were presumably available to testify against Ataya had he chosen to go to trial. And, among other evidence, the government had at its disposal taped conversations in which Ataya admitted, in so many words, to engaging in fraudulent activity.
Compare the facts here with those in Lee , in which the defendant and his trial attorney both testified that the defendant would have gone to trial had he been aware of the immigration consequences of his plea and the defendant told the trial judge that he would not want to plead guilty if it could result in his being deported. See Lee ,
The majority also mentions Ataya's relationship with his family, but this relationship is not so unique as to put Ataya in the class of "rare" cases in which prejudice can be shown.
Denaturalization is a consequence that comes neither automatically nor speedily. See
The record is silent as to whether Ataya ever stood trial on these charges and, if so, the outcome of that trial.