Criminal Practice – Immigration Consequences of Guilty Plea – Withdrawal of Guilty Plea

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The district court’s failure to provide advice on immigration consequences of Defendant’s guilty plea did not affect Defendant’s substantial rights.

We affirmed the judgments of conviction for both Defendant and his company.

Defendant was the founder and CEO of a technology company. Defendant pleaded guilty, on behalf of himself and on behalf of his company, to 20 counts of wire fraud for fraudulently obtaining and reselling Internet Protocol (IP) addresses. After the guilty pleas had been entered, Defendant moved to withdraw them, arguing that intervening Supreme Court precedent invalidated the theory of prosecution for the wire fraud convictions. The district court denied Defendant’s motion. Defendant also maintained that the district court erred in failing to advise him of the immigration consequences of his guilty plea and that his counsel was ineffective for failing to advise him of those consequences. Separately, Defendant’s company asserted that Defendant lacked the requisite authority to enter guilty pleas on its behalf.

Specifically, among other things, Defendant maintained that the district court abused its discretion in denying his motion to withdraw his guilty plea because the district court had failed to advise him of the immigration consequences of his guilty plea in violation of Federal Rule of Criminal Procedure 11(b)(1)(O). Although we agreed that the district court erred in failing to provide this warning, we found its failure to do so harmless. Defendant is a naturalized U.S. citizen who was born in Iran. Although Defendant was charged with criminal conduct that began prior to his naturalization, Defendant’s pre-naturalization conduct for which he was indicted, arrested, and convicted of after being naturalized could subject him to denaturalization.

The district court erred by failing to inform Defendant of immigration consequences if he entered a guilty plea as mandated by Federal Rule of Criminal Procedure 11(b)(1)(O). Indeed, at oral argument, the Government agreed that the district court’s failure to read the warning was error. That did not end our analysis, however. If a criminal defendant demonstrates that the district court abused its discretion by failing to give a Rule 11(b)(1)(O) warning, the burden shifts to the prosecution to prove that the error was harmless. Here, the Government met this burden. The district court’s failure to provide the Rule 11(b)(1)(O) advice did not affect Defendant’s substantial rights. The text of the Rule references only immigration consequences for those individuals who are not United States citizens. At the time Defendant pleaded guilty, he was a citizen of the U.S., and he remains a citizen today. Thus, a warning meant for those who are not U.S. citizens would not have put Defendant on notice of the potential immigration consequences.

Affirmed.

United States v. Amir Golestan (Lawyers’ Weekly No. 001-155-25, 21 pp.) (Nicole G. Berner, J.) Appealed from the U.S. District Court for the District of South Carolina, at Charleston (Richard Mark Gergel, J.) ARGUED: Jeremy A. Thompson, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Columbia, South Carolina; Richard Klugh, LAW OFFICE OF RICHARD C. KLUGH PH1, Miami, Florida, for Appellants. Andrea Gwen Hoffman, OFFICE OF THE UNITED STATES ATTORNEY, Charleston, South Carolina, for Appellee. ON BRIEF: Adair F. Boroughs, United States Attorney, Columbia, South Carolina, Amy F. Bower, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charleston, South Carolina, for Appellee. U.S. Court of Appeals for the Fourth Circuit