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08/31/82 United States of America v. Paul A. Russell

August 31, 1982

UNITED STATES OF AMERICA

v.

PAUL A. RUSSELL, APPELLANT 1982.CDC.239 DATE DECIDED: AUGUST 31, 1982



UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

Appeal from the United States District Court for the District of Columbia

APPELLATE PANEL:

Wright and Mikva, Circuit Judges, and William J. Jameson,* Senior District Judge for the District of Montana. Opinion for the Court filed by Circuit Judge Mikva. Opinion concurring in part and dissenting in part filed by Senior District Judge Jameson.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MIKVA

The defendant, a resident alien, entered a guilty plea after negotiations with the United States Attorney. When deportation proceedings based on the resulting conviction were later initiated against the defendant, he moved under Fed. R. Crim. P. 32(d) to withdraw the plea. The district court denied the motion, noting that the possibility of deportation is not a direct consequence of a guilty plea under Fed. R. Crim. P. 11. Although this is a correct statement of the law, it does not exhaust the issues raised by the defendant, and we therefore hold that the district court abused its discretion in finding the defendant's motion governed by United States v. Sambro, 147 U.S. App. D.C. 75, 454 F.2d 918 (D.C. Cir. 1971). Moreover, the supplemental record on appeal makes it clear that the prosecution made misrepresentations concerning the deportation consequences of the defendant's plea. Accordingly, rather than remanding this case for further consideration of the Rule 32(d) motion, we must vacate the defendant's guilty plea. I. BACKGROUND

Paul Russell, a twenty-three year old citizen of Jamaica, has been a legal resident of the United States for eight years. On March 26, 1981, he was driving a car when it was stopped by policemen. A co-defendant, Grey, was riding in the front passenger seat. On the car's front floor, at Grey's feet, the police discovered a bag containing approximately one pound of marijuana. The police also seized a nine millimeter automatic pistol. The location of the handgun in the car is disputed.

An indictment filed against Russell and Grey in April 1981 contained four counts. Counts I and II charged Russell and Grey with possession of marijuana, and possession with intent to distribute. Counts III and IV charged Russell alone with carrying a handgun without a license, and possession of a prohibited weapon. *fn1 Counts II and III (simple possession and carrying an unlicensed handgun) are misdemeanors; the other two counts are felonies.

After bargaining with the United States Attorney, Russell agreed to plead guilty to both misdemeanor counts and the government agreed not to allocate against him at sentencing. The plea bargaining was complicated, however, by the fact that Russell denied possession or knowledge of the handgun and thus protested his innocence to the third count of the indictment. Although the police officers seemed prepared to testify that the gun was recovered from Russell's person, Russell contended that the gun was hidden in the bag containing marijuana and that he did not know about the gun until the police discovered it.

Russell therefore tendered his plea under the doctrine of North Carolina v. Alford, 400 U.S. 25, 27 L. Ed. 2d 162, 91 S. Ct. 160 (1970), which approved plea bargains even in situations when the defendant disclaims guilt. Russell also offered a factual plea to the second count of the indictment, admitting only that he knew the bag contained marijuana. These terms were acceptable to the United States Attorney, and after some colloquy the district court accepted the plea. Plea Transcript (Plea Tr.), June 5, 1981. In August 1981, the district court sentenced Russell to concurrent one-year terms of incarceration and three years of probation. All but one month of the sentence of incarceration was suspended.

In September 1981, the Immigration and Naturalization Service instituted deportation proceedings against Russell under 8 U.S.C. ยง 1251 (1976). *fn2 Almost immediately, four days later, Russell moved to vacate his sentence and to withdraw the plea of guilty under Rule 32(d). Russell argued that he had not understood the consequences of the plea because he did not realize that he was subject to deportation based on the misdemeanor convictions.

The district court denied Russell's motion without a hearing. In a brief memorandum order, the district court stated:

Defendant has moved to withdraw his plea of guilty. He claims that neither the Court nor the prosecutor advised him that he might be deported on account of committing the crimes of which he stands convicted. The possibility of deportation is not a "direct" consequence of his conviction, anymore than would be the impact of conviction upon his credit rating, employment prospects or the sentence he might receive if he is again convicted of some crime. See United States v. Sambro, 147 U.S. App. D.C. 75, 454 F.2d 918, 922 (D.C. Cir. 1971).

Order, October 15, 1981. II. THE ...


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