              NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                         File Name: 13a0947n.06

                                         No. 12-3735

                       UNITED STATES COURT OF APPEALS
                            FOR THE SIXTH CIRCUIT
                                                                                   FILED
                                                                              Nov 04, 2013
UNITED STATES OF AMERICA,                                                 DEBORAH S. HUNT, Clerk

       Plaintiff-Appellee,                                     On Appeal from the United
                                                               States District Court for the
              v.                                               Northern District of Ohio

RAUDELL RODRIGUEZ-GONZALES,

       Defendant-Appellant.


                                                         /

Before:       KEITH, GUY, and GIBBONS, Circuit Judges.

       RALPH B. GUY, JR., Circuit Judge.           Raudell Rodriguez-Gonzales (“Rodriguez”)

appeals his conviction and sentence for conspiracy to possess with the intent to distribute

marijuana. Rodriguez is not a United States citizen. The sole issue on appeal is whether the

rationale articulated in Padilla v. Kentucky, 559 U.S. 356 (2010), required the district court

to inform Rodriguez of the deportation risks attendant to his guilty plea during its Rule 11

colloquy. We conclude that it did not.

                                              I.

       On May 5, 2009, Rodriguez pleaded guilty pursuant to a non-binding plea agreement

to conspiracy to possess with the intent to distribute a large amount of marijuana in violation
No. 12-3735                                                                                  2

of 21 U.S.C. §§ 841 and 846. At his plea hearing, the court did not inform Rodriguez of the

deportation risk attendant to his guilty plea. On June 5, 2012, Rodriguez was sentenced to

240 months of imprisonment to be followed by ten years of supervised release.

       In this direct appeal, Rodriguez challenges his conviction and sentence, arguing that

the court’s failure to inform him of the deportation risk attendant to his guilty plea was an

error and that Rule 11(b) of the Federal Rules of Criminal Procedure, read in light of Padilla

v. Kentucky, mandates that the court provide such information as a part of its Rule 11

colloquy. In Padilla, the Supreme Court held that the Sixth Amendment right to effective

assistance of counsel requires that defense counsel “inform her client whether his plea carries

a risk of deportation.” 559 U.S. at 374. Rodriguez does not claim that his counsel was

ineffective under Padilla.

       Because Rodriguez failed to timely object to the alleged Rule 11 violation, we review

for “plain error and the burden is on the defendant to show that but for the error, he would

not have pleaded guilty.” United States v. Martin, 668 F.3d 787, 791 (6th Cir. 2012) (citing

United States v. Dominguez Benitez, 542 U.S. 74, 82-83 (2004)).

                                              II.

A.     El-Nobani v. United States

       The Fifth Amendment requires that the defendant enter his guilty plea “knowingly,

voluntarily, and intelligently.” United States v. Taylor, 627 F.3d 1012, 1017 (6th Cir. 2010)

(citing Brady v. United States, 397 U.S. 742, 748 (1970)). To meet this standard, we have

held that the district court need not inform the defendant of the potential deportation
No. 12-3735                                                                                             3

consequences of his plea. El-Nobani v. United States, 287 F.3d 417 (6th Cir. 2002). In El-

Nobani, we relied on the rule that the district court “need only [make the defendant] aware

of the direct consequences of the plea” and held that “the trial court is under no

constitutional obligation to inform the defendant of all the possible collateral consequences

of the plea.” Id. at 421 (citing King v. Dutton, 17 F.3d 151, 153 (6th Cir. 1994)) (emphasis

added). “A collateral consequence is one that ‘remains beyond the control and responsibility

of the district court in which that conviction was entered.’” Id. (citing United States v.

Gonzalez, 202 F.3d 20, 27 (1st Cir. 2000)). We reasoned that because “deportation is not

within the control and responsibility of the district court, . . . deportation is collateral to a

conviction.” Id.

        Rodriguez argues that Padilla calls our holding in El-Nobani into question because

the Padilla Court noted that deportation is “uniquely difficult to classify as either a direct or

a collateral consequence.”1 Padilla, 559 U.S. at 366. But in Padilla, the Court specifically

limited this observation to the context of the Sixth Amendment right to effective assistance

of counsel, stating that “[t]he collateral versus direct distinction is thus ill suited to evaluating

[an ineffective assistance of counsel] claim concerning the specific risk of deportation.” Id.

The Court made no comment on the distinction as it relates to the defendant’s Fifth

Amendment right that his plea be made “knowingly, voluntarily, and intelligently.” See

Brady, 397 U.S. at 748. Given that the duties of defense counsel under the Sixth Amendment


        1
         Rodriguez fails to cite El-Nobani in his briefs, although he cites cases from other circuits that
reached similar conclusions.
No. 12-3735                                                                                                 4

are greater than the court’s duties under the Fifth Amendment, see Libretti v. United States,

516 U.S. 29, 50-51 (1995), “the Padilla Court’s unwillingness to apply the direct/collateral

distinction in the Sixth Amendment context does not demonstrate the Court’s intention to do

away with that distinction entirely in the Fifth Amendment context.” United States v.

Youngs, 687 F.3d 56, 62 (2d Cir. 2012) (citing United States v. Delgado-Ramos, 635 F.3d

1237, 1240 (9th Cir. 2011) (noting that in Padilla the Court “had no occasion to consider the

scope of a district court’s obligation” under due process or Rule 11, or “the continued

viability of the distinction between direct and collateral consequences in the due process

context”).

        Guided by our decision in El-Nobani, the district court was not required to notify

Rodriguez of the potential deportation risks attendant to his guilty plea, and Padilla does not

change that fact. We cannot overrule El-Nobani (a prior published opinion) “unless a

decision of the United States Supreme Court mandates modification or this Court sitting en

banc overrules the prior decision.” United States v. Moody, 206 F.3d 609, 615 (6th Cir.

2000) (emphasis added). For the reasons discussed above, Padilla does not mandate that we

modify our holding.2




B.      Federal Rule of Criminal Procedure 11(b)

        2
         Beyond the fact that it was not an error for the court to fail to warn Rodriguez of the deportation
risks associated with his guilty plea, Rodriguez fails to meet his burden to prove that “but for the error, he
would not have pleaded guilty” as required by United States v. Martin, 668 F.3d 787, 791 (6th Cir. 2012).
No. 12-3735                                                                                                    5

        Alternatively, Rodriguez argues that the plain language of Federal Rule of Criminal

Procedure 11(b) mandates that the district court advise him of the deportation risk attendant

to his guilty plea in light of Padilla. Rule 11 requires that the court advise the defendant of

“any maximum possible penalty, including imprisonment, fine, and term of supervised

release” and “any mandatory minimum penalty.” FED. R. CRIM. P. 11(b)(1)(H) and (I)

(emphasis added). Because Padilla referenced the risk of deportation as a “penalty” of

conviction, 559 U.S. at 365-66, Rodriguez reasons that Rule 11(b) obligates the district court

to advise defendants of the deportation risk as it is a “penalty.”3 We disagree. The Padilla

Court never considered Rule 11 in its analysis and its reference to deportation as a “penalty”

does not, without more, transform the district court’s obligations under Rule 11.

        Since Padilla, Rule 11 has been amended to require the district court to state in its

plea colloquy 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.” FED. R. CRIM. P. 11(b)(1)(O).4 In support of this amendment, the

Advisory Committee on Criminal Rules noted that “the Court’s decision [in Padilla did] not

require the proposed amendment” but that immigration consequences were a “collateral”




        3
          In Padilla, the Court made the following references to deportation as a “penalty”: “We have long
recognized that deportation is a particularly severe ‘penalty,’” (id. at 365 (internal citations omitted)); “Our
law has enmeshed criminal convictions and the penalty of deportation for nearly a century” (id. at 365-66
(internal citations omitted)); and “we find it ‘most difficult’ to divorce the penalty from the conviction in the
deportation context” (id. at 366 (citation omitted)).
        4
         Absent Congressional action, the amendment will take effect December 1, 2013.
No. 12-3735                                                                   6

consequence worth distinguishing. Id. Advisory Committee’s note. Such commentary

further supports our holding.

       AFFIRMED.
