                                                                             FILED
                           NOT FOR PUBLICATION                               DEC 06 2013

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                         U.S. COURT OF APPEALS



                           FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                       No. 12-50474

             Plaintiff - Appellee,              D.C. No. 8:08-cr-00144-DOC-1

       v.
                                                MEMORANDUM*
GILMA RUIZ, AKA Gilam Ruiz
Hernandez, AKA Gilma B. Ruiz
Hernandez, AKA Gilma Beatriz Ruiz
Hernandez, AKA Gilma B. Ruiz, AKA
Gilma Beatriz Ruiz,

             Defendant - Appellant.

                   Appeal from the United States District Court
                      for the Central District of California
                    David O. Carter, District Judge, Presiding

                     Argued and Submitted November 7, 2013
                              Pasadena, California

Before: GOODWIN, FISHER and CLIFTON, Circuit Judges.

      Gilma Ruiz appeals her conviction following the district court’s denial of her

motion to withdraw her guilty plea under Federal Rule of Criminal Procedure




        *
        This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
11(d)(2)(B). Reviewing for an abuse of discretion, we vacate the plea and the

conviction and remand for further proceedings consistent with this decision.

      Under Rule 11(d)(2)(B), a defendant need show only a “fair and just reason”

for withdrawing a plea. Ruiz was required to show (1) that she received improper

legal advice and (2) that the proper legal advice of which she was deprived could

have at least plausibly motivated a reasonable person in her position not to have

pled guilty. See United States v. Bonilla, 637 F.3d 980, 983 (9th Cir. 2011). Ruiz

has satisfied the second prong because she has longstanding ties to the United

States, having arrived here at the age of seven, having lived here for 30 years and

having two U.S.-born children. She plausibly contends that, if she had known the

full extent of the immigration consequences of pleading guilty, she would have

attempted to negotiate a different plea that would not have mandated deportation.

See United States v. Kwan, 407 F.3d 1005, 1017 (9th Cir. 2005) (“Kwan explains

that, had he been made aware of the deportation consequences of his conviction, he

would have explored the option of renegotiating his plea agreement.”), abrogated

on other grounds by Padilla v. Kentucky, 559 U.S. 356 (2010).

      As for the first prong, we are troubled by Ruiz’s apparent lack of candor in

the declaration she filed in support of her motion to withdraw her plea, where she

said she “had no idea that I might get deported.” That assertion is contradicted by


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the 2009 letter she sent to immigration officials, in which she acknowledged that

she had been advised by her lawyer that she “might face deportation.” The district

court, however, did not deny Ruiz’s motion on the ground that she was not

credible. Rather, the court denied the motion on the ground that Ruiz had received

adequate legal advice. It was legal error for the court to justify its conclusion by

reasoning that the deportation consequences of Ruiz’s plea were unclear—when it

was actually virtually certain that Ruiz will get deported given her plea—and that

the only advice Ruiz was thus entitled to receive was advice of a mere possibility

of deportation. Given the aggravated felony nature of the offense Ruiz pled to, our

interpretation of Padilla required that Ruiz be informed not that she might face

deportation, but instead that her deportation was a virtual certainty. See Bonilla,

637 F.3d at 984 (“A criminal defendant who faces almost certain deportation is

entitled to know more than that it is possible that a guilty plea could lead to

removal; he is entitled to know that it is a virtual certainty.” (citing Padilla, 559

U.S. at 369)).

      The district court’s legal error requires us to vacate the plea and conviction.

However, we are unable to ascertain from the record whether Ruiz has met her

burden of showing that she should be allowed to withdraw her plea, given that the

only support for her assertion that she was not advised of the virtual certainty of


                                           3
her deportation was a declaration that was directly contradicted by her own letter to

immigration officials. The district court is free to make this determination in the

first instance.

       We vacate the plea and conviction and remand for further proceedings

consistent with this decision. See Bonilla, 637 F.3d at 986.

       VACATED AND REMANDED.




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