17-3800
Lozano v. United States of America

                                     UNITED STATES COURT OF APPEALS
                                        FOR THE SECOND CIRCUIT

                                             SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN
CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
“SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON
ANY PARTY NOT REPRESENTED BY COUNSEL.

       At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York,
on the 26th day of February, two thousand nineteen.

PRESENT:
                    JON O. NEWMAN,
                    SUSAN L. CARNEY,
                    RICHARD J. SULLIVAN,
                                 Circuit Judges.

_________________________________________

JIMMY LOZANO,

                    Petitioner -Appellant,

                              v.                                         No. 17-3800-cv

UNITED STATES OF AMERICA,

                    Respondent- Appellee.

_________________________________________

FOR APPELLANT:                                        STEPHANIE M. CARVLIN, Law Office of
                                                      Stephanie M. Carvlin, New York, NY.

FOR APPELLEE:                                         NICHOLAS FOLLY, Asst. U.S. Atty., New
                                                      York, NY (Anna M. Skotko, Asst. U.S.
                                                      Atty., New York, NY on the brief), for
                                                     Geoffrey S. Berman, U.S. Atty. for the
                                                     Southern District of New York.

       Appeal from a judgment of the United States District Court for the Southern District
of New York (Koeltl, J.).

       UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the case is REMANDED.

       Jimmy Lozano appeals from the October 20, 2017, judgment of the District Court for

the Southern District of New York (John G. Koeltl, District Judge) denying his motion for a

writ of coram nobis to vacate his 2004 conviction for Hobbs Act robbery. He contends that his

guilty plea resulting in that conviction was involuntary because the Government affirmatively

misrepresented his citizenship status by issuing him a passport and therefore misled him as to

the consequences of his plea. His claim arises from the following facts.

       Lozano was born in the Dominican Republic on February 9, 1981, and entered the

United States with his mother and other family members as a lawful permanent resident in

1993 when he was twelve years old. On July 24, 2000, when Lozano was 19, his mother became

a naturalized citizen of the United States. One of the requirements for an alien child to acquire

United States citizenship is that a parent has become a naturalized citizen before the child has

reached the age of 18. See 8 U.S.C. § 1431(a)(2)).

       Two years later, Lozano applied for a United States passport, and the Department of

State issued one to him. A United States passport “ha[s] the same force and effect as proof of

United States citizenship as certificates of naturalization or of citizenship issued by the

Attorney General or by a court having naturalization jurisdiction.” 22 U.S.C. § 2705(1).



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       In November 2004, Lozano pled guilty to conspiracy to commit Hobbs Act robbery,

in violation of 18 U.S.C. § 1951. The District Court advised Lozano of several consequences

of his plea, and then stated, “There are no other collateral consequences that I should mention,

I take it?” The prosecutor said, “I believe the defendant is a U.S. citizen.” However, the

Presentence Report (“PSR”) stated that Lozano was a citizen of the Dominican Republic who

had entered the United States in 1998 and was a legal permanent resident. There were no

objections to the PSR. The District Court sentenced Lozano to a term of 33 months’

imprisonment. He was released from custody in February 2006.

       After Lozano’s passport expired in late 2012, he applied for a renewed passport, which

the State Department issued to him.

       In August 2015, Lozano pled guilty to conspiracy in violation of 21 U.S.C. § 846 to

distribute narcotics in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(c). He was sentenced to

time served followed by three years of supervised release.

       After Lozano pled guilty but before he was sentenced for the drug offense, the State

Department sent him a letter stating that it was revoking his passport because it had been

issued in error. Lozano contends he did not receive that letter.

       After Lozano was sentenced in the District of Vermont, officials from the Department

of Homeland Security served him with a notice to appear for removal proceedings. The notice

stated that Lozano was not a citizen of the United States and that he was removable based on

his 2005 conviction, which constituted an aggravated felony. The removal proceedings are

ongoing.

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         In January 2017, Lozano filed a petition in the Southern District of New York for a

writ of error coram nobis, seeking to vacate his 2005 Hobbs Act robbery conviction on the

ground that it was involuntary and unknowing in violation of the Due Process Clause. He

argued that he was misinformed of the immigration consequences of his plea because all

parties, including the Court, believed that he was a citizen at the time of his plea. He

represented that the Government, through the State Department, misled him about his

immigration status, and that he would not have pled guilty if he had known that he would be

subject to deportation.

         The District Court denied the petition. In denying the petition, the Court noted that

while some cases have indicated “that the Fifth Amendment now contains a right to accurate

deportation information prior to the entry of a guilty plea, Lozano has identified no authority

that endorses squarely such a rule,” and even if such a rule now existed it could not be applied

retroactively to benefit Lozano. The Court also noted that the appellant “may not be able to

meet the second requirement for coram nobis relief, namely[,] that sound reasons exist for [his]

failure to seek earlier appropriate relief” because the PSR stated that he was not a citizen at

the time. However, the Court made no finding on this issue and did not deny relief on that

basis.

         A petitioner seeking coram nobis relief “must demonstrate that 1) there are circumstances

compelling such action to achieve justice, 2) sound reasons exist for failure to seek appropriate

earlier relief, and 3) the petitioner continues to suffer legal consequences from his conviction

that may be remedied by granting of the writ.” Foont v. United States, 93 F.3d 76, 79 (2d Cir.

1996) (internal citations, quotation marks, and alterations omitted).
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       The District Court concluded that Lozano’s guilty plea to the Hobbs Act robbery

offense was not entered in violation of the Due Process Clause of Fifth Amendment because

that clause did not assure a right to receive accurate information concerning deportation and,

in any event, such a right was not applicable retroactively. However, Lozano claims his plea

was involuntary, not only for lack of accurate information, but because the Government

affirmatively misled him to believe that he was a United States citizen and not subject to

deportation.

       Before we consider the merits of this claim, two preliminary issues need to be resolved

by the District Court. The first issue is whether “sound reasons exist for failure to seek

appropriate earlier relief,” Foont, 93 F.3d at 79 (alteration omitted), in view of the fact that the

PSR reported that Lozano was not a United States citizen, which arguably obliged inquiry to

determine whether he was a citizen. The District Court adverted to this issue, but did not

resolve it. On remand, the District Court should resolve the issue.

       The second issue is whether Lozano would not have entered a guilty plea had he known

that he was subject to deportation. If he would have pled anyway, granting a writ of coram nobis

is not necessary “to achieve justice,” Foont, 93 F.3d at 79. “A finding of impermissible conduct

is a necessary but not a sufficient condition for the success of an involuntariness argument.

The petitioner also must show a reasonable probability that, but for the misconduct, he would

not have pleaded guilty and would have insisted on going to trial.” Ferrara v. United States, 456

F.3d 278, 293-94 (1st Cir. 2006) (internal citation, quotation marks, and alterations omitted));

see also United States v. Avellino, 136 F.3d 249, 256 (2d Cir. 1998) (applying the reasonable

probability standard to a Brady violation).
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       We will therefore remand to the District Court for resolution of the two issues we have

identified. Because the District Court’s resolution of these issues is preliminary to our

consideration of the merits of the appeal, the remand will be made pursuant to United States v.

Jacobson, 15 F.3d 19, 22 (2d Cir. 1994), so that after the District Court enters an order making

its determinations, either party may restore this appeal to our jurisdiction by sending a letter

to the Clerk of this Court within twenty-one days of such order.

       On a final note: Judge Sullivan’s dissent points to our precedent describing deportation

as “a collateral, rather than direct, consequence of conviction” and holding that “a district

court is not required to explain the possible immigration consequences of a plea in order to

ensure its voluntariness.” Infra Sullivan, J., dissent. But, as we have previously observed in

United States v. Couto, 311 F.3d 179 (2d Cir. 2002), the cases that purportedly control (and that

are cited by the dissent here) were all decided before the 1990s, when Congress enacted

significant changes to immigration law that shifted deportation from a remote and merely

possible consequence of certain convictions to being “virtually certain” for noncitizens. Id. at

189-90; see also Padilla v. Kentucky, 559 U.S. 356, 360-66, 374 (2010) (recounting the history of

immigration legislation in the 20th century, observing that “recent changes in our immigration

law have made removal nearly an automatic result for a broad class of noncitizen offenders,”

and holding that noncitizen defendants have a Sixth Amendment right to be informed

“whether [a] plea carries a risk of deportation”). In light of these developments, we noted in

Couto that the question whether deportation should be deemed a “direct consequence” of a

guilty plea “deserves careful consideration” anew. 311 F.3d at 190. For these reasons, we do

not believe that Michel v. United States, 507 F.2d 461 (2d Cir. 1974), controls this petition.

                                                 6
SULLIVAN, Circuit Judge, dissenting:

        I respectfully dissent. This Circuit has consistently held that deportation is a collateral,

rather than a direct, consequence of conviction and that a district court is not required to

explain the possible immigration consequences of a plea in order to ensure its voluntariness.

See, e.g., Michel v. United States, 507 F.2d 461, 465 (2d Cir. 1974); United States v. Santelises, 476

F.2d 787, 789-90 (2d Cir. 1973); United States v. Parrino, 212 F.2d 919, 921-22 (2d Cir. 1954).

While dicta in several cases have sown uncertainty regarding the future prospects of that

precedent in light of intervening developments in immigration law and the Supreme Court’s

Sixth Amendment ruling in Padilla v. Kentucky, 559 U.S. 356 (2010), see, e.g., United States v.

Youngs, 687 F.3d 56, 62-63 (2d Cir. 2012); United States v. Couto, 311 F.3d 179, 189-90 (2d Cir.

2002), abrogated on other grounds by Padilla, 559 U.S. 356, the fact remains that these precedents

have never been overruled. Indeed, it bears noting that all Circuits that have squarely addressed

the issue since Padilla have reaffirmed the holding that immigration consequences remain

collateral for Fifth Amendment purposes. See United States v. Ataya, 884 F.3d 318, 323 n.3 (6th

Cir. 2018); United States v. Delgado-Ramos, 635 F.3d 1237, 1238-41 (9th Cir. 2011); see also United

States v. Carrillo-Estrada, 564 F. App’x 385, 387 (10th Cir. 2014). Therefore, unless and until

Michel is overturned by the Supreme Court or by this Court proceeding en banc, it remains good

law – meaning that district courts in this Circuit are under no constitutional obligation to

“anticipate the multifarious peripheral contingencies which may affect the defendant’s civil

liabilities, his eligibility for a variety of societal benefits, his civil rights or his right to remain in

the country, all of which might give rise to later claims that the plea was not voluntary in the
                                                    7
absence of informed consent . . . .” Michel, 507 F.2d at 466. In light of this binding precedent,

I do not share the majority’s view that the two issues identified for resolution on remand are

“preliminary issues” and would affirm the judgment below.




                                                    FOR THE COURT:
                                                    Catherine O’Hagan Wolfe, Clerk of Court




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