                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 16a0389n.06

                                          No. 15-5921
                                                                                       FILED
                          UNITED STATES COURT OF APPEALS                          Jul 12, 2016
                               FOR THE SIXTH CIRCUIT                         DEBORAH S. HUNT, Clerk

LEO PARRINO,                                            )
                                                        )
       Petitioner-Appellant,                            )
                                                               ON APPEAL FROM THE
                                                        )
                                                               UNITED STATES. DISTRICT
v.                                                      )
                                                               COURT FOR THE WESTERN
                                                        )
                                                               DISTRICT OF KENTUCKY
UNITED STATES OF AMERICA,                               )
                                                        )
       Respondent-Appellee.                             )


       Before: COOK and KETHLEDGE, Circuit Judges; SARGUS, District Judge.*

       KETHLEDGE, Circuit Judge.           Pharmacist Leo Parrino pled guilty to a federal

misdemeanor for introducing and delivering misbranded inhalation drugs into interstate

commerce. As a result of his conviction, he cannot participate in any federal healthcare program

for five years. Parrino petitioned the district court to set aside his conviction, arguing that he

would not have pled guilty had he known that his conviction would effectively prevent him from

working as a pharmacist. The district court denied Parrino’s petition and we affirm.

                                                I.

       Parrino began working as a pharmacist in 1974. In 2002, he went to work for National

Respiratory Services, where he was responsible for preparing and mixing pharmaceutical

ingredients to create respiratory medications. In 2008, an FDA investigator audited National

Respiratory and found that it was distributing extremely subpotent doses of budesonide, a steroid



       *
         The Honorable Edmund A. Sargus, Jr., Chief Judge of the United States District Court
for the Southern District of Ohio, sitting by designation.
No. 15-5921, Parrino v. United States


suspension used in inhalers to treat asthma and chronic obstructive pulmonary disease. The FDA

investigator found company records showing that in 2005, National Respiratory had tested

samples of its budesonide and found that much of it was subpotent and that some of it was

superpotent. National Respiratory had shipped this defective (and thus misbranded) budesonide

to patients in over a dozen states. Many of the misbranded budesonide doses were billed to

Medicare.

       In 2009, federal investigators contacted Parrino, who in 2006 had moved on to work as a

pharmacist for K-Mart. According to the investigators, they specifically asked Parrino whether

National Respiratory had shipped any subpotent or superpotent batches. Parrino said that any

such batches had been destroyed before they were shipped to patients.            The investigators

returned later in the year. They asked him again whether National Respiratory had shipped any

defective batches of budesonide, and again Parrino denied that he had. They then showed

Parrino the company’s own lab reports indicating that its budesonide was defective. Parrino then

changed his story: he admitted that he knew National Respiratory had shipped some defective

budesonide and that he had told National Respiratory’s COO about the problem. At the end of

the interview, he prepared and signed a handwritten statement acknowledging that, while he

worked as National Respiratory’s pharmacist, he was aware that he had prepared defective

(misbranded) budesonide that the company later shipped to patients.

       In making that concession, Parrino had admitted to participation in a federal crime under

21 U.S.C. § 331(a), which prohibits the delivery of misbranded drugs into interstate commerce.

Violations are punishable by up to a year in prison, or three years if the act is committed with the

“intent to defraud and mislead[.]” 21 U.S.C. § 333(a)(1)-(2). In May 2010, lawyers from the

U.S. Attorney’s office in Louisville met with Parrino and his lawyer, Kenneth Plotnik. They told




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Parrino that they hoped to secure his cooperation in a criminal case against National

Respiratory’s COO.       If Parrino cooperated, the government would charge him with a

misdemeanor violation of the law against misbranding; if Parrino refused, he would face a felony

prosecution and could be held liable for over $2 million in restitution.

       The next day, according to Plotnik, he and Parrino met to discuss Parrino’s options.

Again according to Plotnik, Parrino was “extremely distraught . . . and he was unwilling to really

even discuss [possible] defenses very much. He was going to plead guilty to the misdemeanor,

and if there were consequences, we would deal with them later.” Parrino, according to Plotnik,

was well aware that there would be collateral consequences if he pled guilty to the misdemeanor

charge, including the possible revocation of his pharmacist’s license by the Kentucky Board of

Pharmacy.

               He knew that coming in. He also knew that there was some—there
               was another thing called this statute that would expel him from
               prescribing. He knew there was a statute out there. He knew there
               was some federal—he had either done some research between the
               year after he had been contacted by the agents and he contacted
               me, or maybe he [knew] it from his continuing pharmaceutical
               education, but he knew that there was this exclusion statute
               associated with a fraud conviction and most—but we definitely
               knew about this.

       Plotnik thereafter researched the federal statute in question, 42 U.S.C. § 1320a-7, which

instructs the Secretary of Health and Human Services to exclude (for five years) certain

individuals and entities from participation in any federal health-care program on a mandatory or

permissive basis, depending on certain conditions, such as whether the excluded person has been

convicted of certain crimes or has had his license suspended by a state licensing authority. See

42 U.S.C. § 1320a-7. Plotnik became convinced that Parrino would fit within the terms of the

“permissive” portion of the statute, so that it would be up to the Secretary’s discretion whether




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No. 15-5921, Parrino v. United States


Parrino was barred from participating in federal health-care programs. About one month after

Parrino and Plotnik met with the U.S. Attorney’s office, Plotnik advised Parrino that Parrino

“was going to be in this permissive section and not in this mandatory exclusion section . . . of

course, I couldn’t guarantee that they wouldn’t exclude him because even under the permissive

section, exclusion was still a possibility.”

       Thus, according to Plotnik, Parrino and Plotnik had discussed the possibility that

“[Parrino] could lose his license.      He could lose the ability to prescribe medication.       But

[Parrino] was adamant that he would not . . . face trial [for] the felony. He would not do it.”

Plotnik was interested in exploring defenses for Parrino: “I wanted to take it to trial. I thought

there were problems—constitutional problems with [the case].” But “Parrino was very unwilling

to discuss defenses.” Plotnik thereafter went about negotiating a plea that would downplay

Parrino’s role in the criminal conduct at National Respiratory, as part of a “strategy . . . both for

the purpose of the Board of Pharmacy and for the exclusion statute, to minimize [Parrino’s]

activities or behaviors.” Parrino eventually pled guilty to the misdemeanor misbranding charge

in September 2011. The date of his sentencing was dragged out by continuances, and Plotnik

wrote in emails to Parrino that this was a good thing: “this is going to postpone the day when

you are going to face any discipline from the Board of Pharmacy.”

       In 2013, the district court sentenced Parrino to one year of probation and ordered him to

pay $14,000 in restitution. The Office of the Inspector General at the Department of Health and

Human Services later determined that Parrino’s five-year exclusion from federal programs was

mandatory. The Kentucky Board of Pharmacy also began investigating the possible revocation

of Parrino’s license. Parrino thereafter lost his job as a pharmacist at K-Mart.




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No. 15-5921, Parrino v. United States


       Parrino thereafter petitioned the district court to vacate his conviction because, he argued,

he would have risked trial rather than plead guilty had he known that he would face mandatory

exclusion from federal programs due to his misdemeanor conviction. He argued that Plotnik’s

failure to advise him that a misdemeanor conviction would likely subject him to mandatory

exclusion was constitutionally ineffective assistance of counsel, and that his guilty plea was

therefore defective. The district court held a hearing to consider Parrino’s claim. There, Parrino

testified that he “had no discussions with Mr. Plotnik regarding [the] potential collateral

consequences” of a guilty plea.

       The district court denied Parrino’s petition after concluding that Plotnik’s alleged failure

to advise Parrino of the potential collateral consequences of his guilty plea did not violate

Parrino’s Sixth Amendment right to effective assistance of counsel. The court also concluded

that, even if Parrino did have a right to be advised of the collateral consequences of his plea,

Plotnik in fact fulfilled his obligation. The court found Plotnik’s testimony more credible than

Parrino’s, and held as a factual matter that “Plotnik made Parrino aware of the provisions of the

[exclusion] statute and its possible application to [Parrino] based upon the entry of his

misdemeanor guilty plea.” Finally, the court concluded that, even if Plotnik had failed to

properly advise Parrino of the collateral consequences, that omission did not prejudice Parrino,

because it would have been objectively unreasonable for Parrino to pass up the plea deal he

received and instead face a felony trial and a potential restitution award of $2.4 million. This

appeal followed.

                                                II.

       We review the district court’s legal conclusions de novo and its factual findings for clear

error. See United States v. Jackson, 181 F.3d 740, 743-44 (6th Cir. 1999). We afford “great




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No. 15-5921, Parrino v. United States


deference” to the district court’s credibility determinations. United States v. Grubbs, 773 F.3d

726, 731 (6th Cir. 2014).

          The Sixth Amendment guarantees that “[i]n all criminal prosecutions, the accused shall

enjoy the right to . . . the Assistance of Counsel for his defence.” U.S. Const. amend. VI

(emphasis added). The right to counsel is not a right to competent legal advice regarding all

aspects of the accused’s life. Rather, it is a right to “Assistance” in a particular type of legal

proceeding—the “criminal prosecution[.]” Id. That right stems from the recognition that, in an

adversarial trial, “access to counsel’s skill and knowledge is necessary to accord . . . ample

opportunity to meet the case of the prosecution[.]” Strickland v. Washington, 466 U.S. 668, 685

(1984).

          A guilty plea, however, is a “break in the chain” of criminal proceedings. Tollett v.

Henderson, 411 U.S. 258, 267 (1973). The integrity of the criminal-justice system requires the

presumption that the plea is final. So “[w]hen a criminal defendant has solemnly admitted in

open court that he is in fact guilty of the offense with which he is charged . . . [h]e may only

attack the voluntary and intelligent character of the guilty plea by showing that the advice he

received from counsel was not within the standards” of effective representation required by the

Sixth Amendment. Id.

          Thus, an argument that counsel rendered constitutionally-ineffective assistance in

advance of trial is an argument that counsel was so ineffective that the defendant either pled

guilty involuntarily, pled guilty without awareness of the elements of the crime he committed, or

pled guilty without awareness of potentially successful defenses to criminal liability. Cf. United

States v. Ruiz, 536 U.S. 622, 630 (2002) (noting that a knowing guilty plea “does not require

complete knowledge of the relevant circumstances”). Typically, a defendant’s failure to consider




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No. 15-5921, Parrino v. United States


the numerous potential collateral consequences of a criminal conviction—e.g., prohibitions on

certain categories of employment, or future limitations on constitutional rights—does not vitiate

a guilty plea. See, e.g., United States v. Youngs, 687 F.3d 56, 61-63 (2d Cir. 2012); United States

v. Delgado-Ramos, 635 F.3d 1237, 1239-40 (9th Cir. 2011) (per curiam). In 2010, however, the

Supreme Court held that counsel’s failure to advise a criminal defendant that a guilty plea would

lead to his deportation voided the defendant’s guilty plea so long as the defendant would

reasonably have proceeded to trial but for counsel’s failure. See Padilla v. Kentucky, 559 U.S.

356, 374 (2010). Parrino argues that the rule expressed in Padilla should apply to his case, and

that Plotnik therefore had a duty to advise Parrino of the potential collateral consequences of

Parrino’s plea, including the risk that Parrino would be barred from participating in federal

health-care programs. Parrino asserts that Plotnik neglected that duty and that Parrino’s guilty

plea was thus entered involuntarily.

       Apart from the common ground of attorney advice, however, Parrino’s case has little in

common with Padilla’s. The holding in Padilla was limited to advice “concerning the specific

risk of deportation” and was based upon a long tradition that placed deportation in “close

connection to the criminal process,” which made deportation “uniquely difficult to classify as

either a direct or a collateral consequence.” Id. at 366. The Padilla Court also noted the

particularly “harsh consequences of deportation.”        Id. at 360.    The penalty of complete

banishment from the United States is different in kind from the burden of five years’ exclusion

from federal health-care programs.

       Yet even assuming for the sake of argument that Plotnik had a duty to advise Parrino of

the collateral regulatory consequences of Parrino’s guilty plea, Plotnik fulfilled that duty here by

thoroughly discussing with Parrino the potential collateral consequences of a guilty plea. Parrino




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No. 15-5921, Parrino v. United States


says those discussions were not sufficient because Plotnik did not tell Parrino that he was

guaranteed to be subject to “mandatory exclusion.”          Parrino Br. at 23 (quoting Plotnik’s

testimony). But Parrino demands much more of Plotnik than the Court asked of defense counsel

in Padilla. There, the Court required that counsel have a “rudimentary understanding of the

deportation consequences of a particular criminal offense” so that he would “be able to plea

bargain creatively with the prosecutor in order to craft a conviction and sentence that reduce the

likelihood of deportation[.]” Padilla, 559 U.S. at 373. The Padilla Court required further that

counsel advise his client whether his plea carries the “risk” of deportation. Id. at 374. Here,

Plotnik thought Parrino fit within the “permissive” exclusion provision, and crafted a plea

agreement written to minimize Parrino’s culpability and persuade the Office of the Inspector

General at the Department of Health and Human Services—which administers the exclusion

statute—that Parrino deserved to continue practicing as a pharmacist. Plotnik’s strategy was a

reasonable one: defendants who are convicted of misdemeanor misbranding, as Parrino was, are

sometimes subject to the permissive exclusion provision contained in 42 U.S.C. § 1320a-7(b).

See Friedman v. Sebelius, 686 F.3d 813, 817 (D.C. Cir. 2012). But Plotnik warned Parrino that

there was still a real risk of exclusion: “I couldn’t guarantee that they wouldn’t exclude him.”

Plotnik’s advice met the standard for effective assistance of counsel articulated in Padilla.

       The district court’s judgment is affirmed.




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