19‐1524‐pr
Rojas v. United States

                                  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 COURTʹS 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 ʺSUMMARY ORDERʺ). A
PARTY CITING 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 19th day of March, two thousand twenty.

PRESENT:            DENNIS JACOBS,
                    GUIDO CALABRESI,
                    DENNY CHIN,
                                         Circuit Judges.
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CRISTIAN ROJAS,
                                        Petitioner‐Appellant,

                              ‐v‐                                                  19‐1524‐pr

UNITED STATES OF AMERICA,
                                        Appellee.

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FOR PETITIONER‐APPELLANT:                                    RHIDAYA TRIVEDI (Ronald L. Kuby, on the
                                                             brief), Law Office of Ronald L. Kuby, New
                                                             York, New York.
FOR APPELLEE:                              JARED LENOW, Assistant United States
                                           Attorney (Richard Cooper and Karl Metzner,
                                           Assistant United States Attorneys, on the brief),
                                           for Geoffrey S. Berman, United States Attorney
                                           for the Southern District of New York, New
                                           York, New York.

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

New York (Abrams, J.).

              UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.

              Petitioner‐appellant Cristian Rojas appeals the district courtʹs order

entered May 16, 2019, denying his motion pursuant to 28 U.S.C. § 2255 to vacate his

judgment of conviction. On April 3, 2015, Rojas pled guilty to one count of conspiracy

to distribute and possess with the intent to distribute a controlled substance ‐‐ MDMA

(or ecstasy) ‐‐ in violation of 21 U.S.C. § 846, and on September 26, 2018, the district

court sentenced Rojas to time served. On appeal, Rojas contends that his § 2255 motion

should have been granted because the district court violated the Fifth Amendment and

Federal Rule of Criminal Procedure 11 when it informed him that he is ʺlikely to be

deportedʺ and that deportation ʺmay be mandatoryʺ as a consequence of his guilty plea.

We assume the partiesʹ familiarity with the underlying facts, the procedural history of

the case, and the issues on appeal.




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                                       DISCUSSION

I.     Applicable Law

               Federal Rule of Criminal Procedure 11 requires the court, during a plea

colloquy, to confirm that the defendant understands ʺthat, 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.ʺ Fed. R. Crim. P.

11(b)(1)(O).

               Rule 11 ʺis designed to ensure that a defendantʹs plea of guilty is a

voluntary and intelligent choice among the alternative courses of action open to the

defendant,ʺ Zhang v. United States, 506 F.3d 162, 168 (2d Cir. 2007), and our precedent

requires ʺstrict adherence,ʺ United States v. Pattee, 820 F.3d 496, 503 (2d Cir. 2016).

Nonetheless, all that is required is that a defendant be placed on notice that his guilty

plea has potential immigration consequences and that he be provided an opportunity to

discuss those consequences more fully with his attorney or with an immigration

specialist. Zhang, 506 F.3d at 169. As we noted in Zhang:

               To hold a sentencing court that has decided to address the
               topic to a higher standard of detail in explaining possible
               immigration ramifications ‐‐ a notoriously complex and
               constantly shifting area of law ‐‐ would likely have the
               perverse effect of encouraging sentencing courts simply to
               avoid the issue entirely, lest a reviewing court find a
               statement to be, in retrospect, misleading.

Id. at 169.



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               Where a Rule 11 challenge is brought in a motion under 18 U.S.C. § 2255,

the ʺmovant can successfully challenge [the] guilty plea conviction . . . only by

establishing that the violation constituted a constitutional or jurisdictional error, or by

showing that the error resulted in a complete miscarriage of justice or in a proceeding

inconsistent with the rudimentary demands of fair procedure.ʺ Lucas v. United States,

963 F.2d 8, 12‐13 (2d Cir. 1992) (internal quotations and citations omitted). The movant

must also show prejudice, meaning that ʺhe did not understand the consequences of his

plea, or that, if he had been properly advised, he would not have pled guilty.ʺ Id. at 13.

II.    Analysis

              The district court did not err in denying Rojasʹs motion because the

deportation warning given during his plea allocution was accurate and the record is

clear that Rojas fully understood the immigration consequences of his plea.1 Rojas pled

guilty to one count of conspiracy to distribute and possess with the intent to distribute

MDMA, in violation of 21 U.S.C. § 846, on April 3, 2015. Before accepting the plea, the

district court addressed Rojas as follows:

               [I]tʹs very important that you understand that as a result of
               your plea, youʹre likely to be deported and that deportation
               may be mandatory. Did you discuss the possible
               immigration consequences of your plea with your attorney?




1       The Government argues that Rojasʹs claim is procedurally barred by his failure to raise it
on direct appeal and was waived by his plea agreement. Because we hold that Rojasʹs claim
fails on the merits, we do not reach these procedural issues.


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Appʹx at 66. Rojas replied, ʺYes, your Honor.ʺ Appʹx at 67.

              Rojas contends that the courtʹs instructions failed to satisfy Rule 11

because the court used the words ʺlikelyʺ and ʺmay be mandatoryʺ when deportation

was, according to him, an unambiguous certainty in his case. But deportation was not a

certainty. As Rojas conceded in his motion below, at least two avenues of relief from

deportation remained potentially available to him following his guilty plea ‐‐ successful

completion of the Southern Districtʹs Young Adult Opportunity Program (which can in

certain circumstances result in the dismissal of charges), see Appʹx at 152 n.4, and the

filing of a claim for relief under the Convention Against Torture. See Appʹx at 163 n.2.

Thus, even though Rojasʹs chances of avoiding removal were slim, there was a

possibility that he could do so. If the district court had advised him that deportation

was certain, that advice would have been wrong. The district courtʹs statement that

ʺdeportation may be mandatoryʺ was accurate in the circumstances, and cannot form

the basis for a finding that Rojasʹs plea was involuntary. See Zhang, 506 F.3d at 168 (ʺIf

the statements were accurate at the time they were made, then they could not

reasonably be said to be misleading and could not have rendered [the defendantʹs]

guilty plea involuntary.ʺ). And even assuming there was error, on this record the error

was not plain.

                                         *   *   *




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             We have considered Rojasʹs remaining arguments and conclude they are

without merit. For the foregoing reasons, we AFFIRM the judgment of the district

court.

             The mandate shall issue forthwith.

                                       FOR THE COURT:
                                       Catherine OʹHagan Wolfe, Clerk




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