Friday, October 26th, 2007

“Might” Makes Right

United States v. Zhang, No. 05-6662-pr (2d Cir. October 23, 2007) (Winter, Cabranes, CJJ, Korman, DJ)

During a plea allocution, advising a defendant that he might be deported was good enough, even though ICE believed that deportation was mandatory.

Zhang, a chemist, manufactured and sold an illegal bodybuilding supplement, DNP. One of his customers died after taking Zhang’s concoction, while another was in a coma for ten days. Zhang ultimately pled guilty to one count of mail fraud. During the plea allocution, the prosecutor stated that Zhang was subject to “possible” deportation as a result of the plea. The magistrate judge echoed this, saying that the plea “could” result in his deportation. Similar equivocal statements about the possibility of deportation were made by the prosecutor and district judge at Zhang’s sentencing.

Once sentenced, however, Zhang was served a notice by ICE indicating that he faced mandatory deportation as a result of his conviction for an aggravated felony. He filed a 2255 motion that he was affirmatively misled by the prosecutor and the court about the immigration consequences of his plea, a violation of Rule 11. The district court agreed, and vacated the plea.

The circuit had a different view, and reversed the district court, at least on the particular facts presented here. Fraud offenses are only aggravated felonies if the loss to the victim(s) exceeds $10,000. At the time Zhang pled guilty it was “far from clear” that he was pleading to an aggravated felony because and the ultimate loss amount had not yet been settled. Although the plea agreement contained a larger loss amount, Zhang reserved the right to contest it. Thus, telling him that he faced
“possible” deportation was “completely accurate.”

This is a sad case. Zhang came to the United States at the age of seven after his family was granted political asylum. He has lived in the United States for more than twenty years, is married to an American citizen, and is not proficient in Chinese. The circuit has left a door open for him, however; his 2255 also argued that his attorney was ineffective. The court has remanded the case back to the district court for consideration of that claim.

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