Case Law Update: 2011-2014 Cumulative Edition

Holding: Even though Defendant may have known that some drug money was being used when she posted bail for her son, there was no basis to reasonably determine that Defendant conspired to further an illegal purpose in posting bail, so there was no factual basis for money laundering conspiracy.
U.S. v. Kyle, 94 Crim. L. Rep. 175 (9^th Cir. 10/30/13):

Holding: Trial judge impermissibly participated in plea negotiations under Rule 11(c)(1) when he rejected a plea agreement as too lenient and then hinted that the Defendant would get a life sentence if he didn’t accept a different plea deal.
U.S. v. Arqueta-Ramos, 94 Crim. L. Rep. 13 (9^th Cir. 9/20/13):

Holding: “Group guilty plea” involving multiple defendants in an effort to deal with increases in court caseloads violated Rule 11.
U.S. v. Alcala-Sanchez, 2012 WL 45462 (9^th Cir. 2012):

Holding: Government’s admission that it mistakenly recommended a sentence which differed from that found in the plea agreement and its subsequent correction did not cure the breach of the plea agreement and required that the sentence be vacated and remanded for resentencing before a different judge.
U.S. v. Hunt, 89 Crim. L. Rep. 830 (9^th Cir. 9/1/11):

Holding: Where the guilty plea did not admit what type of drug was involved, Defendant could only be sentenced to the maximum penalty for an unspecified drug.
U.S. v. Escamilla-Rojas, 89 Crim. L. Rep. 210 (9^th Cir. 5/12/11):

Holding: “Cattle-call” guilty pleas where judge addresses a bunch of defendants in court about consequences of pleading guilty before accepting their individual pleas does not satisfy Rule 11’s requirement that judge personally address defendants.
U.S. v. Bonilla, 88 Crim. L. Rep. 774, 2011 WL 833293 (9^th Cir. 3/11/11):

Holding: Even though Defendant knew it was possible he might be deported if he pleaded guilty, counsel was ineffective under Padilla in not advising of the virtual certainty of deportation.
U.S. v. Tobin, 2012 WL 1216220 (11^th Cir. 2012):

Holding: The court’s involvement in plea discussions warranted resentencing of the defendant before a different district judge.
U.S. v. Davila, 90 Crim. L. Rep. 416 (11^th Cir. 12/21/11):

Holding: Magistrate who recommended that Defendant plead guilty to avoid long prison term violated federal Rule against judges’ participation in plea negotiations.
U.S. v. Riley, 93 Crim. L. Rep. 99 (C.A.A.F. 4/16/13):

Holding: Military judges must inform persons pleading guilty to sex offenses that they will be required to register as sex offenders; failure to do so justifies withdrawal of guilty plea.
U.S. v. Hayes, 90 Crim. L. Rep. 670 (C.A.A.F. 2/13/12):

Holding: A servicemember who has pleaded guilty does not have to establish a prima facie case of duress before the military judge is required to reopen the issue of the providence of the guilty plea.
U.S. v. Hartman, 89 Crim. L. Rep. 76 (C.A.A.F. 3/15/11):

Holding: Judge in military court-martial must advise a defendant charged with consensual sodomy of how Lawrence v. Texas, 539 U.S. 558 (2003) applies in the military context alleged in the charge.


U.S. v. Pressley, 2012 WL 1150826 (D.N.J. 2012):

Holding: Where Defendant entered into a plea agreement that the Gov’t would not initiate any further criminal charges against him for accepting bribes, the later indictment of Defendant on charge of illegally receiving Social Security Supplement Income (SSI) benefits by concealing his bribe income violated plea agreement.
Stone v. State, 89 Crim. L. Rep. 167, 2011 WL 1519382 (Alaska 4/22/11):

Holding: Where state law permitted a sentence review of guilty plea, Defendant had right to counsel for the appeal since Halbert v. Michigan, 545 U.S. 605 (2005) held that 14^th Amendment requires states to provide counsel to guilty-pleading indigent defendants for first-tier appellate review.
People v. Clancey, 2013 WL 1667822 (Cal. 2013):

Holding: Record was ambiguous whether plea court engaged in prohibited plea negotiations, where there was no clear statement in the record that judges’ statement as to possible sentence represented court’s best judgment of what Defendant’s sentence would be regardless of whether Defendant pleaded guilty or went to trial, and record was ambiguous as to whether court extended leniency because of a plea.
Alcorn v. State, 2013 WL 2631143 (Fla. 2013):

Holding: Motion court misapplied prejudice standard when it held that Movant could not have been prejudiced by misinformation about maximum sentence he could receive when he only received the lower (but erroneous) “maximum” sentence; motion court was required to consider whether Defendant would have accepted the plea offer if he had been correctly informed of the maximum sentence.
Nazario v. State, 2013 WL 3475330 (Ga. 2013):

Holding: Even though Defendant pleaded guilty to 17 counts, this did not waive claim that some of the counts had legally “merged.”
Booth v. State, 89 Crim. L. Rep. 646, 2011 WL 2556035 (Idaho 6/29/11):

Holding: Where counsel erroneously told Defendant to take a plea because he would be subjected to a fixed life sentence if he went to trial (which was legally incorrect), the erroneous advice was ineffective.
People v. Snyder, 90 Crim. L. Rep. 391 (Ill. 12/1/11):

Holding: The remedy where a judge fails to inform a defendant entering a negotiated guilty plea that she would be required to pay restitution is to allow her to withdraw her plea, not to vacate the restitution order.
People v. Snyder, 2011 WL 5999261 (Ill. 2011):

Holding: Withdrawal of guilty pleas, and not vacatur of restitution, was appropriate remedy for failure to admonish defendant about possibility of restitution order before accepting guilty pleas.

In re Flatt-Moore, 90 Crim. L. Rep. 624 (Ind. 1/12/12):

Holding: A prosecutor in a check fraud case engaged in conduct prejudicial to the administration of justice by giving the crime victim total veto power during plea bargaining with the defendant.
State v. Fannon, 2011 WL 1900285 (Iowa 2011):

Holding: Prosecutor’s breach of plea agreement not to recommend consecutive sentences was not cured by the prosecutor’s withdrawal of his remarks, for purposes of determining if Defendant’s counsel was ineffective in failing to object to the breach or request appropriate relief.
State v. Fannon, 89 Crim. L. Rep. 315 (Iowa 5/20/11):

Holding: (1) Where prosecutor breaches a no-recommendation plea offer by arguing for a high sentence at the sentencing hearing, this is not cured by then withdrawing the recommendation; and (2) under these circumstances, counsel was ineffective in failing to request resentencing before a different judge.
State v. Peterson, 2013 WL 475775 (Kan. 2013):

Holding: State breached plea agreement to stand silent at sentencing by arguing that Defendant’s dishonest answers in a psychological examination showed he was likely to reoffend.
State v. Daughtry, 89 Crim. L. Rep. 180 (Md. 4/25/11):

Holding: Where a plea record reflects only that Defendant was represented by counsel and that Defendant was pleading guilty, court will not presume that counsel explained to Defendant the nature of the charges against him; plea is not voluntary on such a sparse record.
Com. v. Dean-Ganek, 2012 WL 75663 (Mass. 2012):

Holding: Commonwealth lacked authority to require trial judge to vacate defendant’s guilty plea to larceny from a person, where the trial court imposed a sentence less severe than that set forth in the plea agreement and the Commonwealth sought an increased sentence.
Com. v. Clarke, 2011 WL 2408984 (Mass. 2011) & State v. Golding, 2011 WL 1835274 (Tex. App. 2011):

Holding: Padilla is retroactive.
Com. v. Clarke, 89 Crim. L. Rep. 589 (Mass. 6/17/11):

Holding: Padilla v. Kentucky’s holding that defense counsel has 6^th Amendment duty to advise noncitizens of immigration consequences is retroactive to cases on collateral review.
People v. Brown, 2012 WL 3537818 (Mich. 2012):

Holding: Before pleading guilty a Defendant must be advised of the maximum enhanced sentence he could receive, and failure to so advice requires that Defendant’s guilty plea be vacated, not just that he be re-sentenced without the enhancement.
People v. C: Stephen Harris

Damien de Loyola, 2012 WL 1918920 (Mich. 2012):

Holding: Court was required at time of guilty plea to inform Defendant that he would be subject to lifetime electronic monitoring.
State v. Brown, 2011 WL 13753 (Minn. 2011):

Holding: Defendant’s statements made at pretrial hearing about a possible guilty plea were statements made in connection with a plea offer and were not admissible at trial.
State v. Landera, 2013 WL 645822 (Neb. 2013):

Holding: State breached plea agreement that required it to recommend probation where prosecutor made remarks at sentencing suggesting that the State did not want probation after having reviewed the presentence report.
State v. Mena-Rivera, 88 Crim. L. Rep. 367 (Neb. 12/17/10):

Holding: Where statute required court to advise about immigration consequences “prior to acceptance of a guilty plea,” statute was not satisfied where court did this only at arraignment; warning must be given immediately before plea.
State v. Tricas, 290 P.3d 255 (Nev. 2012):

Holding: Grant of transactional immunity to Defendant who had pleaded guilty but not yet been sentenced entitled Defendant to be able to withdraw her plea.
People v. Max, 2012 WL 6115635 (N.Y. 2012):

Holding: Where during guilty plea colloquy Defendant said he had been in a psychotic state and hearing voices at time of crime, plea court had a duty to inquire further as to Defendant’s possible assertion of an NGRI defense before accepting the plea.
State v. Heisser, 2011 WL 814959 (Or. 2011):

Holding: Plea agreement that permitted State to seek upward departures and Defendant to seek presumptive sentences did not prevent Defendant from challenging the timeliness of the State in seeking the upward departures.
State v. Fox, 93 Crim. L. Rep. 320 (S.D. 5/29/13):

Holding: Even though Defendant entered into a deferred prosecution agreement whereby Defendant agreed to plead guilty if he violated conditions of deferred prosecution within 24 months, where after he violated the conditions, his agreement to plead guilty was not enforceable because it led to an involuntary waiver of both his right to voluntarily enter a plea of his choice and his right to trial.
Calvert v. State, 89 Crim. L. Rep. 216 (Tenn. 4/28/11):

Holding: Defense counsel’s failure to advise client that offense to which client was pleading guilty carried a mandatory lifetime term of community supervision was ineffective assistance.
State v. Alexander, 2012 WL 1564336 (Utah 2012):

Holding: A defendant’s guilty plea to burglary premised on his remaining in the victim’s residence with the intent to commit a sexual battery was not knowing, voluntary, and intelligent because the trial court failed to explain and ensure the defendant understood the “intent to commit sexual battery” element.
State v. Lovell, 2011 WL 2683237 (Utah 2011):

Holding: Trial court’s failure to strictly comply with rule setting out constitutional rights a defendant must understand before entering guilty plea constituted good cause to withdraw the plea.
Starrett v. State, 286 P.3d 1033 (Wyo. 2012):

Holding: Guilty plea in sex abuse case was set aside where plea court failed to advise Defendant that his guilty plea to a felony may result in his loss of right to possess a firearm or ammunition.
People v. Labora, 2010 WL 4968641 (Cal. App. 2010):
Holding: Trial court engaged in improper judicial plea bargaining.
People v. Wigod, 88 Crim. L. Rep. 402 (Ill. App. 12/3/10):

Holding: Guilty plea colloquy must inform Defendant about mandatory restitution.
Tigue v. Com., 2011 WL 3962504 (Ky. Ct. App. 2011):

Holding: Defendant was denied counsel at critical stage where his counsel failed or refused to file motion to withdraw guilty plea.
State v. Barlow, 89 Crim. L. Rep. 211 (N.J. Super. Ct. App. 5/6/11):

Holding: Defense counsel has professional obligation to move to withdraw a guilty plea for a client if client requests this, and failure to do so is ineffective assistance.
State v. Favela, 2013 WL 4499459 (N.M. App. 2013):

Holding: Even though the trial court warned Defendant about immigration consequences, this never cures the prejudice from counsel’s ineffectiveness in failure to warn under Padilla, because judges cannot know a defendant’s priorities or use information strategically in negotiating pleas; also, advice by a judge is not the same as advice by counsel who knows more specific information about the case.
State v. Caldwell, 2013 WL 6047171 (Ohio App. 2013):

Holding: Trial court abused discretion in rejecting plea bargain where its statement that the plea agreement did not comport with interest of justice would preclude virtually any plea bargain.
People v. Brignolle, 971 N.Y.S.2d 866 (Sup. 2013):

Holding: Exceptional circumstances existed for Defendant charged with drug possession to enter diversion program without a guilty plea, because Defendant was a noncitizen and a conviction would make him deportable.
People v. Kollie, 2013 WL 91980 (N.Y. County Ct. 2013):

Holding: Where alien-Defendant would be deported if he pleaded guilty to drug possession, this was an exceptional circumstance warranting placement in a pretrial diversion program without requiring a plea of guilty.
Ex parte Zantos-Cuebas, 2014 WL 715057 (Tex. App. 2014):

Holding: Where habeas petitioner who spoke only Spanish alleged he did not understand the written advisements as to immigration consequences of his plea, this stated a claim that was not frivolous on its face.
Ex Parte Moussazadeh, 2012 WL 468518 (Tex. Crim. App. 2012):

Holding: Counsel’s misinformation to defendant on parole eligibility, on which he relied in pleading guilty, was ineffective assistance of counsel.
Ex parte Tankleskaya, 2011 WL 2132722 (Tex. App. 2011):

Holding: Plea counsel was ineffective in failing to inform permanent legal resident-Defendant that her guilty plea to misdemeanor drug possession would render her presumptively inadmissible upon re-entry to the U.S. if she left the country; this rendered her plea involuntary, especially when counsel knew that Defendant was planning an out-of-country trip.
Immigration
* Moncrieffe v. Holder, 93 Crim. L. Rep. 121, ___ U.S. ___ (U.S. 4/23/13):

Holding: If a legal alien’s conviction for a marijuana distribution offense fails to establish that the offense involved either remuneration or more than a small amount of marijuana, the offense is not an “aggravated felony” under the Immigration and Nationality Act that is ineligible for discretionary relief from deportation by the Attorney General. Court adopts “categorical approach” to determine if the state offense of conviction is an aggravated felony under federal law by comparing the state statute to the the federal statute. Here, the federal Controlled Substances Act makes distribution of marijuana either a felony or misdemeanor. Since Georgia’s statute (under which alien was convicted) does not reveal whether remuneration or more than a small amount was involved, the conviction did not necessarily involve facts that correspond to a felony offense under CSA.
* Chaidez v. U.S., 92 Crim. L. Rep. 609, ___ U.S. ___ (U.S. 2/20/13):
Holding: Padilla’s ruling that defense attorneys must warn clients about immigration consequences is a new rule that is not retroactive on collateral review.
Kovacs v. U.S., 94 Crim. L. Rep. 704 (2d Cir. 3/3/14):
Holding: Padilla error will entitle Defendant to writ of error coram nobis where Defendant can show that he either would have litigated a meritorious defense, or would have negotiated a better deal with no adverse immigration consequences, or would have gone to trial but for counsel’s mistaken advice regarding immigration.
U.S. v. Orocio, 2011 WL 2557232 (3d Cir. 2011), Com. v. Clarke, 2011 WL 2408984 (Mass. 2011), Denisyuk v. State, 90 Crim. L. Rep. 163 (Md. 10/25/11) & State v. Golding, 2011 WL 1835274 (Tex. App. 2011):

Holding: Padilla is retroactive.
U.S. v. Orocio, 89 Crim. L. Rep. 620 (3d Cir. 6/29/11):

Holding: Padilla is retroactive to cases on collateral review.
U.S. v. Akinsade, 2012 WL 3024723 (4^th Cir. 2012):

Holding: Defendant was entitled to writ of coram nobis alleging ineffective assistance of counsel where he was no longer in custody on his criminal case; had no reason to challenge his prior conviction until he was detained by immigration authorities; and the risk of deportation was an adverse consequence sufficient to create an Article III case or controversy.
U.S. v. Urias-Marrafo, 94 Crim. L. Rep. 705, 2014 WL 805455 (5^th Cir. 2/28/14):
Holding: (1) Court must consider Padilla claim even if presented in motion to withdraw guilty plea, rather than in post-conviction collateral attack action, because a court should address Padilla claims sooner rather than later; and (2) even though guilty plea judge gave some warnings about immigration consequences, this did not cure counsel’s ineffectiveness in failing to warn of such consequences, because it is counsel’s duty, not the court’s, to give such warnings.
U.S. v. Becerril-Pena, 93 Crim. L. Rep. 212 (5^th Cir. 5/2/13):

Holding: USSG 5D1.1 which states that a sentencing court should not ordinarily impose a term of supervised release on a Defendant-alien who is likely to be deported does not limit supervised release to “extraordinary” cases.
U.S. v. Garcia-Rodriguez, 89 Crim. L. Rep. 213, 2011 WL 1631837 (5^th Cir. 5/2/11):
Holding: Federal prisoner is “released from imprisonment” for purposes of supervised-release statute, 18 USC 3583, on the date he is transferred from Bureau of Prisons to Immigration and Customs Enforcement, regardless of whether he leaves the confinement of the facility.
U.S. v. Zamudio, 2013 WL 2402861 (7^th Cir. 2013):

Holding: Without imposing any term of supervised release, sentencing court lacked authority to impose post-imprisonment requirement on Defendant to be turned over to immigration authorities for removal and to remain outside the U.S.
Valle del Sol Inc. v. Whitting, 94 Crim. L. Rep. 86 (9^th Cir. 10/8/13):

Holding: Ariz. statute that makes it unlawful for a “person who is in violation of a criminal offense” to harbor or transport an alien is void for vagueness because this phrase is unintelligible, and the statute is also preempted by federal law.
U.S. v. Carmen, 92 Crim. L. Rep. 15 (9^th Cir. 9/14/12):

Holding: If Gov’t deports an alien-witness who has exculpatory information before defense counsel has an opportunity to interview witness, this denies Defendant the right to present a complete defense.
U.S. v. Reyes-Bonilla, 2012 WL 360771 (9^th Cir. 2012):

Holding: Alien who could not read English did not waive his right to defense counsel and was denied his due process right during expedited removal because he was advised of his rights in a language that he could not understand.
U.S. v. Barajas-Alvarado, 89 Crim. L. Rep. 791 (9^th Cir. 8/24/11):
Holding: Alien charged with illegal reentry can challenge the fairness of the original expedited removal process.
U.S. v. Sandoval-Gonzalez, 89 Crim. L. Rep. 159 (9^th Cir. 4/25/11):

Holding: Defendant who claims derivative U.S. citizenship in contesting a charge of illegal reentry does not have to make the preliminary evidentiary showing required to assert an affirmative defense.
U.S. v. Bonilla, 88 Crim. L. Rep. 774, 2011 WL 833293 (9^th Cir. 3/11/11):

Holding: Even though Defendant knew it was possible he might be deported if he pleaded guilty, counsel was ineffective under Padilla in not advising of the virtual certainty of deportation.
U.S. v. Reyes, 2012 WL 5389697 (N.D. Cal. 2012):

Holding: Alien-Defendant’s prior conviction for possessing a short-barrel shotgun was not a crime of violence, and thus not an aggravated felony that would subject him to expedited removal from the U.S.
U.S. v. Trujillo-Alvarez, 2012 WL 5295854 (D. Or. 2012):

Holding: After a judge determined that alien-Defendant was eligible for release on bail and was not a flight-risk, the Executive Branch had the option of either releasing him from ICE detention, or abandoning the prosecution and proceeding immediately to deportation.
U.S. v. Bran, 2013 WL 2565518 (E.D. Va. 2013):

Holding: (1) Where Gov’t deported a witness who would likely have provided favorable testimony for Defendant and Gov’t was aware at time of deportation that witness had information about case, some sanction for the Gov’t’s conduct was appropriate; but (2) appropriate sanction was a “missing witness” jury instruction, not dismissal of case.
State v. Sarrabea, 94 Crim. L. Rep. 117, 2013 WL 5788888 (La. 10/15/13):