16-4318-cr United States v. Gonzales 16-4318-cr United States v. Gonzales United States Court of Appeals FOR THE SECOND CIRCUIT ______________ August Term, 2017 (Argued: January 31, 2018 Decided: March 13, 2018) Docket No. 16‐4318‐cr ______________ UNITED STATES OF AMERICA, Appellee, –v.– WINIFREDO GONZALES, AKA FRED, AKA CHIN, Defendant‐Appellant. ______________ B e f o r e : SACK, PARKER, and CARNEY, Circuit Judges. 1 ______________ 2 3 Defendant‐Appellant Winifredo Gonzales appeals from a judgment of conviction 4 in the United States District Court for the Western District of New York (Geraci, C.J.), 5 arguing that his guilty plea was not knowingly entered. During the colloquy in which 6 the District Court accepted his plea, the court did not inform Gonzales, a lawful 7 permanent resident of the United States, of the serious potential immigration 8 consequences of his plea. These consequences included likely removal from the United 9 States. The plea agreement, too, did not mention those consequences. In its omission at 10 the colloquy, the District Court violated Fed. R. Crim. P. 11(b)(1)(O). Months later, at 11 sentencing, having learned through the Presentence Report that he would likely be 1 removed after serving his sentence, Gonzales himself addressed the court and 2 complained that he had not known about those consequences when he entered his plea. 3 The District Court acknowledged Gonzales’s concern but took no action to remedy the 4 earlier oversight or to inquire further. Because the court’s failure to inform Gonzales of 5 the immigration consequences of his plea before accepting his plea violated Gonzales’s 6 substantial rights, we VACATE the judgment of the District Court and REMAND the 7 cause for further proceedings consistent with this opinion. 8 VACATED AND REMANDED. ______________ 9 10 BRENDAN WHITE, White & White, New York, NY, for 11 Defendant‐Appellant. 12 13 ROBERT MARANGOLA (Monica Richards, on the brief), 14 Assistant United States Attorneys, for James P. 15 Kennedy, Jr., Acting United States Attorney for the 16 Western District of New York, Buffalo, NY, for 17 Appellee. ______________ PER CURIAM: 18 Defendant‐Appellant Winifredo Gonzales appeals from a judgment of conviction 19 in the United States District Court for the Western District of New York (Geraci, C.J.), 20 arguing that his guilty plea was not knowingly entered. During the colloquy in which 21 the District Court accepted his plea, the court did not inform Gonzales, a lawful 22 permanent resident of the United States, of the serious potential immigration 23 consequences of his plea. These consequences included likely removal from the United 24 States. The plea agreement, too, did not mention those consequences. In its omission at 25 the colloquy, the District Court violated Federal Rule of Criminal Procedure 11(b)(1)(O), 2 1 which provides in relevant part that “before the court accepts a plea of guilty . . . the 2 court must address the defendant personally . . . [and] inform the defendant of, and 3 determine that the defendant understands . . . that, if convicted, [and if] not a ...
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