United States v. Roger Nepal

Case: 17-10228 Document: 00514532065 Page: 1 Date Filed: 06/27/2018 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals No. 17-10228 Fifth Circuit FILED June 27, 2018 UNITED STATES OF AMERICA, Lyle W. Cayce Clerk Plaintiff-Appellee, v. ROGER NEPAL, Defendant-Appellant. Appeal from the United States District Court for the Northern District of Texas Before WIENER, GRAVES, and HO, Circuit Judges. JAMES E. GRAVES, JR., Circuit Judge: Following a plea agreement, Defendant Roger Nepal, who was born in Nepal but later became a naturalized U.S. citizen, pleaded guilty to and was convicted of a single count of violating 18 U.S.C. § 1425(a), which prohibits knowingly procuring citizenship contrary to law. The factual resume accompa- nying the plea agreement details how in both his Application for Naturalization and his subsequent citizenship interview, Nepal falsely stated that he had no children when, in fact, he did. The factual resume also states that had immigra- tion officials known that Nepal had children, it would have led to the discovery that Nepal did not properly and completely provide financial support to his son. The district court accepted the plea agreement, convicted Nepal of violating Sec- tion 1425(a) and, as part of his sentence, revoked his citizenship. Nepal appeals. Case: 17-10228 Document: 00514532065 Page: 2 Date Filed: 06/27/2018 No. 17-10228 While the appeal was pending, the Supreme Court announced its decision in Maslenjak v. United States, 582 U.S. —, 137 S. Ct. 1918 (2017), in which it (1) clarified the Government’s burden of proof in a Section 1425(a) prosecution and (2) held that qualification for citizenship, notwithstanding any materially false statement, is a complete defense to prosecution. Nepal contends that Mas- lenjak effected a change in the law such that the district court plainly erred in accepting his guilty plea because, following Maslenjak, that plea is no longer sup- ported by a sufficient factual basis. He also contends that he is entitled to invoke the newly announced defense. Both contentions lack merit. We affirm. I In 2015, a grand jury issued a three-count indictment against Nepal. 1 He was charged with conspiracy to commit fraud in connection with immigration documents, in violation of 18 U.S.C. §§ 371 & 1546(a) (Count One); fraud and misuse of visas, permits, and other documents, in violation of 18 U.S.C. § 1546(a) (Count Two); and unlawful procurement of naturalization, in violation of 18 U.S.C. § 1425(a) (Count Three). The statutory provision at issue in Count Three, Section 1425(a), prohibits “knowingly procur[ing] or attempt[ing] to procure, contrary to law, the naturalization of any person.” 18 U.S.C. § 1425(a). For pre- sent purposes, the indictment advanced three relevant allegations. First, Nepal filed a Form N-400 Application for Naturalization with the then-extant Immi- gration and Naturalization Service in December 2001, falsely claiming, inter alia, that he did not have children, when in fact he had four children—contrary to 18 U.S.C. § 1015(a), which prohibits false statements “relating to . . . natural- ization.” Second, Nepal lied in his ...

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