US v. Couto, Second Circuit

Ivania Couto, a citizen of Brazil, was convicted in federal court of bribing a public official. She appealed, arguing that she did not receive effective assistance from her attorney, that the court had erred in not allowing her to withdraw a guilty please, and that the court had erred in failing to warn her of the immigration consequences of the guilty plea.

Couto had come to the US in 1991 on a tourist visa. Shortly afterward, she gave birth to a son, and remained in the US after her visa expired. She married a US citizen and applied for adjustment of status, but before the application was granted, the marriage was annulled. In 2000, Couto, along with many others, was indicted on charges of conspiracy and bribery. Couto was accused of attempted to buy a green card from an INS agent for $9,500. She retained an attorney and entered a plea of not guilty. She claimed that she had been approached by a man claiming to be an attorney who offered to help her with the adjustment application. They met with an INS official who stamped her passport with an indication that she was a permanent resident. A few months later, she was arrested, along with the man who claimed to be an attorney.

Relying on the advise of the criminal defense attorney, she did not object to the INS canceling her adjustment application. The attorney arranged for her to enter a guilty plea, telling her that she would likely be convicted and face jail time if she went to trial, and could avoid jail time be pleading guilty, as well as possibly avoid deportation. During the hearing, the possible immigration consequences of the conviction were never mentioned. Prior to the sentencing hearing, Couto retained a new attorney, who filed a motion requesting that the guilty plea be withdrawn. The motion was denied, with the judge reasoning that there is no requirement that a criminal attorney advise someone of the possible immigration consequences of a criminal conviction. Couto then appealed.

The Second Circuit found that the court erred in not allowing Couto to withdraw the guilty plea. First, at no point did Couto ever really acknowledge guilt, instead only confirming that events occurred as the government stated. Second, the court found that the trial court had failed to adequately consider all the evidence presented, and had instead simply made assumptions about the case against Couto. The court found that the denial of the motion to withdraw should not only be vacated, but that the motion itself should have been granted. This was based on the fact that a guilty plea must be entered knowingly and voluntarily. The court found that because Couto did not receive effective assistance of counsel, because of the attorney’s incorrect statements about the possible immigration consequences of a guilty plea, her plea was neither knowing nor voluntary.

The opinion is available online at http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=2nd&navby=case&no=011636.

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US v. Caicedo-Cuero, Fifth Circuit

Jesus Martin Caicedo-Cuero, a citizen of Colombia, was convicted of unlawful reentry to the US following deportation. He had been deported because of a conviction in Texas state court in 1995 for marijuana possession. At the time, the offense was punishable by up to two years in prison, but state law required that for first offenders the jail sentence be suspended in favor of probation. During his trial for unlawful reentry, the government argued that the 1995 conviction was an aggravated felony and that Caicedo’s sentence should therefore be enhanced. The judge disagreed and enhanced Caicedo’s sentence. Caicedo then appealed.

On appeal, Caicedo argued that his 1995 conviction was not an aggravated felony for two reasons. First, because he could not have received a prison sentence of at least a year, and second because a conviction of simple possession was not a drug trafficking crime. The Fifth Circuit rejected this argument, finding that the imposition of probation rather than jail time for first offenders was not a reflection of the perceived seriousness of the offense, but of the need to relieve prison overcrowding. The court also rejected Caicedo’s argument that his marijuana possession offense was not a drug trafficking crime.

This is an important decision, as it is the first in which a circuit court has ruled that simple marijuana possession is a drug trafficking offense. While the court was dealing with the US Sentencing Guidelines, not the Immigration and Nationality Act