The opinion of the court was delivered by: Judge Walter Herbert Rice
DECISION AND ENTRY OVERRULING DEFENDANT'S MOTION TO WITHDRAW GUILTY PLEA (DOC. #366)
Defendant Guadalupe Woolum is charged in the Superseding Indictment (Doc. #23) with one count of conspiring to distribute and to possess with intent to distribute in excess of 100 kilograms of marijuana. On May 20, 2003, Defendant pled guilty. This case is now before the Court on Defendant's Motion to Withdraw Guilty Plea (Doc. #366). On February 10, 2006, the Court conducted an oral and evidentiary hearing on this matter, and the Defendant has filed a supplemental memorandum in support of her motion. See Doc. #404.
Defendant argues that the Court should permit her to withdraw the guilty plea, because it would not be fair to permit that plea to stand, given that she was not aware, at the time she entered it, that she would be deported as a result. During the hearing on this matter, Defendant testified that she has lived in this country 40 or more years, that her children and grandchildren are citizens of the United States and live here, as does the rest of her family. In addition, she indicated that she has not maintained a relationship or remained in contact with anyone in Mexico, although her mother has. She also testified that she was not aware at the time that she entered her guilty plea that she would be deported as a result.
Without addressing the issue in the context of a request to withdraw a guilty plea, courts including the Sixth Circuit have held, in § 2255 proceedings or upon direct appeal, that the failure to warn a defendant of deportation neither renders her plea involuntary nor constitutes ineffective assistance of counsel, because deportation is a collateral consequence of a guilty plea. See El-Nobani v. United States, 287 F.3d 417, 421 (6th Cir. 2002) (fact that defendant was not aware that guilty plea would result in deportation did not render that plea involuntary); United States v. Amador-Leal, 276 F.3d 511 (9th Cir. 2002) (same); United States v. Fry, 322 F.3d 1198 (9th Cir. 2003) (counsel's performance was not defective as a result of his failure to advise his client that deportation would result from guilty plea). In United States v. Gonzales, 202 F.3d 20 (1st Cir. 2000), the First Circuit held that the failure of defense counsel to advise the defendant that his guilty plea would result in his deportation to Cuba did not constitute ineffective assistance of counsel, justifying the withdrawal of his guilty plea. The Gonzales court also concluded that the failure of the District Court to advise the defendant of the collateral consequence of deportation as a result of the conviction that would flow from his guilty plea did not obligate that court to permit him to withdraw his guilty plea. Id. at 28. See also United States v. Campbell, 778 F.2d 764 (11th Cir. 1985) (holding that the failure to advise defendant of potentiality of deportation as a result of the guilty plea did not constitute a violation of Rule 11 by the trial court or deficient performance by defense counsel and that, therefore, lack of such advice prior to the entry of the guilty plea was not the basis for withdrawing that plea). In accordance with the foregoing decisions, this Court concludes that the failure to inform Defendant that she would be deported as a result of her guilty plea does not justify its withdrawal.*fn1
Based upon the foregoing, the Court overrules Defendant's Motion to Withdraw Guilty Plea (Doc. #366).
WALTER HERBERT RICE, JUDGE UNITED STATES ...