United States District Court, D. Minnesota
Michael Maria, John E. Kokkinen, and Amber M. Brennan,
Assistant United States Attorneys, Counsel for Plaintiff.
M. O'Brien, O'Brien Law Office, Counsel for
MEMORANDUM OF LAW & ORDER
Michael J. Davis Judge
matter is before the Court on Defendant Sahal A.
Warsame's Motion to Withdraw Plea. [Crim. File No.
16-339(7) Docket No. 451] [Crim. File No. 16-341(4) Docket
No. 274] The Government does not oppose Defendant's
motion to withdraw his plea. The Court heard oral argument on
March 7, 2018. Because Defendant was not informed of the
immigration consequences of his guilty plea, the motion is
Sahal A. Warsame is not a U.S. citizen. (Warsame Aff. ¶
2.) On August 8, 2017, Defendant pled guilty to one count of
Conspiracy to Commit Health Care Fraud in violation of 18
U.S.C. § 1349 in Criminal File No. 16-339(7) and to one
count of the same charge in Criminal File No. 16-341(4). At
that time, Defendant was represented by retained attorney
Terrence Duggins. (Warsame Aff. ¶ 1.) Defendant avers,
before he entered his guilty plea, he told Duggins that he
was not a U.S. citizen. (Id. ¶ 3.) Defendant
asked Duggins if his guilty plea would make him deportable,
and Duggins responded that he did not know and advised
Defendant to consult with an immigration attorney.
September 21, 2017, Duggins withdrew as counsel and Kevin
O'Brien was appointed to represent Defendant. The jury
trial in United States v. Forthun, Criminal File No.
16-339, began on September 27, 2017. On October 9, Defendant
testified during that trial as a cooperating witness. (Crim.
File No. 16-339 [Docket No. 374].)
Rule of Criminal Procedure 11(d)(2)(B) permits a defendant to
withdraw his guilty plea before sentencing if “the
defendant can show a fair and just reason for requesting the
withdrawal.” “In addition to a fair and just
reason for withdrawal, a district court may consider whether
the defendant asserts his legal innocence to the charge, the
length of time between the guilty plea and the motion to
withdraw, and whether the withdrawal would prejudice the
government.” United States v. Teeter, 561 F.3d
768, 770 (8th Cir. 2009) (citation omitted).
When the law is not succinct and straightforward . . ., a
criminal defense attorney need do no more than advise a
noncitizen client that pending criminal charges may carry a
risk of adverse immigration consequences. But when the
deportation consequence is truly clear, . . . the duty to
give correct advice is equally clear.
Padilla v. Kentucky, 559 U.S. 356, 369 (2010)
Supreme Court held that an attorney's representation of a
non-citizen defendant falls below the objective standard of
reasonableness if the attorney fails to advise the defendant
before he pleads guilty that his guilty plea would make him
deportable when the law is clear regarding the deportation
consequence of the guilty plea. Id. at 369.
“In short, the practice of simply referring clients to
an immigration attorney is not-in most cases-objectively
reasonable representation.” Al Kokabani v. United
States, No. 5:06-CR-207-FL, 2010 WL 3941836, at *3 (E.D.
N.C. July 30, 2010), report and recommendation
adopted, No. 5:06-CR-207-FL, 2010 WL 3941834 (E.D. N.C.
Oct. 7, 2010).
district court must address a claim of a Padilla
violation if it is “sufficiently presented during a
motion to withdraw a plea, both legally and factually.”
United States v. Urias-Marrufo, 744 F.3d 361, 369
(5th Cir. 2014). Counsel's lack of advice regarding
deportation establishes the first prong for ineffective
assistance of counsel - objective unreasonableness - and then
the Court must address “whether a defendant was
prejudiced by counsel's error.” United States
v. Kayode, 777 F.3d 719, 729 (5th Cir. 2014). If the
district court finds that a Pa ...