By Burt Rose
The United States Court of Appeals for the Ninth Circuit has decided the case of UNITED STATES of America v. Jose Hernandez BONILLA, Jr., Appellant, 2011 WL 833293, 11 Cal. Daily Op. Serv. 3119, No. 09-10307 ( March 11, 2011). The Honorable Louis H. Pollak, Senior United States District Judge for the Eastern District of Pennsylvania, was sitting by designation on this panel.
The Defendant had pleaded guilty in the United States District Court for the Northern District of California to possession of an unregistered firearm and to being a felon in possession of a firearm. Shortly after he had entered his plea, Bonilla was for the first time informed that he would be deported on the basis of that plea. Represented by new counsel, he moved to withdraw the plea before sentencing, asserting that he would not have pled had he known about the immigration consequences. The Court held that the district court’s denial of Bonilla’s motion to withdraw his plea was an abuse of discretion in view of Padilla v. Kentucky, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), where the Supreme Court extended the right to counsel to protect against the passive omission of correct advice about the possibility of deportation.
Here, Bonilla received no advice about immigration consequences before entering his plea, only learning afterward that pleading guilty would almost certainly result in deportation. Therefore, the district court abused its discretion in concluding that his counsel’s failure to advise him that he would almost certainly be deported did not constitute a fair and just reason for the withdrawal of the guilty plea.
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