Zhang v. United States, No. 05-6662 (2d Cir. 2007)

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05-6662-pr Zhang v. United States 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 2006 (Argued: January 11, 2007 Decided: October 23, 2007) Docket No. 05-6662-pr - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - SEAN ZHANG, Petitioner-Appellee, v. UNITED STATES OF AMERICA, Respondent-Appellant. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - B e f o r e: WINTER, CABRANES, Circuit Judges, and KORMAN, District Judge.* Appeal from an order of the United States District Court for 28 the Eastern District of New York (Arthur D. Spatt, Judge) 29 granting a petition for habeas corpus relief under 28 U.S.C. § 30 2255. 31 United States, pled guilty to one count of mail fraud under 18 32 U.S.C. § 1341. 33 magistrate judge and prosecutor about the immigration 34 consequences of the conviction affirmatively misled the Petitioner-appellee, a legal permanent resident of the The district court found that statements of the * The Honorable Edward R. Korman, of the United States District Court for the Eastern District of New York, sitting by designation. 1 1 petitioner-appellee, thus rendering his guilty plea involuntary. 2 We find that the statements of the magistrate judge and 3 prosecutor -- while not full explanations -- were not 4 sufficiently misleading to render the guilty plea involuntary. 5 Accordingly, we vacate and remand for consideration of 6 petitioner-appellee s other constitutional arguments. 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 GARY SCHOER, Syosset, New York, for Petitioner-Appellee. CARRIE CAPWELL, Assistant United States Attorney (Roslynn R. Mauskopf, United States Attorney for the Eastern District of New York, on the brief, and Peter A. Norling, Assistant United States Attorney, of counsel), United States Attorney s Office for the Eastern District of New York, Brooklyn, New York, for RespondentAppellant. WINTER, Circuit Judge: The government appeals Judge Spatt s order granting Sean 24 Zhang s 28 U.S.C. § 2255 petition for habeas corpus and vacating 25 his plea of guilty to mail fraud and resultant sentence of 60 26 months imprisonment. 27 was involuntary because the magistrate judge and the prosecutor 28 had affirmatively misled Zhang during the plea colloquy with 29 respect to the likelihood of his being deported as a result of 30 his conviction. 31 44 (E.D.N.Y. 2005) ( Zhang I ). 32 principally argues that the representations of the magistrate Judge Spatt found that Zhang s guilty plea Zhang v. United States, 401 F.Supp.2d 233, 243On appeal, the government 2 1 judge and prosecutor -- that Zhang faced possible, rather than 2 certain, deportation -- were not affirmatively misleading or 3 prejudicial, and that the court had no greater obligation to 4 spell out the possible collateral effects of Zhang s guilty plea. 5 We conclude that the statements made during the colloquy 6 were not affirmatively misleading, and that they did not render 7 Zhang s guilty plea involuntary. 8 below. 9 of counsel, which we remand to the district court for further 10 Zhang has also raised a claim of ineffective assistance proceedings. 11 12 We therefore vacate the order BACKGROUND Sean Zhang came to the United States from China in 1985, at 13 the age of seven. 14 was granted asylum on the basis of his father s public criticism 15 of Communism and the Chinese government. 16 Cornell University and graduated with a Bachelor of Science 17 degree in Food Science. 18 of his life in the United States, does not speak Chinese 19 proficiently, is married to an American citizen, and has long 20 been a legal permanent resident, he has never become an American 21 citizen. 22 Zhang I, 401 F.Supp.2d at 235. Id. Id. Zhang s family Zhang attended Although Zhang has spent the bulk Id. In 2001, while working as a chemist, Zhang began mixing and 23 selling capsules of the chemical 2,4 Dinitrophenol ( DNP ). 24 In addition to its many industrial and research uses, DNP, when 3 Id. 1 ingested by humans, acts as a metabolic stimulant and can reduce 2 body fat. 3 for human use by the Food and Drug Administration. 4 Nonetheless, DNP is sometimes used by bodybuilders seeking to 5 quickly reduce their body fat. 6 Guru, Zhang used a bodybuilding website to promote and sell DNP. 7 Id. 8 ingesting DNP purchased from Zhang. 9 Shull, lapsed into a 10-day coma caused by DNP prepared and sold 10 11 Id. Because of the effect of DNP, the drug is banned Id. Id. Using the screen name DNP One of Zhang s customers, Eric Perrin, died as a result of by Zhang. Id. Another customer, James Id. Zhang was indicted on ten counts of introducing a misbranded 12 drug into interstate commerce, in violation of 21 U.S.C. § 13 331(a), and ten counts of mail fraud, in violation of 18 U.S.C. § 14 1341. 15 plead guilty to a single count of mail fraud with a maximum 16 penalty of 60 months and waive his right to appeal if sentenced 17 to 60 months or less. 18 government would seek an upward departure based upon Perrin s 19 death and Shull s injuries, and included the statement, Other 20 penalties: Removal. 21 government s loss estimate of between $70,000 and $120,000. 22 Zhang entered into a plea agreement in which he agreed to The plea agreement stated that the The plea agreement also contained the According to Zhang, in discussing a guilty plea, his 23 attorney told him that any resulting deportation proceeding would 24 be discretionary, and that deportation was unlikely given his 4 1 personal history and family circumstances. 2 Zhang entered his guilty plea before a magistrate judge. 3 the plea allocution, the prosecutor stated that Zhang agrees he 4 [is] subject to possible post sentence deportation. 5 14. 6 as a consequence of your plea and the plea agreement but the 7 government indicated that this felony conviction because of your 8 immigration status could result in your deportation. 9 understand that? On June 25, 2002, During Plea Tr. at The magistrate judge further stated that it s not indicated Zhang answered Yes, I understand. Do you Id. at 10 15. 11 Zhang s counsel had reserved the right to move for a downward 12 departure, and to challenge any loss calculation. 13 Elsewhere in the allocution, the prosecutor noted that A year later, following a hearing pursuant to United States 14 v. Fatico, 579 F.2d 707 (2d Cir. 1978), Zhang was sentenced to 60 15 months imprisonment plus three years supervised release, and 16 ordered to pay $113,414.53 in restitution. 17 hearing, the prosecutor noted that there is another condition of 18 supervised release. 19 put on the judgment that he should not reenter without the 20 permission of the Attorney General. 21 sentencing judge agreed, and stated that if the defendant is 22 deported, he s not to reenter the United States illegally without 23 the consent of the government. 24 He may be deported. At the sentencing If he does, if you can Sentencing Tr. at 410. Id. Pursuant to his plea agreement, Zhang did not appeal his 5 The 1 conviction or sentence. 2 appeal had passed, Zhang received a Notice to Appear from the 3 Bureau of Immigration and Customs Enforcement ( ICE ). 4 claims at this time that he first became aware that he faced 5 mandatory deportation as a result of having been convicted of an 6 aggravated felony -- defined in relevant part for deportation 7 purposes as an offense that involves fraud or deceit in which 8 the loss to the victim or victims exceeds $10,000. 9 1101(a)(43)(M)(i). After the time for filing a direct Zhang 8 U.S.C. § On June 17, 2004, Zhang filed a habeas corpus 10 petition in the district court pursuant to 28 U.S.C. § 2255, 11 seeking to vacate his conviction on two grounds: 12 statements of the prosecutor and the court regarding possible 13 deportation were affirmatively misleading and violated Fed. R. 14 Crim. P. 11; and (ii) that he received ineffective assistance of 15 counsel regarding deportation. 16 The government argued that the statements during the course of 17 sentencing were accurate because Zhang could potentially avoid 18 deportation by applying for asylum or relief under the Convention 19 Against Torture ( CAT ). 20 (i) that the Zhang I, 401 F.Supp.2d at 236. On July 29, 2005, the district court held a hearing on 21 whether Zhang s guilty plea was involuntary because of the 22 characterization of the chances of deportation as less than 23 certain. 24 deferred. Consideration of the ineffective assistance claim was 6 1 On November 18, 2005, the district court issued its decision 2 vacating Zhang s conviction. 3 court first held that Zhang s claim was not procedurally barred 4 by his failure to raise it on direct appeal or by his plea 5 agreement s waiver of collateral attack. 6 then found that while Second Circuit law does not require a judge 7 to alert a defendant to the immigration consequences of a guilty 8 plea, affirmative misinformation about those consequences can 9 render a plea involuntary under Rule 11. Zhang I, 401 F.Supp.2d 233. Id. at 237. The The court Id. at 237-38. 10 Finally, the district court determined that it was, in fact, 11 materially misleading to inform Zhang that deportation was 12 merely possible, not probably or certain, and that the 13 misrepresentation was sufficient to render Zhang s plea 14 constitutionally involuntary. 15 Id. at 244. The government appealed. 16 DISCUSSION 17 In appeals under 28 U.S.C. § 2255, this Court reviews 18 factual findings for clear error and questions of law de novo. 19 Harris v. United States, 367 F.3d 74, 79 (2d Cir. 2004) (internal 20 quotation marks omitted). 21 As a threshold issue, the government argues that Zhang 22 procedurally defaulted by failing to bring his claims on direct 23 appeal. 24 appeal. A motion under § 2255 is not a substitute for an United States v. Munoz, 143 F.3d 632, 637 (2d Cir. 7 1 1998). 2 petition where the petitioner failed to properly raise the claim 3 on direct review. 4 rule does not generally apply to claims of ineffective assistance 5 of counsel. 6 (2003). 7 now, however, is not Zhang s ineffective assistance of counsel 8 claim, but rather the claim that Zhang s guilty plea was 9 involuntary. In general, a claim may not be presented in a habeas Reed v. Farley, 512 U.S. 339, 354 (1994). The Massaro v. United States, 538 U.S. 500, 505-06 The claim ruled on in the district court and before us If such a claim has not been presented on direct 10 review, the procedural default bar may be overcome only where the 11 petitioner establishes either (1) cause for the failure to 12 bring a direct appeal and actual prejudice from the alleged 13 violations; or (2) actual innocence. 14 523 U.S. 614, 622 (1998). 15 the petitioner must show circumstances external to the 16 petitioner, something that cannot be fairly attributed to him. 17 Rosario-Dominguez v. United States, 353 F.Supp.2d 500, 508 18 (S.D.N.Y. 2005) (quoting Marone v. United States, 10 F.3d 65, 67 19 (2d Cir. 1993) and Coleman v. Thompson, 501 U.S. 722, 753 20 (1991)). 21 Bousley v. United States, To satisfy the cause requirement, Zhang argues that because of the (mis)representations by the 22 court, his counsel, and the government about the deportation 23 consequences of his plea, he was unaware of those consequences 24 until he received a letter from the ICE, and that this serves as 8 1 cause justifying his failure to bring the claim on direct 2 appeal. 3 misleading statements prejudiced Zhang and excuse his failure to 4 bring his claims on direct appeal without first determining 5 whether they were, in fact, affirmatively misleading. 6 statements were affirmatively misleading and prejudicial, 7 procedural default would be waived and Zhang would prevail on the 8 merits. 9 prejudicial, procedural default would not be waived, and Zhang However, we cannot determine whether the allegedly If the If the statements were not affirmatively misleading and 10 would lose on the merits. 11 merits. 12 Either way, we must address the Prior to accepting a guilty plea, a court must advise the 13 defendant of his right to plead not guilty and of the rights 14 waived by pleading guilty. 15 also requires a court to tell the defendant of the possible 16 direct consequences of a guilty plea, such as the maximum prison 17 term, the maximum fine, and the effect of possible supervised 18 release. 19 about the collateral consequences of a guilty plea. 20 v. United States, 507 F.2d 461, 465 (2d Cir. 1974); Bye v. United 21 States, 435 F.2d 177, 179 (2d Cir. 1970) ( [A]n accused need not 22 be informed prior to the acceptance of his guilty plea about 23 every conceivable collateral effect the conviction entered on the 24 plea might have. ). Id. Fed. R. Crim. P. 11(b)(1). Rule 11 A court need not, however, inform a defendant 9 See Michel 1 The possibility of discretionary deportation after a guilty 2 plea is a collateral consequence that need not be addressed at 3 the plea hearing. 4 the Illegal Immigration Reform and Immigrant Responsibility Act 5 of 1996 ( IIRIRA ) and the Antiterrorism and Effective Death 6 Penalty Act of 1996 ( AEDPA ), however, has altered the landscape 7 of immigration law, and deportation of aggravated felons is now 8 automatic and non-discretionary. 9 see also INS v. St. Cyr, 533 U.S. 289, 325 (2001) (referring to Michel, 507 F.2d at 465-66. The passage of 8 U.S.C. § 1227(a)(2)(A)(iii); 10 deportation of aggravated felons as certain ). 11 several circuits have held that automatic deportation under 12 IIRIRA is still a collateral consequence that need not be 13 addressed prior to a court s accepting a guilty plea. 14 Nobani v. United States, 287 F.3d 417, 421 (6th Cir. 2002) ( [I]t 15 is clear that deportation is not within the control and 16 responsibility of the district court, and hence, deportation is 17 collateral to a conviction. ); United States v. Amador-Leal, 276 18 F.3d 511, 516-17 (9th Cir. 2002) ( [W]hether an alien will be 19 removed is still up to the INS. 20 through, and it is wholly independent of the court imposing 21 sentence . . . . Removal is not part of the sentence. ); and 22 United States v. Gonzalez, 202 F.3d 20, 27 (1st Cir. 2000) 23 ( However automatically [the defendant s] deportation . . . 24 might follow from his conviction, it remains beyond the control Nonetheless, See El- There is a process to go 10 1 and responsibility of the district court in which that conviction 2 was entered and it thus remains a collateral consequence 3 thereof. ). 4 Although we have acknowledged the existence of the issue, 5 United States v. Cuoto, 311 F.3d 179, 190 (2d Cir. 2002), we have 6 not decided whether automatic deportation is a collateral 7 consequence of a guilty plea that need not be mentioned or a 8 direct consequence that required discussion during the plea 9 proceeding. Once again, the issue is not before us. As the 10 district court noted, [w]hether automatic deportation is a 11 direct or collateral consequence is of no matter in this case 12 because the court did address deportation at the plea hearing. 13 Zhang I, 401 F.Supp.2d at 239. 14 We agree. Rule 11 sets forth requirements for a plea allocution and 15 is designed to ensure that a defendant s plea of guilty is a 16 voluntary and intelligent choice among the alternative courses of 17 action open to the defendant. 18 F.3d 131, 133 (2d Cir. 1999) (internal quotation marks and 19 citation omitted). 20 conviction based on a Rule 11 violation, a petitioner must 21 establish that the violation constituted a constitutional or 22 jurisdictional error, or establish that the error resulted in a 23 complete miscarriage of justice, or in a proceeding 24 inconsistent with the rudimentary demands of fair procedure. United States v. Andrades, 169 To successfully challenge a guilty plea 11 1 United States v. Timmreck, 441 U.S. 780, 783 (1979) (internal 2 quotation marks omitted). 3 demonstrate that the violation was prejudicial -- where the error 4 was not preserved, this requires the petitioner to show that the 5 violation affected substantial rights and that there is a 6 reasonable probability that, but for the error, he would not have 7 entered the plea. 8 Cir. 2005) (internal quotation marks and citation omitted). 9 In addition, the petitioner must United States v. Vaval, 404 F.3d 144, 151 (2d Given this legal background, the principal issue in the 10 present matter is whether the statements that Zhang was subject 11 to possible post sentence deportation, Plea Tr. at 14, that his 12 conviction could result in deportation, id. at 15, and that he 13 may be deported, Sentencing Tr. at 410, were, in fact, 14 accurate. 15 made, then they could not reasonably be said to be misleading and 16 could not have rendered Zhang s guilty plea involuntary. 17 If the statements were accurate at the time they were The district court assumed that Zhang s conviction was for 18 an aggravated felony subjecting him to automatic deportation, 19 noting that it was undisputed in this case that Zhang s mail 20 fraud conviction constitutes an aggravated felony under the 21 statute. 22 district court's analysis focused on whether Zhang could 23 realistically apply for relief from automatic deportation, such 24 as asylum or protection under the CAT. Zhang I, 401 F.Supp.2d at 241. 12 As a result, the Id. at 242. The district 1 court determined that Zhang, as an aggravated felon, would be 2 ineligible for discretionary relief from removal such as asylum, 3 8 U.S.C. § 1158(b)(2)(B)(I); restriction on removal, 8 U.S.C. § 4 1231(b)(3)(B); cancellation of removal, 8 U.S.C. § [1229b]; and 5 voluntary departure, 8 U.S.C. § [1229c]. 6 even if entitled to protection under CAT, an aggravated felon who 7 had been sentenced to at least 5 years imprisonment is entitled 8 only to have his removal deferred to a country where he is less 9 likely to be tortured. Id. at 241. 8 C.F.R. § 208.17(a). Likewise, Under such 10 circumstances, and assuming Zhang s conviction was indisputably 11 for an aggravated felony, Judge Spatt found that possible, 12 could, and may were misleading, given that Zhang s 13 deportation was virtually certain. 14 242. 15 Zhang I, 401 F.Supp.2d at At the time the allegedly misleading statements were made, 16 however, it was far from clear that Zhang s conviction would 17 ultimately constitute an aggravated felony. 18 of whether Zhang pled guilty to an aggravated felony is still in 19 dispute. 20 is defined, in relevant part, as an offense that involves fraud 21 or deceit in which the loss to the victim or victims exceeds 22 $10,000. 23 not constitute an aggravated felony unless the loss exceeds 24 $10,000. Indeed, the question For deportation purposes, the term aggravated felony 8 U.S.C. § 1101(a)(43)(M)(i). Thus, mail fraud does Zhang pled guilty to Count One of the superseding 13 1 indictment -- a single count of mail fraud involving the sale of 2 DNP to an individual in New York who was not James Shull or Eric 3 Perrin. 4 with certainty whether the loss amount for the single count to 5 which Zhang was pleading guilty would exceed $10,000. 6 plea agreement contained a loss estimate of $70,000 to $120,000, 7 Zhang explicitly reserved the right to challenge the loss 8 calculation at sentencing, and the parties struck the line in the 9 plea agreement stating that [t]he defendant agrees with this At the time of the plea proceeding, it was not known While the 10 guidelines calculation. 11 of ineffective assistance of counsel -- argues in his brief 12 before this court that the count to which he pled guilty did not 13 involve a loss of $10,000, and that his [c]ounsel could have 14 easily insured that [Zhang] would not face deportation by 15 specifying the exact amount of money that was involved in the 16 single transaction for which [Zhang] pleaded guilty . . . . 17 for Petitioner-Appellee at 25. 18 proceeding, neither the court nor the government could know that 19 Zhang s conviction would qualify as an aggravated felony, 20 subjecting him to automatic deportation.1 21 circumstances, the statement that Zhang faced possible 22 deportation was, in fact, completely accurate. 23 24 Indeed, Zhang -- in pressing his claim Br. Thus, at the time of the plea In such The statements thus served to put Zhang on notice that his guilty plea had potential immigration consequences, and provided 14 1 an opportunity to pursue those consequences more fully with his 2 attorney or with an immigration specialist. 3 required. 4 of the immigration consequences of a guilty plea, but they were 5 not misleading or prejudicial in any way. 6 court that has decided to address the topic to a higher standard 7 of detail in explaining possible immigration ramifications -- a 8 notoriously complex and constantly shifting area of law -- would 9 likely have the perverse effect of encouraging sentencing courts 10 simply to avoid the issue entirely, lest a reviewing court find a 11 statement to be, in retrospect, misleading. 12 allegedly failed to apprise Zhang more fully of the immigration 13 consequences of his plea, and allegedly failed to take actions 14 which would have shielded Zhang from mandatory deportation, 15 serves as the basis for Zhang s claim of ineffective assistance 16 of counsel, which we now remand to the district court for 17 consideration. That is all that is To be sure, the statements were not a full elaboration 18 To hold a sentencing That Zhang s counsel CONCLUSION 19 For the foregoing reasons, we vacate the order of the 20 district court and remand for further consideration consistent 21 with this opinion. 15 1 FOOTNOTES 2 1. Zhang suggests that the government s contention that he was not convicted of an aggravated felony contradicts the government s position below, where it assumed that Zhang s conviction constituted an aggravated felony. As noted, however, Zhang himself seeks to preserve the claim that the count to which he pled guilty did not constitute an aggravated felony at the time of the plea colloquy and that it was only the incompetence of his attorney that prevented the record from clearly showing that his crime was not an aggravated felony. 16

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