Argued June 9, 2015.
Appeal from the United States District Court for the Northern District of Indiana, South Bend Division. No. 3:14-cv-01620-RLM -- Robert L. Miller, Jr., Judge.
RENATO DEBARTOLO, Petitioner - Appellant: Margaret Wong, Attorney, Scott E. Bratton, Attorney, WONG & ASSOCIATES, Cleveland, OH.
For UNITED STATES OF AMERICA, Respondent - Appellee: David E. Hollar, Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Hammond, IN.
Before POSNER, KANNE, and SYKES, Circuit Judges.
Posner, Circuit Judge.
Renato DeBartolo, 48 years old, immigrated to the United States with his family at the age of one, but unlike most of his family never got around to applying for U.S. citizenship. He is married to an American citizen, however, and his seven or ten children (the correct number is uncertain) are of course American citizens as well. He has no family in Italy and has
never learned Italian. Until recently deported to Italy, he lived in Indiana, where he owned a small construction company from 2008 to 2010. In 1996 he had been sentenced in an Indiana court to eight years in prison for dealing in cocaine, but the last four years had been suspended, so he had been released after four years; and no removal (i.e., deportation) proceedings had been instituted against him. In 2011 he was indicted in federal court for possessing with intent to distribute more than 100 marijuana plants and with manufacturing (not the right word--marijuana plants are grown rather than manufactured--but the statutory term) more than 100 such plants (the same plants), both being violations of 21 U.S.C. § 841(a)(1). He had grown the plants in a barn. Marijuana plants need bright light to grow to their maximum size, and DeBartolo had powered the lighting fixtures in the barn with electricity that he stole from the electric company by running a clandestine power line from the company's line to his barn.
The minimum statutory prison term for the offense to which he pleaded guilty was five years. But as a result of the help he gave the government after his arrest to apprehend other drug dealers in his area, and of his pleading guilty to the manufacturing offense (thus sparing the government the bother and uncertainty of a trial), the government moved for a below-minimum sentence after citing the substantial assistance to law enforcement that DeBartolo had rendered. On the basis of the plea deal, the district judge sentenced DeBartolo to only 25 months in prison. See 18 U.S.C. § 3553(e); U.S.S.G. § 5K1.1. The distribution charge was dropped, and though DeBartolo pleaded guilty in state court to the electricity theft, the state court imposed a prison sentence to run concurrently with his federal sentence.
There was no mention of deportation in the federal case. But unbeknownst to DeBartolo, and also it seems to his lawyer, the prosecutors, and the judge, his conviction of the drug offense made him deportable (" removable" is the official term) and, were he ordered removed, would prevent him from applying for cancellation of removal. See 8 U.S.C. § § 1101(a)(43), 1227(a)(2)(A)(iii), (B)(i), 1229b(a)(3).
Removal proceedings were indeed instituted, and after he completed his prison sentence he was removed to Italy, where he remains. But while his removal case was pending he had filed a motion in the district court under 28 U.S.C. § 2255(a), claiming that he had been denied effective assistance of counsel in his criminal case in violation of the Sixth Amendment, because his lawyer had failed to warn him that if he were convicted he could well be deported; nor had he been told by anyone else. The relief he sought in his section 2255(a) petition for the failure to warn him of the risk of removal was withdrawal of his guilty plea, which would enable him to request a trial or try to negotiate a plea of guilty to a non-removable offense. The judge denied the petition, precipitating this appeal.
The failure to inform a defendant that if convicted he will be deported was held by the Supreme Court in Padilla v. Kentucky, 559 U.S. 356, 369, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), to be ineffective assistance of counsel, violative of the Sixth Amendment. As later noted in Missouri v. Frye, 132 S.Ct. 1399, 1407, 182 L.Ed.2d 379 (2012), " plea bargains have become so central to the administration of the criminal justice system that defense counsel have responsibilities in the plea bargain process ... that must be met to render the adequate assistance of counsel that the Sixth Amendment requires in the ...