UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 2011
July 23, 2012
UNITED STATES OF AMERICA, APPELLEE,
MARK ALLEN YOUNGS, DEFENDANT-APPELLANT.
The opinion of the court was delivered by: Droney, Circuit Judge:
United States v. Youngs
Argued: March 23, 2012
28 Before: LIVINGSTON, LYNCH, and DRONEY, Circuit Judges.
30 Appeal from a conviction for production and possession of child pornography following 31 a guilty plea. Appellant argues that his plea is constitutionally invalid because the district court 32 (Siragusa, J.) did not apprise him of the possibility of civil commitment as a sexually dangerous 33 person at the end of his prison term. We hold that due process and Rule 11 of the Federal Rules 34 of Criminal Procedure did not require the district court to advise him of that possibility. We 35 accordingly AFFIRM the conviction.
13 Defendant Mark Allen Youngs ("Youngs") appeals from his judgment of conviction. On 14 August 27, 2008, Youngs waived indictment and pleaded guilty in the U.S. District Court for the 15 Western District of New York to a two-count Superseding Information that charged him with 16 producing child pornography in violation of 18 U.S.C. § 2251(a) ("Count One"); and possessing 17 child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B), (b)(2) ("Count Two"). Youngs 18 argues that his plea was defective because the district court did not advise him of the possibility 19 of civil commitment as a sexually dangerous person at the end of his prison term. We hold that 20 the district court was not required by due process or Rule 11 of the Federal Rules of Criminal 21 Procedure ("Rule 11") to advise Youngs of the possibility of civil commitment and affirm the 22 conviction.
24 I. The Plea
25 Youngs pleaded guilty pursuant to a plea agreement that set forth the possible sentences 26 for each count of the child pornography offenses in the Information: Count One carried a 27 mandatory minimum sentence of 15 years' imprisonment and a possible maximum sentence of 1 30 years' imprisonment, a fine of $250,000, a mandatory special assessment, and a term of 2 supervised release of up to life; and Count Two carried a maximum sentence of 10 years' 3 imprisonment, a fine of $250,000, a mandatory special assessment, and a term of supervised 4 release of up to life.
5 At his plea hearing, the district court reviewed in detail the plea agreement with Youngs 6 and the various rights set forth in Rule 11. As a part of this review, the court described the 7 minimum and maximum sentences of imprisonment, the supervised release term that Youngs 8 faced, the forfeiture of his computer equipment, and his obligations under the Sex Offender 9 Registration and Notification Act*fn1 following his release from incarceration. Youngs responded 10 that he understood all of these consequences. He waived his right to indictment and pleaded 11 guilty to both Counts of the Information. The court accepted his plea. 12 On October 15, 2010, the court sentenced Youngs to concurrent sentences of 13 imprisonment for 240 months on Count One and 120 months on Count Two, and 40 years of 14 supervised release with numerous conditions. The court also imposed the special assessment for 15 each count.
16 II. Civil Commitment Under the Adam Walsh Act
17 On appeal, Youngs disputes the validity of his guilty plea because the district court did 18 not inform Youngs that by pleading guilty, he faced the possibility of civil commitment under 19 the Adam Walsh Child Protection and Safety Act of 2006 (the "Act") following the completion 20 of his incarceration. See 18 U.S.C. § 4248(a) (2006).
1 The Act permits the Attorney General or the Director of the Bureau of Prisons ("BOP") 2 to certify an individual in the custody of the BOP approaching the end of his period of 3 incarceration as a "sexually dangerous person." Id. The inmate is provided a hearing in the 4 district court, and his release from incarceration is stayed. Id. If, at the hearing, the Government 5 demonstrates by clear and convincing evidence that the inmate is "sexually dangerous," the 6 inmate is committed to further custody until the court determines that he is no longer sexually 7 dangerous. Id. § 4248(d)-(e). A "sexually dangerous person" is defined as a person who (1) 8 "has engaged or attempted to engage in sexually violent conduct or child molestation" and (2) 9 "is sexually dangerous to others" in that he "suffers from a serious mental illness, abnormality, 10 or disorder as a result of which he would have serious difficulty in refraining from sexually 11 violent conduct or child molestation if released." Id. § 4247(a)(5)-(6).
13 I. Due Process Requirements for Guilty Pleas
14 "It is a settled principle of federal constitutional law that a guilty plea violates due 15 process and is therefore invalid if not entered voluntarily and intelligently." Wilson v. McGinnis, 16 413 F.3d 196, 199 (2d Cir. 2005) (citing Brady v. United States, 397 U.S. 742, 748 (1970); 17 Boykin v. Alabama, 395 U.S. 238, 242-43 (1969)). A district court may not accept a guilty plea 18 "without an affirmative showing that it was intelligent and voluntary." Boykin, 395 U.S. at 242. 19 Rule 11 sets forth certain requirements of the district court's plea allocution to assist the court 20 with "making the constitutionally required determination that a defendant's guilty plea is truly 21 voluntary." McCarthy v. United States, 394 U.S. 459, 465 (1969). To abide by Rule 11, the 22 district court must advise the defendant of the right to plead not guilty, the rights waived by 1 pleading guilty, and other specific consequences of pleading guilty, such as the maximum 2 penalties he faces, "including imprisonment, fine, and term of supervised release." Fed. R. Crim. 3 P. 11(b)(1); Zhang v. United States, 506 F.3d 162, 168 (2d Cir. 2007) ("Rule 11 sets forth 4 requirements for a plea allocution and is designed to ensure that a defendant's plea of guilty is a 5 voluntary and intelligent choice . . . ." (internal quotation marks omitted)).
6 However, any "variance from the requirements of [Rule 11] is harmless error if it does 7 not affect substantial rights." Fed. R. Crim. P. 11(h). Rule 11 violations that are not objected to 8 at the time of the plea are subject to plain error review under Rule 52(b) of the Federal Rules of 9 Criminal Procedure. United States v. Vonn, 535 U.S. 55, 62-63 (2002). Plain error review 10 requires a defendant to demonstrate that "(1) there was error, (2) the error was plain, (3) the error 11 prejudicially affected his substantial rights, and (4) the error seriously affected the fairness, 12 integrity or public reputation of judicial proceedings." United States v. Flaharty, 295 F.3d 182, 13 195 (2d Cir. 2002) (internal quotation marks and brackets omitted). To be plain, an error of the 14 district court must be "obviously wrong in light of existing law." United States v. Pipola, 83 15 F.3d 556, 561 (2d Cir. 1996). Additionally, to show that a Rule 11 violation was plain error, the 16 defendant must demonstrate "that there is 'a reasonable probability that, but for the error, he 17 would not have entered the plea.'" United States v. Vaval, 404 F.3d 144, 151 (2d Cir. 2005) 18 (quoting United States v. Dominguez Benitez, 542 U.S. 74, 83 (2004)).
19 The Government asserts that Youngs did not timely object during his plea proceeding, 20 and therefore this Court should review his claim under the plain error standard. Youngs does not 21 disagree, and issues not argued in the briefs are considered waived. See Norton v. Sam's Club, 22 145 F.3d 114, 117 (2d Cir. 1998). Moreover, regardless of the standard of review, we hold that 1 the district court did not err by accepting Youngs's guilty plea without advising him of the civil 2 commitment implications of the Act.
3 The United States Supreme Court has concluded that a defendant can make an intelligent 4 and voluntary guilty plea satisfying due process if he is "fully aware of the direct consequences" 5 of a guilty plea. Brady, 397 U.S. at 755 (emphasis added) (adopting the language of the Fifth 6 Circuit in Shelton v. United States, 246 F.2d 571, 572 n.2 (5th Cir. 1957) (en banc), rev'd on 7 other grounds, 356 U.S. 26 (1958)). However, "[c]ertain possible consequences of a guilty plea 8 are 'collateral' rather than direct and need not be explained to the defendant in order to ensure 9 that the plea is voluntary." United States v. U.S. Currency in the Amount of $228,536.00, 895 10 F.2d 908, 915 (2d Cir. 1990) (listing examples of collateral consequences, such as parole 11 revocation, the likelihood of an unfavorable military discharge, and the potential for civil 12 commitment proceedings). Thus, district courts need not inform a defendant of collateral 13 consequences during the plea colloquy. See United States v. Salerno, 66 F.3d 544, 550-51 (2d 14 Cir. 1995) (holding that an enhancement in a future sentence based on the present conviction is a 15 collateral consequence and need not be advised of by the district court in its plea colloquy). The 16 requirements of Rule 11 are consistent with the principle that due process only requires courts to 17 advise of direct consequences. Michel v. United States, 507 F.2d 461, 465 (2d Cir. 1974) ("Rule 18 11 does not affect the long-standing rule in this as well as other circuits that the trial judge when 19 accepting a plea of guilty is not bound to inquire whether a defendant is aware of the collateral 20 effects of his plea.").
21 This Court has described direct consequences as those that have a "definite, immediate 22 and largely automatic effect on the range of the defendant's punishment," and any other 1 consequence is merely collateral. Wilson, 413 F.3d at 199 (internal quotation marks omitted); 2 see also Salerno, 66 F.3d at 551 (affirming a conviction because an increased penalty for a future 3 drug offense, while a "foreseeable possibility," is not "definite, immediate, and largely 4 automatic" and therefore did not void the original guilty plea (internal quotation marks 5 omitted)); U.S. Currency, 895 F.2d at 916 ("[C]ivil forfeiture is not a direct consequence of a 6 guilty plea because it does not represent a definite, immediate and largely automatic effect on the 7 range of the defendant's punishment." (internal quotation marks omitted)).
8 Civil commitment under the Act is not "definite, immediate, and largely automatic." See 9 U.S. Currency, 895 F.2d at 916. Youngs will not face possible confinement under the Act until 10 the end of his period of incarceration. Once he reaches that time, civil commitment is uncertain; 11 the Government would first have to choose to certify Youngs for civil commitment and then 12 would have to prove by clear and convincing evidence that Youngs is, at that time, a sexually 13 dangerous person. To do so, it will have to demonstrate both a predicate act of sexual violence 14 or child molestation as well as an illness, abnormality or disorder that makes him dangerous to 15 others. The evidence available to support Youngs's conviction on Count One likely satisfies the 16 first element, but the future satisfaction of the second element is far from certain at this time.*fn2
1 Because the possibility of civil commitment will only arise at the end of Youngs's twenty-year 2 prison sentence and then will occur only if the Government meets its high burden under the Act, 3 civil commitment is not definite, immediate, and automatic, and is therefore not a "direct" 4 consequence of a guilty plea as defined by this Court. Other circuits have come to the same 5 conclusion regarding similar civil commitment statutes. Steele v. Murphy, 365 F.3d 14, 17 (1st 6 Cir. 2004) (holding that potential civil commitment under a state statute was a "collateral 7 consequence of pleading guilty"); George v. Black, 732 F.2d 108, 110-11 (8th Cir. 1984) 8 (holding that the possibility that a sex offender could face civil commitment under a state statute 9 was a collateral consequence because "civil commitment does not flow automatically from the 10 plea"). Because civil commitment is a collateral consequence, the district court was not required 11 to advise of the possibility of civil commitment before accepting Youngs's plea.
12 II. The Impact of Padilla
13 Youngs, however, urges this Court to ignore what he terms the "formalist distinction 14 between direct and collateral consequences." He relies upon the United States Supreme Court's 15 holding in Padilla v. Kentucky that a defense attorney's incorrect advice to his client about the 16 risk of deportation constituted ineffective assistance of counsel in violation of the Sixth 17 Amendment and the language in the opinion that indicates that the direct/collateral distinction 18 may not be apt in the Sixth Amendment context. 130 S. Ct. 1473, 1481-82 (2010).
19 In Padilla, the Kentucky Supreme Court had rejected below the defendant's ineffective 20 assistance of counsel claim based on his lawyer's advice that he was unlikely to be deported as a 21 result of his guilty plea for a state drug charge. Id. at 1478, 1481. The U.S. Supreme Court 22 reversed, finding that the severity of deportation as a consequence of a guilty plea, as well as the 1 changes in federal immigration law that have made deportation "virtually inevitable" for many 2 offenses, require that counsel give accurate advice on deportation to noncitizens prior to a guilty 3 plea proceeding involving those offenses. Id. at 1478. In the context of the Sixth Amendment 4 right-to-counsel analysis, the Court found deportation "uniquely difficult to classify as either a 5 direct or collateral consequence," id. at 1482, because noncitizens convicted of certain crimes 6 faced almost certain deportation and deportation is an "integral part" of the penalty for those 7 crimes, id. at 1480. Noting that it had "never applied a distinction between direct and collateral 8 consequences" to define reasonable assistance of counsel in the Sixth Amendment context, the 9 Court determined that the distinction was "ill-suited" for evaluating the effectiveness of counsel 10 in advising of deportation, and held that "advice regarding deportation is not categorically 11 removed from the ambit of the Sixth Amendment right to counsel." Id. at 1481-82.
12 While Youngs refers to Padilla as representing a "trend away from the distinction 13 between direct and collateral consequences," Appellant Br. at 22, Padilla's holding was limited 14 to the requirement of counsel to advise of deportation pursuant to their Sixth Amendment 15 responsibilities. These Sixth Amendment responsibilities of counsel to advise of the advantages 16 and disadvantages of a guilty plea are greater than the responsibilities of a court under the Fifth 17 Amendment. See Libretti v. United States, 516 U.S. 29, 50-51 (1995) (holding that counsel, not 18 the court, bears the responsibility of advising a defendant of the consequences of a guilty plea, 19 apart from the "small class of rights" enumerated in Rule 11). Thus, the Padilla Court's 20 unwillingness to apply the direct/collateral distinction in the Sixth Amendment context does not 21 demonstrate the Court's intention to do away with that distinction entirely in the Fifth 22 Amendment context. See United States v. Delgado-Ramos, 635 F.3d 1237, 1240 (9th Cir. 2011)
1 (noting that in Padilla the Court "had no occasion to consider the scope of a district court's 2 obligation" under due process or Rule 11, or "the continued viability of the distinction between 3 direct and collateral consequences in the due process context"); see also United States v. 4 Nicholson, 676 F.3d 376, 381 n.3 (4th Cir. 2012) (noting that the Court in Padilla did not 5 address district courts' Rule 11 obligations).
6 While the Court in Padilla did not discard the direct/collateral distinction for due 7 process, we recognize that Padilla may create some uncertainty as to the usefulness of 8 categorizing certain consequences as either "direct" or "collateral" in the Fifth Amendment 9 context.*fn3 We nonetheless conclude that advising of the possibility of civil commitment under the 10 Act does not fall within the scope of a district court's due process obligations because the 11 concerns expressed by the Supreme Court in Padilla as to deportation in the context of adequate 12 counsel under the Sixth Amendment do not apply to such a remote and uncertain consequence as 13 civil commitment.*fn4
14 In deeming deportation a "virtually inevitable" result of a noncitizen's conviction for 1 certain offenses, the Supreme Court pointed out in Padilla that the only way for such defendants 2 to avoid deportation is the "possible exercise of limited remnants of equitable discretion vested 3 in the Attorney General to cancel removal for noncitizens convicted of particular classes of 4 offenses." Padilla, 130 S. Ct. at 1478, 1480. Because deportation under these circumstances is 5 nearly automatic, the Court concluded that deportation must be reviewed by counsel. Id. at 6 1482-83. As discussed above, however, future civil commitment under the Act is not nearly as 7 certain. The Act provides discretion to the Government in choosing whom to certify for possible 8 civil commitment. Unlike deportation, the district court ultimately determines whether a 9 defendant is civilly committed. While the qualifying misconduct here is likely a predicate to 10 consideration for civil commitment, once the Government decides to certify an inmate--Youngs 11 or anyone else--for civil commitment, the Government will still have to establish by clear and 12 convincing evidence that the inmate suffers from a condition that will make him sexually 13 dangerous to others.*fn5 Thus, the likelihood of Youngs's civil commitment is uncertain, both at 14 the time of his plea and at the completion of his period of incarceration.
15 We conclude, therefore, that the district court had no obligation to advise Youngs of the 16 possibility of civil commitment prior to accepting his guilty plea.*fn6
2 The district court was not required to advise Youngs of the possibility of civil 3 commitment under the Act before accepting his guilty plea. Therefore, we hold that Youngs's 4 plea was knowing and voluntary and AFFIRM his conviction.