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Chowdhary v. United States

United States District Court, S.D. New York

January 22, 2015

RIAZUL HAQ CHOWDHARY, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

MEMORANDUM OPINION AND

JOHN G. KOELTL, District Judge.

Riazul Haq Chowdhary, appearing pro se, moves to vacate, alter, or amend his guilty plea, sentence, and judgment of conviction in a petition styled alternatively as a motion for a writ of coram nobis or for relief under 18 U.S.C. § 2255. The petitioner was convicted pursuant to his plea of guilty to one count of money laundering in violation of 18 U.S.C. § 1956(a)(1)(B)(i). The petitioner was sentenced principally to time served-which amounted to virtually no time of imprisonment- and a term of three years' supervised release. Pursuant to a plea agreement, the petitioner waived his right to appeal or litigate under 28 U.S.C. §§ 2255 and 2241 any sentence within or below the Stipulated Guidelines Range of eighteen to twenty-four months' imprisonment. He also agreed not to challenge his conviction or sentence on the basis of any adverse immigration consequences (including deportation) resulting from his guilty plea and conviction. The petitioner primarily alleges that his defense counsel did not advise him that he would be subject to mandatory deportation as a result of his conviction, and thereby rendered ineffective assistance under the Sixth Amendment of the United States Constitution.

I.

On October 6, 2011, Chowdhary waived his right to be indicted by a grand jury, and Information 11 Cr. 859 (JGK) (the "Information") was filed to which Chowdhary pleaded not guilty. The Information charged Chowdhary in four counts alleging various offenses. Count Four charged that Chowdhary laundered money in violation of 18 U.S.C. § 1956(a)(1)(B)(i).

On September 6, 2012, Chowdhary appeared before this Court and pleaded guilty to Count Four pursuant to a Plea Agreement with the Government. Under the terms of the Plea Agreement, the parties agreed that any open counts would be dismissed. Significantly, the Plea Agreement addressed the possible immigration consequences of Chowdhary's plea:

The defendant recognizes that because he is not a citizen of the United States, his guilty plea and conviction make it very likely that his deportation from the United States is presumptively mandatory and that, at a minimum, he is at risk of being deported or suffering other adverse immigration consequences.

Plea Agreement dated Dec. 23, 2011 ("Plea Agr.") at 5.

The Plea Agreement also indicated that Chowdhary had discussed the possible immigration consequences with his counsel:

The defendant acknowledges that he has discussed the possible immigration consequences (including deportation) of his guilty plea and conviction with defense counsel. The defendant affirms that he wants to plead guilty regardless of any immigration consequences that may result from the guilty plea and conviction, even if those consequences include deportation from the United States. It is agreed that the defendant will have no right to withdraw his guilty plea based on any actual or perceived adverse immigration consequences (including deportation) resulting from the guilty plea and conviction. It is further agreed that the defendant will not challenge his conviction or sentence on direct appeal, or through litigation under Title 28, United States Code, Section 2255 and/or Section 2241, on the basis of any actual or perceived adverse immigration consequences (including deportation) resulting from his guilty plea and conviction.

Plea Agr. at 5. The Plea Agreement also contained a separate general waiver of any direct appeal or collateral challenge if Chowdhary was sentenced within or below the Stipulated Guidelines Range of 18 to 24 months' imprisonment. Plea Agr. at 4.

At Chowdhary's guilty plea, this Court conducted an allocution in conformity with Rule 11 of the Federal Rules of Criminal Procedure. Chowdhary was placed under oath and then answered a series of questions establishing that he was competent to enter a guilty plea. Tr. of Plea Allocution on Sept. 6, 2012 ("Plea Tr.") 3-7. The Court advised Chowdhary, who was proceeding without an interpreter, to ask the Court to stop if Chowdhary did not understand anything the Court was saying, and Chowdhary agreed. Plea Tr. 4-5.

As to his immigration status, Chowdhary stated that he was not a citizen of the United States but was a permanent resident. Plea Tr. 4. Chowdhary stated that he had had a full opportunity to discuss the case with his counsel and discuss the consequences of entering a plea. Plea Tr. 6-7. Chowdhary affirmed that he was satisfied with the work of his counsel. Plea Tr. 7. Chowdhary acknowledged the various rights he was giving up by pleading guilty. Plea Tr. 7-10. Chowdhary acknowledged that he consented to being charged by Information rather than indictment. Plea Tr. 11-12. Chowdhary was also advised of the nature of the charge to which he was pleading guilty, Plea Tr. 11-13, the maximum penalties for that charge, and the implications of any term of supervised release. Plea Tr. 13-15.

The Court examined Chowdhary about the immigration consequences of Chowdhary's plea. Plea Tr. 15-17. When the Court first asked Chowdhary about whether Chowdhary understood that his guilty plea "may be able to be used as a basis to remove [him] from the United States, what used to be called deportation, " Chowdhary responded, "That I need mercy. I have very small children. I don't have a life. My wife is sick. That's why I'm pleading guilty with the government." Plea Tr. 15-16. Once Chowdhary responded in this way, the Court advised him to speak with his counsel. After Chowdhary had spoken with his counsel about the Court's question, the Court stated, "Now, what I want to make sure you understand is, this guilty plea can have consequences for your status in the United States. The guilty plea and the resulting conviction can be used as a basis to remove you from the United States." Plea Tr. 16. The Court continued, "I can't tell you that that's what's going to happen, but I can tell you that it is a possible consequence of your guilty plea and the resulting conviction.... Are you aware of that possible consequence?" Plea Tr. 16. Chowdhary responded that he was. Plea Tr. 16. The Court also asked Chowdhary if he had discussed the immigration consequences of the guilty plea with his lawyer, and Chowdhary replied that he had. Plea Tr. 16-17.

As to the Plea Agreement, Chowdhary acknowledged that he signed it, that he discussed it with his attorney before signing it, and that he fully understood it before signing it. Plea Tr. 19-20. The Court discussed with Chowdhary the provision of the Plea Agreement in which Chowdhary agreed to waive his right to file an appeal or collateral challenge if the Court sentenced him within or below the Stipulated Guidelines range. Plea Tr. 21. Chowdhary acknowledged that he understood that provision. Plea Tr. 21. The Court ensured ...


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