Criminal Defense of Immigrants


§ 8.50 (C)

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(C)  Binding Nature of Plea Agreement.  The greatest care must be taken in crafting the plea agreement, since to the defendant’s benefit or detriment, the plea agreement is very likely to be taken as binding even if there would otherwise be strong legal arguments that the conviction is invalid or that particular immigration consequences do not attach to the conviction.  For example, in United States v. Kelly,[108] Kelly pleaded guilty to being a felon in possession of a firearm.[109]  Under the complicated applicable law, however, the defendant was not in fact a previously convicted felon when he entered this plea.  The court of appeals, declined to vacate this conviction because the defendant “pleaded guilty . . . thereby admitting all elements of the crime charged against him, including the fact that he was a felon.”[110]  Unlike the felon element of 18 U.S.C. § 922(g), prior aggravated felony conviction is not an element of a § 1326 charge.[111]  Nevertheless, just as Rule 11 of the Rules of Criminal Procedure permits a court to accept a defendant’s plea that he is guilty of an offense, Rule 11(e)(1)(C) also permits a court to accept a defendant’s plea that a particular sentencing factor is applicable in his case. Furthermore, Rule 11(e)(1)(C) states that once a court accepts a plea to this effect, the “plea agreement is binding on the court.”  As a result, under Kelly, a defendant who enters a plea agreement providing that a certain prior conviction constitutes an aggravated felony conviction for sentence enhancement purposes may not later challenge that conclusion on appeal.

[108] United States v. Kelly, 62 F.3d 1215 (9th Cir. 1995).

[109] 18 U.S.C. § 922(g)(1).

[110] United States v. Kelly, 62 F.3d 1215 at 1216 (9th Cir. 1995), citing United States v. Matthews, 833 F.2d 161, 164 (9th Cir. 1987).

[111] United States v. Pacheco-Zepeda, 234 F.3d 411, 413-14 (9th Cir. 2001).