United States v. De Goorte ( 2023 )

22-2324-pr
United States of America v. De Goorte
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
Rulings by summary order do not have precedential effect. Citation to a
summary order filed on or after January 1, 2007, is permitted and is governed by
federal rule of appellate procedure 32.1 and this court’s local rule 32.1.1. When
citing a summary order in a document filed with this court, a party must cite
either the federal appendix or an electronic database (with the notation
“summary order”). A party citing a summary order must serve a copy of it on
any party not represented by counsel.
At a stated term of the United States Court of Appeals for the Second Circuit, held
at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New
York, on the 6th day of November, two thousand twenty-three.
PRESENT:
JOSÉ A. CABRANES,
DENNY CHIN,
MARIA ARAÚJO KAHN,
Circuit Judges.
_____________________________________
ARMIN DE GOORTE, FKA OSAMA AHMED
ABDELLATIF EL MOKADEM,
Petitioner - Appellant,
v.
22-2324
UNITED STATES OF AMERICA,
Respondent - Appellee.
_____________________________________
FOR APPELLEE: COLLEEN P. CASSIDY, Federal Defenders of New
York, Inc., New York, NY
FOR APPELLANT: BRANDON C. THOMPSON, (Hagan Scotten, on the
brief), Assistant United States Attorneys, for
Damian Williams, United States Attorney for
the Southern District of New York, New York,
NY.
Appeal from an order of the United States District Court for the Southern District
of New York (Lewis J. Liman, Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the district court’s order is AFFIRMED.
Defendant-Appellant Armin De Goorte challenges the district court’s denial of his
motion to vacate his conviction pursuant to 28 U.S.C. § 2255. For the reasons explained
below, we affirm.
In August 2019, De Goorte, an Egyptian national living in the United States with
an expired visa, was arrested pursuant to a complaint by the Government charging him
with wire fraud in violation of 18 U.S.C. § 1343, bank fraud in violation of 18 U.S.C. §
1344, and two counts of aggravated identity theft in violation of 18 U.S.C. § 1028A(a)(1).
After initially being represented by a public defender, De Goorte retained attorney James
Schiff.
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In January 2020, the Government obtained a superseding indictment, adding an
additional count of bank fraud.
De Goorte pleaded guilty pursuant to a plea agreement in February 2020 to two
counts of wire fraud and two counts of bank fraud. The plea agreement contained the
following language with respect to the immigration consequences of De Goorte’s
conviction:
The defendant recognizes that, if he is not a citizen of the United States, his
guilty plea and conviction make it very likely that his removal from the
United States is presumptively mandatory and that, at a minimum, he is at
risk of being removed or suffering other adverse immigration
consequences. . . . 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 removal or denaturalization)
resulting from the guilty plea and conviction.
J. App’x. at 140.
During the plea allocution, the court, the Honorable Alison J. Nathan, advised De
Goorte that his guilty plea and conviction “make it very likely” that his “removal from
the United States is presumptively mandatory and that, at a minimum, [he is] at risk of
being removed or suffering other adverse immigration consequences.” Id. at 157–58,
164–65. De Goorte replied that he understood the immigration consequences and he
discussed them with his lawyer. Id.
In March 2021, the court sentenced De Goorte to a substantially below-Guidelines
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term of 24 months in prison followed by three years of supervised release. In July 2020,
De Goorte married Heather Dickerson, an American citizen whom he had met in
November 2019.
In June 2021, De Goorte learned that he would serve his sentence at a private
facility for non-citizens convicted of federal crimes, and that he would automatically be
deported after serving his term of imprisonment. De Goorte claimed that he would not
have entered his guilty plea had he been told that the plea would require his deportation.
He also alleged that Schiff told him that the immigration language on the plea agreement
was standard, and that Schiff never suggested that he consult with an immigration
attorney before entering into the plea agreement. De Goorte further noted that when the
court stated that his removal would be “presumptively mandatory,” he did not
understand that language to mean anything different from what he had been told by
Schiff: “that [De Goorte] did not actually have to worry about being deported.” J. App’x.
at 537.
De Goorte moved for an order, pursuant to 28 U.S.C. § 2255, to vacate his judgment
of conviction claiming that his agreement to plead guilty was the product of unreasonable
and ineffective advice provided by Schiff. In an affirmation, Schiff stated that he advised
De Goorte early in the litigation that he should consult with an immigration attorney, but
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that De Goorte responded that his visa did not have an expiration date. Schiff also stated
that De Goorte did not initially express any concern about immigration consequences.
Schiff noted that De Goorte believed the immigration portion of the plea
agreement was specifically tailored to him because the Assistant United States Attorney
(“AUSA”) and the Judge were trying to have him deported. In response, Schiff told De
Goorte that neither the AUSA nor the Judge were trying to have him deported, and that
the language was standard in every plea agreement. Schiff testified that he went over
the plea agreement, including the immigration consequences, with De Goorte in two
separate meetings. J. App’x at 413–14.
Schiff stated that he never told De Goorte to ignore the immigration warnings in
the plea agreement. He told De Goorte that if he was sentenced as an undocumented
individual, he very likely would get deported, but that De Goorte “might” avoid
deportation by marrying Dickerson or receiving a non-incarceratory sentence. J. App’x
at 463–73.
In September 2023, the district court, the Honorable Lewis J. Liman, 1 held an
evidentiary hearing on the Section 2255 motion. De Goorte, Schiff, and Dickerson all
1 On May 5, 2022, this case was reassigned to Judge Liman following Judge Nathan’s
elevation to this Court.
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testified. The court issued an opinion and order denying the Section 2255 motion. See
De Goorte v. United States, 2022 WL 4364880 (S.D.N.Y. Sept. 20, 2022). The court found
Schiff’s testimony credible but found neither De Goorte’s nor Dickerson’s testimonies
credible. 2 Id. at *17 n.5, 18. The court determined that De Goorte had not shown that
Schiff’s counsel fell below an objective standard of reasonableness or that he was
prejudiced by Schiff’s advice. Id. at *17.
The court concluded that Schiff’s advice concerning how to achieve the lowest
possible jail sentence and possibly avoid deportation was “eminently reasonable.” Id. at
*19. This appeal followed. We assume the parties’ familiarity with the additional
underlying facts, the procedural history, and the issues on appeal, to which we refer only
as necessary to explain our decision to affirm.
DISCUSSION
“On an appeal from the denial of a § 2255 motion, we review a district court’s
conclusions of law de novo but will accept its factual findings unless they are clearly
erroneous.” Sapia v. United States, 433 F.3d 212, 216 (2d Cir. 2005).
2 The district court placed little weight on Dickerson’s testimony, describing her as “not a
disinterested witness,” and finding “her testimony regarding what Schiff purportedly told her . .
. conclusory and lack[ing] any details.” De Goorte v. United States, 2022 WL 4364880 at *21 n.5.
Further, the court noted that it “does not find Dickerson’s testimony to be particularly probative
as she was not present for any of the conversations that are critical to the disposition of this
motion.” Id.6
To show that counsel’s assistance was constitutionally ineffective, a defendant
must demonstrate that: (1) counsel’s performance “fell below an objective standard of
reasonableness” and (2) “the deficient representation prejudiced the defendant.” United
States v. Gahagen, 44 F.4th 99, 107 (2d Cir. 2022) (citing Strickland v. Washington, 466 U.S.
668, 687–88 (1984)). In evaluating counsel’s performance under the first prong of
Strickland, “a reviewing court must indulge a strong presumption that counsel’s conduct
falls within the wide range of reasonable professional assistance.” United States v.
Venturella, 391 F.3d 120, 135 (2d Cir. 2004). To demonstrate prejudice—Strickland’s
second prong—in the context of a guilty plea, a defendant must show a “reasonable
probability that, but for counsel’s errors, he would not have pleaded guilty and would
have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59 (1985).
I. Reasonableness of Schiff’s Representation
First, we address De Goorte’s argument that his case is analogous to Padilla v.
Kentucky, 559 U.S. 356 (2010). In Padilla, the defendant’s attorney told the defendant that
he “did not have to worry about immigration status” when, in fact, his plea would make
his deportation presumptively mandatory. 559 U.S. at 359, 369. But the record here
does not resemble the record in Padilla. Schiff advised De Goorte that he “very likely”
faced deportation. Further, the district court credited Schiff’s testimony that he went
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over the language of the plea agreement twice, in two separate meetings with De Goorte,
and never gave De Goorte any advice contrary to the warning that he would be deported.
De Goorte, 2022 WL 4364880, at *17. Schiff also advised De Goorte to consult with an
immigration attorney well before De Goorte pleaded guilty. There is no evidence in the
record to suggest that, as a factual matter, Schiff’s statements to De Goorte that he
“might” be able to avoid deportation through marriage or a non-incarceratory sentence
were inaccurate. The district court also credited Schiff’s testimony that although he told
De Goorte those provisions were standard and not specifically targeted to him, Schiff did
not advise De Goorte to ignore them. De Goorte does not challenge the court’s finding
that Schiff’s testimony was credible.
De Goorte also faults Schiff for using words such as “likely” and “very likely” to
describe his odds of being removed. De Goorte argues that this language is contrary to
what the Court requires in Padilla—advising that a guilty plea will subject the defendant
to the “truly clear” consequence of presumptively mandatory deportation. 559 U.S. at
357. De Goorte does not say why an attorney cannot explain legal terms using more
accessible language than “presumptively mandatory.” As the district court explained,
“the Sixth Amendment does not require counsel to recite those words,” such as
presumptively mandatory, “in haec verba.” De Goorte v. United States, 2022 WL 43648808
at *17. De Goorte cannot dispute that Schiff’s advice put him on notice that his guilty
plea would place him at serious risk of deportation.
Ultimately, the district court found that Schiff’s overall defense strategy “was
eminently reasonable and had a possibility of success.” Id. at 19. As the district court
correctly found, Schiff did not give De Goorte incorrect advice or undermine the
warnings in the plea agreement but rather, properly advised him that deportation would
be very likely if he were convicted. Counsel’s performance did not fall below the
objective standard of reasonableness.
II. Prejudice
De Goorte contests the district court’s conclusion that De Goorte did not show
prejudice because he did not prove that avoiding deportation was his primary concern.
The record does not demonstrate that De Goorte placed a high value on avoiding
deportation and, thus, would have elected to go to trial rather than take a guilty plea. A
defendant’s background, history in the United States, family circumstances, and gainful
employment all provide circumstantial evidence about whether a defendant placed
particular emphasis on immigration consequences in deciding to plead guilty. Doe v.
United States, 915 F.3d 905, 912 (2d Cir. 2019). Although De Goorte had been in the
United States for nearly fifteen years at the time of his guilty plea, he has no relatives and
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very few close friends in the United States. His mother and siblings reside in Egypt. As
noted by the district court, he had no legal employment history but was in the process of
trying to launch a business. He admitted that his closest connection in the United States
was Dickerson, whom he first met after charges were brought against him in this case
and whom he married on the advice of counsel. Schiff’s testimony, which the court
credited, was that De Goorte’s primary concern or motivation was not avoiding
deportation but rather incarceration. These facts do not support De Goorte’s claim that
immigration consequences were his primary concern.
The district court’s conclusion that the evidence does not support a finding of
prejudice because immigration was not De Goorte’s primary concern was not clearly
erroneous. The record establishes that at the time of the plea, De Goorte would have
taken the plea deal even if his counsel’s advice regarding immigration consequences
could be deemed unreasonable.
We have reviewed De Goorte’s other arguments and find them to be unavailing.
For the foregoing reasons, the order of the district court denying De Goorte’s motion to
vacate his conviction is AFFIRMED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court
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