United States v. Maurice Hollins ( 2023 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 21-10320
Plaintiff-Appellee, D.C. No.
3:20-cr-08083-
v. DLR-1
MAURICE XAVIER HOLLINS,
OPINION
Defendant-Appellant.
Appeal from the United States District Court
for the District of Arizona
Douglas L. Rayes, District Judge, Presiding
Argued and Submitted April 18, 2023
Phoenix, Arizona
Filed June 20, 2023
Before: John B. Owens and Bridget S. Bade, Circuit
Judges, and M. Miller Baker,* International Trade Judge.
Opinion by Judge Owens
*
The Honorable M. Miller Baker, Judge for the United States Court of
International Trade, sitting by designation.
2 UNITED STATES V. HOLLINS
SUMMARY**
Criminal Law
Dismissing Maurice Hollins’s appeal from his
conviction for abusive sexual contact of a child under age
twelve, the panel held that Hollins’s guilty plea was knowing
and voluntary, and the appellate waiver included in his plea
agreement was therefore in force.
The panel held that the district court’s failure to inform
Hollins that his conviction could potentially lead to
subsequent civil commitment, community notification, and
geographic restrictions on his residence and workplace did
not render his guilty plea unknowing and involuntary
because these three post-release effects were collateral rather
than direct consequences of the plea.
Following United States v. Delgado-Ramos, 635 F.3d
1237 (9th Cir. 2011) (per curiam), the panel held that Padilla
v. Kentucky, 559 U.S. 356 (2010), holding that the Sixth
Amendment requires defense counsel to advise a client
whether a guilty plea carries a risk of deportation, does not
require a court, under Federal Rule of Criminal Procedure
11, to advise a defendant about possible civil commitment,
geographic restrictions, and community notification
consequences of a guilty plea.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
UNITED STATES V. HOLLINS 3
COUNSEL
Donna L. Elm (argued), Law Practice of Donna Elm,
Cottonwood, Arizona, for Defendant-Appellant.
Jason T. Crowley (argued), Assistant United States
Attorney; Krissa M. Lanham, Appellate Division Chief;
Gary M. Restaino, United States Attorney; Office of the
United States Attorney, Phoenix, Arizona; for Plaintiff-
Appellee.
OPINION
OWENS, Circuit Judge:
Defendant-Appellant Maurice Hollins pleaded guilty to
abusive sexual contact of a child under age twelve in
violation of 18 U.S.C. §§ 1152, 2244(a)(5), and 2246(3). He
now argues that his plea was not knowing and voluntary, and
therefore his appeal waiver is invalid, because the district
court failed to inform him that his conviction could
potentially lead to subsequent civil commitment, community
notification, and geographic restrictions on his residence and
workplace. We have jurisdiction under 28 U.S.C. § 1291,
and we affirm.
I. BACKGROUND
Hollins, a non-Indian resident of Arizona, had unlawful
sexual contact with an eight-year-old member of the Navajo
Nation Indian Tribe while within the confines of the Navajo
Nation. An indictment charged Hollins with three counts,
and he agreed to plead guilty to Count Two, abusive sexual
4 UNITED STATES V. HOLLINS
contact of a child under age twelve. Pursuant to the plea
agreement, Counts One and Three—both charging Hollins
with aggravated sexual abuse of a child under age twelve—
were dismissed and the parties stipulated to a sentencing
range of thirteen to twenty-five years’ imprisonment. The
agreement contained an appellate waiver. It also outlined
the elements of the offense, possible criminal penalties, and
a condition requiring Hollins to register as a sex offender in
accordance with tribal, state, and federal law. The plea
agreement did not mention that his conviction could possibly
lead to civil commitment or Arizona-specific geographic
restrictions and community notification.
At a change of plea hearing, the magistrate judge
reviewed the plea agreement, advised Hollins of these same
criminal penalties, and informed him of his registration
obligations. The magistrate judge did not mention the
possibility of civil commitment or Arizona-specific
geographic restrictions and community notification. At a
subsequent hearing, the district judge accepted the plea and
sentenced Hollins to 270 months in custody. Hollins timely
appealed.
II. Discussion
A. Standard of Review
We review de novo the validity of a waiver of the right
to appeal and the voluntariness of a guilty plea. United
States v. Littlejohn, 224 F.3d 960, 964 (9th Cir. 2000).1
1
Where, as here, a defendant failed to object to an error under Federal
Rule of Criminal Procedure 11 (“Rule 11”), we conduct plain error
review. United States v. Vonn, 535 U.S. 55, 59 (2002). Because there
UNITED STATES V. HOLLINS 5
B. Appellate Waiver
We enforce an appellate waiver when (1) its language
clearly and unambiguously encompasses the defendant’s
right to appeal on the grounds raised, and (2) it was
knowingly and voluntarily made. United States v. Wells, 29
F.4th 580, 583 (9th Cir. 2022).
Hollins does not contest that the plea agreement included
an appellate waiver that clearly and unambiguously
encompassed the right to challenge the validity of the plea.
However, waivers must “stand or fall with the agreement of
which they are a part,” so we must first decide Hollins’ claim
that the plea itself was not knowingly and voluntarily entered
under Rule 11 to determine whether the appellate waiver is
enforceable. United States v. Portillo-Cano, 192 F.3d 1246,
1250 (9th Cir. 1999) (citation omitted); see also United
States v. Bibler, 495 F.3d 621, 624 (9th Cir. 2007) (“An
appeal waiver will not apply if . . . a defendant’s guilty plea
failed to comply with Fed. R. Crim. P. 11[.]”).2
C. Application of Rule 11 to Collateral
Consequences
“[C]ompliance with Rule 11 is the means by which the
court is assured that the defendant’s guilty plea is voluntarily
and knowingly made.” Portillo-Cano, 192 F.3d at 1250. As
required by the rule, the magistrate judge addressed Hollins
was no error, we do not address the other elements of the plain error
analysis.
2
No other exception to enforcing an appellate waiver applies in this case.
Hollins does not challenge his sentence as illegal nor argue that the
sentencing judge misinformed him about his right to appeal or levied a
sentence that did not comport with the plea agreement’s terms. See
Bibler, 495 F.3d at 624.
6 UNITED STATES V. HOLLINS
in open court to ensure his plea was voluntary. See Fed. R.
Crim. P. 11(b)(2). The magistrate judge placed him under
oath and informed him of the rights he waived by pleading
guilty, and that he would be subject to lifetime supervised
release and sex offender registration. See id. at 11(b)(1).
Hollins does not dispute this. He contends, however, that his
plea is invalid because the court failed to inform him of three
post-release “consequences” of his guilty plea: (1) the
possibility of civil commitment under state or federal law,
(2) geographic restrictions imposed against sex offenders by
state law, and (3) community notification required under
state law. He is incorrect.
Courts have long distinguished direct and collateral
consequences in the context of guilty pleas. See Littlejohn,
224 F.3d at 965 (summarizing distinctions and providing
examples). A direct consequence is one that “represents a
definite, immediate and largely automatic effect on the range
of the defendant’s punishment.” Torrey v. Estelle, 842 F.2d
234, 236 (9th Cir. 1988) (citation omitted). But “where the
consequence is contingent upon action taken by an
individual or individuals other [than] the sentencing court—
such as another governmental agency or the defendant
himself—the consequence is generally ‘collateral.’”
Littlejohn, 224 F.3d at 965. “A plea of guilty is voluntary
only if it is entered by one fully aware of the direct
consequences of his plea.” Torrey, 842 F.2d at 235 (internal
quotation marks and citations omitted). Thus, before
accepting a guilty plea, a court must inform a defendant of
the direct consequences, but not the collateral ones. Id.Hollins’ argument fails because it relies on three
textbook examples of collateral consequences. First, as the
Second Circuit has explained, civil commitment is not a
definite, immediate, or largely automatic consequence of
UNITED STATES V. HOLLINS 7
conviction. United States v. Youngs, 687 F.3d 56, 61 (2d
Cir. 2012) (“Because the possibility of civil commitment
will only arise at the end of [the defendant’s] twenty-year
prison sentence and then will occur only if the Government
meets its high burden under the Act, civil commitment is not
definite, immediate, and automatic, and is therefore not a
‘direct’ consequence of a guilty plea as defined by this
Court.”). Eligible offenders may be committed after
conviction of a sex offense, but that is not always the case.
See id. For example, under both the federal and state statutes
at issue, Hollins would be entitled to a hearing to determine
whether commitment is authorized and provided with the
assistance of counsel. 18 U.S.C. §§ 4247(d), 4248(c)–(d);
Ariz. Rev. Stat. §§ 36-3704(C) to -3706. And in each
instance, the government must prove that he suffers from a
serious mental illness that would make him likely to engage
in further sexual violence. See 18 U.S.C. § 4247(a)(5)–(6);
Ariz. Rev. Stat. § 36-3701(7). Thus, civil commitment does
not automatically flow from conviction.
Hollins emphasizes that he is likely to meet the
requirements for commitment due to his serious mental
illness. Yet even if that prediction comes true, it does not
change our analysis because commitment is still uncertain at
the time a defendant enters his plea. See Youngs, 687 F.3d
at 60–61 n.2 (explaining that, notwithstanding the likelihood
of commitment, what is relevant is that the commitment
hearing involves the resolution of multiple factual and legal
issues at the time commitment is sought).
Further, both statutes place the discretion to pursue civil
commitment in a non-judicial actor. Under the federal
statute, the process may be initiated by the Attorney General
or the Director of the Bureau of Prisons. 18
U.S.C. § 4248(a). Under the Arizona statute, the power lies
8 UNITED STATES V. HOLLINS
with the county attorney. Ariz. Rev. Stat. § 36-3704(A).
Thus, the discretionary decision to pursue civil commitment
of a sex offender is outside the power of the sentencing
judge, suggesting the consequence is collateral. See
Littlejohn, 224 F.3d at 965.
Accordingly, like every other circuit to address this
issue, we hold that possible civil commitment is a collateral
consequence of conviction. See Steele v. Murphy, 365 F.3d
14, 17–18 (1st Cir. 2004) (explaining that civil commitment
was collateral because there were “many steps,” including a
“full evidentiary hearing,” between the defendant’s
conviction and ultimate commitment); Youngs, 687 F.3d at
60 (“Civil commitment . . . is not ‘definite, immediate, and
largely automatic.’” (citation omitted)); Cuthrell v. Dir.,
Patuxent Inst., 475 F.2d 1364, 1366 (4th Cir. 1973)
(determining that, although a defendant “might, as a result of
the judgment in an entirely separate civil proceeding, in
which he would be afforded counsel and all due process
rights, . . . be committed,” the consequence was collateral);
George v. Black, 732 F.2d 108, 110–11 (8th Cir. 1984)
(holding that civil commitment did not “flow automatically
from the plea,” and thus was collateral, even where
commitment proceedings were a mandatory result of
conviction).
The possible state-law geographic restrictions and
community notification requirements are equally collateral.
None of the consequences of Hollins’ federal conviction
imposed under Arizona state law can be characterized as
definite, immediate, or automatic. Hollins need not register
as a sex offender until his release from prison. And it is not
certain that Hollins will be released to Arizona at the end of
his 270-month sentence or that he will remain there long
enough to trigger the registration requirement, so it is
UNITED STATES V. HOLLINS 9
possible that Hollins will not be subject to Arizona’s sex
offender restrictions. See 18 U.S.C. § 3624(d)(3) (prisoner
may be released and transported to “the place of the
prisoner’s conviction, to the prisoner’s bona fide residence
within the United States, or to such other place within the
United States as may be authorized by the Director”). As we
noted above, that Hollins is likely to live in Arizona after his
sentence does not render Arizona’s specific sex offender
restrictions a direct consequence of Hollins’ federal
conviction.3
Because each consequence Hollins identifies is
collateral, the district court did not err by failing to advise
him of them.
D. Effect of Padilla on the District Court’s Rule
11 Obligations
According to Hollins, Padilla v. Kentucky, 559 U.S. 356(2010), a Sixth Amendment ineffective assistance of counsel
case, radically changed the longstanding Rule 11 direct-
collateral consequences doctrine. He contends that Padilla
requires a court, under Rule 11, to advise a defendant about
the possible effects of pleading guilty discussed supra, and
that the failure to discuss these possibilities requires us to
invalidate his guilty plea. But, as we have held for more than
a decade, Padilla is not so sweeping.
In Padilla, the Supreme Court held that the Sixth
Amendment requires defense counsel to advise a client
3
Though not required to under Rule 11, the magistrate judge advised
Hollins that he would need to register as a sex offender “in accordance
with tribal, state, and federal law.” The district court had no duty to
advise him of the minutiae of state law that may apply to him in the
future.
10 UNITED STATES V. HOLLINS
whether a guilty plea carries a risk of deportation. Id. at 374.
In so holding, the Court repeatedly stressed that its decision
regarding the duties of counsel was based on the “unique
nature of deportation.” Id. at 365; see also id. (“We,
however, have never applied a distinction between direct and
collateral consequences to define the scope of
constitutionally ‘reasonable professional assistance [of
counsel]’ required under Strickland [v. Washington, 466
U.S. 668, 689 (1984)].”).
We analyzed Padilla’s impact on Rule 11 in United
States v. Delgado-Ramos, 635 F.3d 1237 (9th Cir. 2011) (per
curiam). Considering whether Padilla requires a court to
inform a defendant of adverse immigration consequences
before accepting a guilty plea, we held that “[w]hile
Padilla’s holding is directly applicable to our Sixth
Amendment analysis . . . it sheds no light on the obligations
a district court may have under Rule 11 and due process.”
Id. at 1241.4 And two years after we decided Delgado-
Ramos, the Supreme Court made clear that Padilla “did not
eschew the direct-collateral divide across the board,” but
only held that “the collateral versus direct distinction was ill-
suited to dispose of Padilla’s [Sixth Amendment] claim”
because of “the special nature of deportation.” Chaidez v.
United States, 568 U.S. 342, 355 (2013) (cleaned up).
4
See also Youngs, 687 F.3d at 62 (following Delgado-Ramos and
holding that Padilla did not implicate the court’s duties under the Fifth
Amendment or Rule 11 because they are more limited than those of
counsel under the Sixth Amendment); United States v. Nicholson, 676
F.3d 376, 381 n.3 (4th Cir. 2012) (noting that the Court in Padilla
“specifically declined to address ‘how to distinguish between direct and
collateral consequences’” (citation omitted)).
UNITED STATES V. HOLLINS 11
Hollins has not identified any intervening decision by
this court or the Supreme Court that has undermined our
reasoning in Delgado-Ramos, so we cannot ignore that
holding or our prior precedent relying on the direct-collateral
distinction. See Miller v. Gammie, 335 F.3d 889, 900 (9th
Cir. 2003) (en banc) (holding that a three-judge panel may
depart from circuit precedent only where a higher court
holding is “clearly irreconcilable”).
And even if we could disregard Delgado-Ramos’ clear
holding, we cannot ignore Padilla’s emphasis on the unique
nature of immigration consequences—that deportation is a
particularly severe penalty that flows virtually automatically
from conviction. Padilla, 559 U.S. at 365–66. Those
concerns do not apply to the consequences of which Hollins
complains. Geographic restrictions and community
notification are simply not on par with the severity of
deportation. Civil commitment, while comparatively more
severe, is not an automatic consequence of conviction; a sex
offense conviction is not itself sufficient to render a
defendant subject to commitment. See Youngs, 687 F.3d at
63 (rejecting an identical argument and finding that because
the government must choose to initiate commitment
proceedings and then meet its burden of proof, “the
likelihood of [the defendant’s] civil commitment is
uncertain, both at the time of his plea and at the completion
of his period of incarceration”).
III. Conclusion
We reaffirm that Rule 11 requires a court to inform a
defendant of the direct consequences of his guilty plea, but
not those that are merely collateral. See Delgado-Ramos,
635 F.3d at 1239. Padilla did not change this. See id. at
1241. We further hold that possible civil commitment,
12 UNITED STATES V. HOLLINS
geographic restrictions, and community notification were
collateral consequences of Hollins’ guilty plea to a sex
offense. Because the district court had no duty to inform
Hollins of these specific consequences, his plea was
knowing and voluntary. Thus, his appellate waiver is in
force, and we therefore dismiss his appeal.
APPEAL DISMISSED.