United States v. Roger Nepal

Case: 17-10228 Document: 00514532065 Page: 1 Date Filed: 06/27/2018
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 17-10228
Fifth Circuit
FILED
June 27, 2018
UNITED STATES OF AMERICA, Lyle W. Cayce
Clerk
Plaintiff-Appellee,
v.
ROGER NEPAL,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Texas
Before WIENER, GRAVES, and HO, Circuit Judges.
JAMES E. GRAVES, JR., Circuit Judge:
Following a plea agreement, Defendant Roger Nepal, who was born in
Nepal but later became a naturalized U.S. citizen, pleaded guilty to and was
convicted of a single count of violating 18 U.S.C. § 1425(a), which prohibits
knowingly procuring citizenship contrary to law. The factual resume accompa-
nying the plea agreement details how in both his Application for Naturalization
and his subsequent citizenship interview, Nepal falsely stated that he had no
children when, in fact, he did. The factual resume also states that had immigra-
tion officials known that Nepal had children, it would have led to the discovery
that Nepal did not properly and completely provide financial support to his son.
The district court accepted the plea agreement, convicted Nepal of violating Sec-
tion 1425(a) and, as part of his sentence, revoked his citizenship. Nepal appeals.
Case: 17-10228 Document: 00514532065 Page: 2 Date Filed: 06/27/2018
No. 17-10228
While the appeal was pending, the Supreme Court announced its decision
in Maslenjak v. United States, 582 U.S. —, 137 S. Ct. 1918 (2017), in which it
(1) clarified the Government’s burden of proof in a Section 1425(a) prosecution
and (2) held that qualification for citizenship, notwithstanding any materially
false statement, is a complete defense to prosecution. Nepal contends that Mas-
lenjak effected a change in the law such that the district court plainly erred in
accepting his guilty plea because, following Maslenjak, that plea is no longer sup-
ported by a sufficient factual basis. He also contends that he is entitled to invoke
the newly announced defense.
Both contentions lack merit. We affirm.
I
In 2015, a grand jury issued a three-count indictment against Nepal. 1 He
was charged with conspiracy to commit fraud in connection with immigration
documents, in violation of 18 U.S.C. §§ 371 & 1546(a) (Count One); fraud and
misuse of visas, permits, and other documents, in violation of 18 U.S.C. § 1546(a)
(Count Two); and unlawful procurement of naturalization, in violation of 18
U.S.C. § 1425(a) (Count Three). The statutory provision at issue in Count Three,
Section 1425(a), prohibits “knowingly procur[ing] or attempt[ing] to procure,
contrary to law, the naturalization of any person.” 18 U.S.C. § 1425(a). For pre-
sent purposes, the indictment advanced three relevant allegations. First, Nepal
filed a Form N-400 Application for Naturalization with the then-extant Immi-
gration and Naturalization Service in December 2001, falsely claiming, inter
alia, that he did not have children, when in fact he had four children—contrary
to 18 U.S.C. § 1015(a), which prohibits false statements “relating to . . . natural-
ization.” Second, Nepal lied in his July 2005 naturalization interview with the
1 Some charges were brought against two other defendants, as well, detailing a scheme
to fraudulently obtain citizenship on behalf of others. Those defendants entered guilty pleas
prior to trial and are irrelevant to this appeal.
2
Case: 17-10228 Document: 00514532065 Page: 3 Date Filed: 06/27/2018
No. 17-10228
Bureau of Citizenship and Immigration Services when he again denied having
any children—again contrary to 18 U.S.C. § 1015(a). And third, the production
of truthful information about Nepal’s children “would have led to the discovery
of facts relevant to the Application for Naturalization and his statutory ineligi-
bility for naturalization.”
The case went to trial in September 2016. After three days, Nepal agreed
to plead guilty to Count Three, and the Government agreed to dismiss the other
two counts. The parties prepared a plea agreement. In the factual resume ac-
companying that agreement, Nepal admitted that he lied by failing to list his
son, Ashwin Dahal, on his N-400 application and that he lied during his natu-
ralization interview by denying that he had any children. He further admitted
that “the production of truthful information” about his son “would have led to the
discovery of facts relevant to the Application for Naturalization and his statu-
tory ineligibility due to lacking the good moral character during the statutory
time period for naturalization.” Specifically on that point, Nepal admitted that
“it would have led to the discovery of the fact that he had not been properly and
completely providing financial support for Ashwin Dahal.” He admitted that this
course of conduct violated Section 1425(a).
At the change of plea hearing, Nepal acknowledged that he understood
the factual resume’s contents and that he signed the factual resume. He did not
object to the factual basis of his plea. The district court found that Nepal was
competent and capable of entering into an informed plea, and that his plea was
knowing and voluntary. The court accepted the plea agreement, pursuant to
Federal Rule of Criminal Procedure 11(c)(1)(C); convicted him of violating Sec-
tion 1425(a); sentenced him to the agreed-upon term of 366 days’ imprisonment;
ordered him to pay $200,000 restitution; and, pursuant to 8 U.S.C. § 1451, 2
2“When a person shall be convicted under section 1425 of Title 18 of knowingly procur-
ing naturalization in violation of law, the court in which such conviction is had shall thereupon
3
Case: 17-10228 Document: 00514532065 Page: 4 Date Filed: 06/27/2018
No. 17-10228
declared that “as of today . . . [Nepal’s] citizenship is revoked.” Nepal timely
appealed, and we have jurisdiction. See 28 U.S.C. § 1291; 18 U.S.C. § 3742(a).
II
“We review guilty pleas for compliance with Rule 11,” United States v.
Garcia-Paulin, 627 F.3d 127, 130 (5th Cir. 2010), a rule designed to “ensure that
a guilty plea is knowing and voluntary, by laying out the steps a trial judge must
take before accepting such a plea,” United States v. Vonn, 535 U.S. 55, 58 (2002).
“One such step is determining that a defendant’s guilty plea is supported by an
adequate factual basis.”3 United States v. Alvarado-Casas, 715 F.3d 945, 949 (5th
Cir. 2013). The district court makes this determination by following Rule 11(b)(3),
which instructs it to “make certain that the factual conduct admitted by the
defendant is sufficient as a matter of law to establish a violation of the statute
to which he entered his plea.” United States v. Trejo, 610 F.3d 308, 313 (5th Cir.
2010) (emphases in original). “[N]otwithstanding an unconditional plea of guilty,
we will reverse on direct appeal where the factual basis for the plea as shown of
record fails to establish an element of the offense of conviction.” United States v.
White, 258 F.3d 374, 380 (5th Cir. 2001).
To determine whether a factual basis for a plea exists, we must compare
“(1) the conduct to which the defendant admits with (2) the elements of the offense
charged in the indictment or information.” United States v. Marek, 238 F.3d 310,
315 (5th Cir. 2001) (en banc). “If sufficiently specific, an indictment or information
revoke, set aside, and declare void the final order admitting such person to citizenship, and
shall declare the certificate of naturalization of such person to be canceled.” 8 U.S.C. § 1451(e).
3 Nepal originally raised as a threshold issue the question whether we should enforce
the appeal waiver contained in his plea agreement to bar his appeal. But the Government con-
cedes, correctly, that the waiver does not bar Nepal from challenging the factual basis of his
plea. See United States v. Baymon, 312 F.3d 725, 727 (5th Cir. 2002) (“[E]ven if there is an un-
conditional plea of guilty or a waiver of appeal provision in a plea agreement, this Court has
the power to review if the factual basis for the plea fails to establish an element of the offense
which the defendant pled guilty to.”).
4
Case: 17-10228 Document: 00514532065 Page: 5 Date Filed: 06/27/2018
No. 17-10228
can be used as the sole source of the factual basis for a guilty plea.” United States
v. Hildenbrand, 527 F.3d 466, 475 (5th Cir. 2008) (quoting United States v. Adams,
961 F.2d 505, 509 (5th Cir. 1992)). Additionally, “[o]n plain error review, we [may]
take a wide look, examining ‘the entire record for facts supporting [the] guilty
plea’” and drawing reasonable inferences from those facts. United States v. Bar-
ton, 879 F.3d 595, 599 (5th Cir. 2018) (quoting Trejo, 610 F.3d at 317).
When the defendant does not object to the sufficiency of the factual basis
of his plea before the district court—instead raising for the first time on appeal
the question whether the undisputed factual basis is sufficient as a matter of
law to sustain his plea (as Nepal does here)—our review is restricted to plain
error. United States v. Broussard, 669 F.3d 537, 546 (5th Cir. 2012); see also
Fed. R. Crim. P. 52(b). 4 Success on plain error review requires a showing by the
defendant that a clear and obvious error affected his substantial rights. United
States v. Fairley, 880 F.3d 198, 206 (5th Cir. 2018). If the defendant makes this
showing, “it is well established that courts ‘should’ correct a forfeited plain error
that affects substantial rights ‘if the error seriously affects the fairness, integrity
or public reputation of judicial proceedings.’” Rosales-Mireles v. United States,
585 U.S. —, —, 138 S. Ct. 1897, 1906 (2018) (quoting United States v. Olano, 507
U.S. 725, 735 (1993)).
III
A
The Supreme Court decided Maslenjak v. United States, 582 U.S. —, 137
S. Ct. 1918 (2017), which interpreted Section 1425(a), while this appeal was
pending; it is now the controlling law. See Griffith v. Kentucky, 479 U.S. 314, 328
4 Nepal contends that our review should be de novo. But the principal case he cites to
support that contention, United States v. Humphrey, 287 F.3d 422, 443 (6th Cir. 2002), over-
ruled on other grounds by United States v. Leachman, 309 F.3d 377, 383 (6th Cir. 2002), has
never been relied on by any court for the proposition that de novo review, rather than plain
error, should apply in these circumstances. We will not rely on it, either.
5
Case: 17-10228 Document: 00514532065 Page: 6 Date Filed: 06/27/2018
No. 17-10228
(1987). Thus, resolution of the question whether the district court committed
error requires us to decide whether Nepal has established that Maslenjak altered
the Section 1425(a) analysis in such a way that the indictment and factual re-
sume no longer provide a sufficient factual basis for his plea.
Section 1425(a) provides that “[w]hoever knowingly procures or attempts
to procure, contrary to law, the naturalization of any person” commits an offense.
18 U.S.C. § 1425(a). 5 In Maslenjak, the Supreme Court adopted the prevailing
interpretation of Section 1425(a) that, in prosecutions arising from a defendant’s
making false statements to acquire citizenship, the Government must establish
some sort of causal relationship between the false statements and the acquisition
of citizenship. 6 137 S. Ct. at 1922–23. So now, “the proper causal inquiry under
§ 1425(a) is framed in objective terms: To decide whether a defendant acquired
citizenship by means of a lie, a jury must evaluate how knowledge of the real facts
would have affected a reasonable government official properly applying natural-
ization law.” Id. at 1928.
The Government can satisfy that causal inquiry using one of two theories.
The first theory is fairly straightforward: “[i]f the facts the defendant misrepre-
sented are themselves disqualifying”—for example, if the defendant misrepre-
sented her travel history to circumvent the requirement that an applicant be
5 Our sole precedential Section 1425(a) decision, United States v. Colwell, 764 F.2d 1070
(5th Cir. 1985), involved review of the conviction of a U.S. citizen who made false statements
to obtain citizenship for others, namely, by participating in preparing false birth documents
for Mexican babies to facilitate their adoption in the United States by American families. We
have never before reviewed the conviction of a non-citizen applicant who unlawfully procured
his own citizenship.
6 See United States v. Munyenyezi, 781 F.3d 532, 536 (1st Cir. 2015); United States v.
Latchin, 554 F.3d 709, 712–15 (7th Cir. 2009); United States v. Alferahin, 433 F.3d 1148, 1154–
56 (9th Cir. 2006); United States v. Aladekoba, 61 F. App’x 27, 28 (4th Cir. 2003). The Sixth
Circuit had interpreted the statute to mean that the Government need not prove that a defend-
ant’s false statements were material to, or influenced, the decision to approve her citizenship
application. As long as a defendant made a false statement—on any subject—during the natu-
ralization process and later procured naturalization, then she violated Section 1425(a). See
United States v. Maslenjak, 821 F.3d 675, 682–93 (6th Cir. 2016), vacated, 137 S. Ct. 1918.
6
Case: 17-10228 Document: 00514532065 Page: 7 Date Filed: 06/27/2018
No. 17-10228
physically present in the United States for more than half of the five-year pe-
riod preceding her application, or falsely denies being convicted of an aggravated
felony to circumvent the good moral character requirement—then “there is an
obvious causal link between the defendant’s lie and her procurement of citizen-
ship.” Id. In these circumstances, the inquiry is satisfied because “her lie must
have played a role in her naturalization.” Id. at 1928–29.
The Supreme Court characterizes the second theory as an “investigation-
based theory,” reasoning that “even if the true facts lying behind a false state-
ment would not ‘in and of themselves justify denial of citizenship,’ they could
have ‘led to the discovery of other facts which would’ do so.” Id. at 1929 (quoting
Chaunt v. United States, 364 U.S. 350, 352–53 (1960)); see also id. (“[A] person
whose lies throw investigators off a trail leading to disqualifying facts gets her
citizenship by means of those lies—no less than if she had denied the damning
facts at the very end of the trail.”). This theory requires its own two-part show-
ing. First, “the Government has to prove that the misrepresented fact was suf-
ficiently relevant to one or another naturalization criterion that it would have
prompted reasonable officials, ‘seeking only evidence concerning citizenship
qualifications,’ to undertake further investigation.” Id. (quoting Kungys v. United
States, 485 U.S. 759, 774 n.9 (1988) (opinion of Scalia, J.)). Second, the Govern-
ment must “establish that the investigation ‘would predictably have disclosed’
some legal disqualification.” Id. (quoting Kungys, 485 U.S. at 774). If it does, a
conviction can obtain.
But whichever the theory, if the available evidence indicates that the
defendant actually was qualified for the citizenship he obtained, that “quali-
fication for citizenship is a complete defense to a prosecution brought under
§ 1425(a).” Id. at 1929–30. In other words, despite the Government’s success un-
der either the first or second causal theories, if the applicant shows that he was
7
Case: 17-10228 Document: 00514532065 Page: 8 Date Filed: 06/27/2018
No. 17-10228
qualified to become a U.S. citizen, notwithstanding the false statement, no con-
viction can obtain. Id. at 1931.
The false statement we concern ourselves with here is Nepal’s statement
that he had no children. Having children does not facially disqualify Nepal from
citizenship, see United States v. Haroon, 874 F.3d 479, 484 (6th Cir. 2017) (“Di-
vorcees and parents may apply for citizenship.”), cert. denied, 584 U.S. —, 138
S. Ct. 1576 (2018), so the Government must rely on the investigation-based the-
ory. We conclude that the indictment and factual resume together satisfy the
Government’s Maslenjak burden on both prongs of this theory. 7
We look initially at whether Nepal’s misrepresentations concealing his
fatherhood are “sufficiently relevant to one or another naturalization criterion.”
Id. at 1929. They are. The Immigration and Nationality Act provides that “[n]o
person . . . shall be naturalized unless such applicant . . . has been and still is
a person of good moral character” during the statutorily prescribed period. 8
U.S.C. § 1427(a)(3). 8 The applicant bears the burden of demonstrating his good
moral character. Id. § 1427(e). Section 101 of the INA provides a nonexhaustive
list of conditions that, standing alone, foreclose an applicant’s demonstration of
7 We are cognizant that we are looking backward at a forward-looking analysis. We must
obscure the hindsight granted to us by Nepal’s plea in order to put ourselves in the position of
a reasonable immigration official learning of this information for the first time. This exercise
prevents us from reaching the results-based conclusion that because officials did discover a
disqualification then the Government has necessarily proven that a truthful disclosure (1) was
relevant to a naturalization criterion, (2) would have prompted a reasonable official to inves-
tigate, and (3) would predictably have led to disclosure of a disqualification.
8 When an applicant’s good moral character is in question, the statutorily prescribed
period is practically boundless. See 8 C.F.R. § 316.10(a)(2) (“[USCIS] is not limited to reviewing
the applicant’s conduct during the five years immediately preceding the filing of the applica-
tion, but may take into consideration, as a basis for its determination, the applicant’s conduct
and acts at any time prior to that period, if the conduct of the applicant during the statutory
period does not reflect that there has been reform of character from an earlier period or if the
earlier conduct and acts appear relevant to a determination of the applicant’s present moral
character.”).
8
Case: 17-10228 Document: 00514532065 Page: 9 Date Filed: 06/27/2018
No. 17-10228
good moral character. See id. § 1101(f). Department of Homeland Security reg-
ulations offer a more exhaustive list of conditions, and an applicant “shall be
found to lack good moral character” if he meets any of them. 8 C.F.R. § 316.10(b)
(emphasis added). Though neither Nepal’s indictment nor the factual resume
cites a specific provision or regulation, their texts suggest reliance on (and the
Government confirms as much in its brief) the regulation providing that an
applicant “shall be found to lack good moral character, if, during the statutory
period, the applicant [w]illfully failed or refused to support dependents.” Id.
§ 316.10(b)(3)(i).
Having identified the relevant criterion, we proceed. To determine whether
the Government would satisfy its burden under the investigatory theory’s first
prong, Maslenjak instructs us to ask whether a reasonable official, seeking only
evidence concerning citizenship qualifications, would undertake further inves-
tigation were she to learn that an applicant had children. Considering 8 C.F.R.
§ 316.10(b)(3)(i), and how violating that regulation affects an applicant’s quali-
fication, we think the answer to that question is undoubtedly yes.
Turning to the second prong, though Maslenjak rejected application of a
strict causal requirement that would “demand[] proof positive that a disqualify-
ing fact would have been found,” the Court nonetheless adopted a “demanding
but still practical causal standard” under which the Government must offer suf-
ficient proof to “establish that the investigation ‘would predictably have dis-
closed’ some legal disqualification.” 137 S. Ct. at 1929 (quoting Kungys, 485 U.S.
at 774). There is sufficient proof here that an investigation would predictably
disclose a legal disqualification if it exists. This is common sense. If an appli-
cant discloses that he has children, the investigatory questions that would follow
that disclosure—bearing in mind that a willful failure or refusal to financially
support any dependent child is a legal disqualification on good moral character
grounds—practically write themselves: What are their names? How old are they?
9
Case: 17-10228 Document: 00514532065 Page: 10 Date Filed: 06/27/2018
No. 17-10228
Where do they live? Are you responsible for supporting them? In what amounts?
Do you consistently meet your support obligations? Any investigation seeking
answers to these questions would predictably reveal if an applicant who had
children had willfully failed or refused to provide financial support to those chil-
dren—a legal disqualification.
We therefore conclude that, even post-Maslenjak, the indictment and fac-
tual resume provide a sufficient factual basis for Nepal’s plea and for all statutory
elements of Section 1425(a), the offense of conviction.
B
Alternatively, Nepal argues that he should be entitled to invoke the de-
fense to a Section 1425(a) prosecution announced in Maslenjak. 9 The Supreme
Court explained that because it has “never read a statute to strip citizenship from
someone who met the legal criteria for acquiring it,” the statute should not be
used as “a tool for denaturalizing people who, the available evidence indicates,
were actually qualified for the citizenship they obtained.” Maslenjak, 137 S. Ct.
at 1930. On this basis, it crafted the defense: “Whatever the Government shows
with respect to a thwarted investigation, qualification for citizenship is a com-
plete defense to a prosecution brought under § 1425(a).” Id. Put differently, the
defense is available only to a defendant who shows, despite the Government’s
satisfying its Section 1425(a) burden, that no fact has been found that disquali-
fies him from citizenship.
Even if we assume that the district court’s acceptance of the plea—without
permitting Nepal the opportunity to assert the affirmative defense—was error,
9 The Government contends that, despite its concession that Nepal’s appeal waiver did
not bar him from challenging the factual basis of his plea, see supra note 3, it should still be
able to enforce the waiver against Nepal’s assertion of entitlement to the affirmative defense.
We decline to address the issue whether a waiver bars our consideration of an appeal brought
under these circumstances. Instead, we assume, without deciding, that it does not.
10
Case: 17-10228 Document: 00514532065 Page: 11 Date Filed: 06/27/2018
No. 17-10228
and that the error was plain, Nepal has not shown that error affected his sub-
stantial rights. To satisfy this third prong, a defendant “must ‘show a reasonable
probability that, but for the error,’ the outcome of the proceeding would have
been different.” Molina-Martinez v. United States, 578 U.S. —, —, 136 S. Ct.
1338, 1343 (2016) (quoting United States v. Dominguez Benitez, 542 U.S. 74, 76
(2004)), i.e., that “he would not have entered the plea,” United States v. London,
568 F.3d 553, 558 (5th Cir. 2009) (quoting United States v. Castro-Trevino, 464
F.3d 536, 541 (5th Cir. 2006)). We “may consult the whole record when consid-
ering the effect of any error on substantial rights.” Vonn, 535 U.S. at 59.
Nepal argues that his substantial rights were affected because Maslenjak’s
establishment of the new defense made the acceptance of his guilty plea a struc-
tural error. “The purpose of the structural error doctrine is to ensure insistence
on certain basic, constitutional guarantees that should define the framework of
any criminal trial.” Weaver v. Massachusetts, 582 U.S. —, —, 137 S. Ct. 1899,
1907 (2017). “Thus, the defining feature of a structural error is that it ‘affect[s]
the framework within which the trial proceeds,’ rather than being ‘simply an
error in the trial process itself.’” Id. (quoting Arizona v. Fulminante, 499 U.S.
279, 310 (1991)). In Weaver, the Supreme Court laid out three broad categories
of structural error: first, “if the right at issue is not designed to protect the de-
fendant from erroneous conviction but instead protects some other interest,” id.
at 1908 (citing McKaskie v. Wiggins, 465 U.S. 168 (1984) (deprivation of the right
to self-representation at trial)); second, “if the effects of the error are simply too
hard to measure,” id. (citing Vasquez v. Hillery, 474 U.S. 254 (1986) (unlawful
exclusion of grand jurors of defendant’s race)); and third, “if the error always
results in fundamental unfairness,” id. (citing Gideon v. Wainwright, 372 U.S.
335 (1963) (total deprivation of counsel), and Sullivan v. Louisiana, 508 U.S. 275
(1993) (erroneous reasonable doubt instruction)). However, “[a]n error can count
as structural even if the error does not lead to fundamental unfairness in every
11
Case: 17-10228 Document: 00514532065 Page: 12 Date Filed: 06/27/2018
No. 17-10228
case.” Id.
The announcement of a new defense, though, does not fall into any of these
categories, nor is the error in Nepal’s case on the same level as the errors targeted
in the Court’s structural error jurisprudence. Indeed, announcement of a new
defense is a far cry from deprivation of counsel, deprivation of the right to self-
representation, or unlawful exclusion of grand jurors of the defendant’s race.
Furthermore, and perhaps more importantly, none of the Supreme Court’s struc-
tural error cases are direct appeals from judgments of conviction within the fed-
eral system like this case; they are either appeals from state courts which had
considered the error under their own rules or federal habeas challenges to state
convictions. See Johnson v. United States, 520 U.S. 461, 466 (1997) (rejecting
federal defendant’s argument that the error in her trial was structural: “the se-
riousness of the error claimed does not remove consideration of it from the ambit
of” Rule 52(b), “which by its terms governs direct appeals from judgments of con-
viction in the federal system”; creating an exception to Rule 52(b) to accommo-
date the error of which defendant complained would be “[e]ven less appropriate
than an unwarranted expansion of the Rule”). The error in this case is not struc-
tural error.
Unfortunately for Nepal, he puts nearly all his substantial-rights eggs in
the structural-error basket. The only other possible argument we could gener-
ously glean from his briefing—a passing analogy to our decision in United States
v. Knowles, 29 F.3d 947 (5th Cir. 1994)—is unavailing. There, the defendant was
convicted of possession of a firearm in a school zone in violation of the Gun Free
School Zones Act. While the case was pending on direct appeal, we decided United
States v. Lopez, 2 F.3d 1342 (5th Cir. 1993), in which we held that the Gun Free
School Zones Act was an unconstitutional exercise of Congress’s power under
12
Case: 17-10228 Document: 00514532065 Page: 13 Date Filed: 06/27/2018
No. 17-10228
the Commerce Clause. 10 Because Knowles did not raise any challenge to the con-
stitutionality of the Gun Free School Zones Act in the district court, we reviewed
his conviction for plain error. When we reached the substantial rights prong of
the analysis, we explained, “It is . . . evident that this error affected the outcome
of the proceedings below. Had the Lopez argument been raised in the district
court, it should have resulted in the dismissal of the Gun Free School Zones Act
count from Knowles’s indictment.” Knowles, 29 F.3d at 951. We did not fault
Knowles for not raising the argument prior to pleading guilty, because during
the nearly sixty years before Lopez was decided, the Supreme Court had declined
to declare unconstitutional any federal statute promulgated under the Commerce
Clause. 11
There was a direct correlation between the decision in Lopez and the po-
tential change in outcome in Knowles: the statute under which Knowles was
convicted was later declared unconstitutional. But there is no similar correlation
between the decision in Maslenjak and the potential change in outcome here.
The mere creation of a defense that a defendant may or may not be able to satisfy
under certain circumstances is not comparable to a declaration that a statute of
conviction is unconstitutional. Beyond that, we are unconvinced that the out-
come in Nepal’s case would have been any different because, though the affirm-
ative defense did not exist in this Circuit prior to Maslenjak, the critical disqual-
ifying regulation, 8 C.F.R. § 316.10(b)(3)(i), did. And Maslenjak did not alter it.
By agreeing to the factual basis of his plea, Nepal essentially conceded that the
Government could prove that he violated this regulation because he willfully
10 That decision would later be affirmed by the Supreme Court after Knowles was de-
cided. See United States v. Lopez, 514 U.S. 549 (1995).
11See, e.g., Hodel v. Va. Surface Min. & Reclamation Ass’n, 452 U.S. 264 (1981); Perez
v. United States, 402 U.S. 146 (1971); Katzenbach v. McClung, 379 U.S. 294 (1964); Heart of
Atlanta Motel, Inc. v. United States, 379 U.S. 241 (1964); Wickard v. Filburn, 317 U.S. 111
(1942); United States v. Darby, 312 U.S. 100 (1941); United States v. Carolene Prods. Co., 304
U.S. 144 (1938); NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937).
13
Case: 17-10228 Document: 00514532065 Page: 14 Date Filed: 06/27/2018
No. 17-10228
failed or refused to support his son.
We conclude that Nepal has not shown a reasonable probability, based on
the evidence and testimony in the record, that had he known of the defense, he
would not have pleaded guilty. See London, 568 F.3d at 558; Castro-Trevino, 464
F.3d at 541. Failure to show an effect on his substantial rights is fatal to his claim
of plain error.
* * *
The Defendant’s conviction and sentence are AFFIRMED.
14