United States v. Gilma Ruiz

FILED
NOT FOR PUBLICATION DEC 06 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 12-50474
Plaintiff - Appellee, D.C. No. 8:08-cr-00144-DOC-1
v.
MEMORANDUM*
GILMA RUIZ, AKA Gilam Ruiz
Hernandez, AKA Gilma B. Ruiz
Hernandez, AKA Gilma Beatriz Ruiz
Hernandez, AKA Gilma B. Ruiz, AKA
Gilma Beatriz Ruiz,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
David O. Carter, District Judge, Presiding
Argued and Submitted November 7, 2013
Pasadena, California
Before: GOODWIN, FISHER and CLIFTON, Circuit Judges.
Gilma Ruiz appeals her conviction following the district court’s denial of her
motion to withdraw her guilty plea under Federal Rule of Criminal Procedure
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
11(d)(2)(B). Reviewing for an abuse of discretion, we vacate the plea and the
conviction and remand for further proceedings consistent with this decision.
Under Rule 11(d)(2)(B), a defendant need show only a “fair and just reason”
for withdrawing a plea. Ruiz was required to show (1) that she received improper
legal advice and (2) that the proper legal advice of which she was deprived could
have at least plausibly motivated a reasonable person in her position not to have
pled guilty. See United States v. Bonilla, 637 F.3d 980, 983 (9th Cir. 2011). Ruiz
has satisfied the second prong because she has longstanding ties to the United
States, having arrived here at the age of seven, having lived here for 30 years and
having two U.S.-born children. She plausibly contends that, if she had known the
full extent of the immigration consequences of pleading guilty, she would have
attempted to negotiate a different plea that would not have mandated deportation.
See United States v. Kwan, 407 F.3d 1005, 1017 (9th Cir. 2005) (“Kwan explains
that, had he been made aware of the deportation consequences of his conviction, he
would have explored the option of renegotiating his plea agreement.”), abrogated
on other grounds by Padilla v. Kentucky, 559 U.S. 356 (2010).
As for the first prong, we are troubled by Ruiz’s apparent lack of candor in
the declaration she filed in support of her motion to withdraw her plea, where she
said she “had no idea that I might get deported.” That assertion is contradicted by
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the 2009 letter she sent to immigration officials, in which she acknowledged that
she had been advised by her lawyer that she “might face deportation.” The district
court, however, did not deny Ruiz’s motion on the ground that she was not
credible. Rather, the court denied the motion on the ground that Ruiz had received
adequate legal advice. It was legal error for the court to justify its conclusion by
reasoning that the deportation consequences of Ruiz’s plea were unclear—when it
was actually virtually certain that Ruiz will get deported given her plea—and that
the only advice Ruiz was thus entitled to receive was advice of a mere possibility
of deportation. Given the aggravated felony nature of the offense Ruiz pled to, our
interpretation of Padilla required that Ruiz be informed not that she might face
deportation, but instead that her deportation was a virtual certainty. See Bonilla,
637 F.3d at 984 (“A criminal defendant who faces almost certain deportation is
entitled to know more than that it is possible that a guilty plea could lead to
removal; he is entitled to know that it is a virtual certainty.” (citing Padilla, 559
U.S. at 369)).
The district court’s legal error requires us to vacate the plea and conviction.
However, we are unable to ascertain from the record whether Ruiz has met her
burden of showing that she should be allowed to withdraw her plea, given that the
only support for her assertion that she was not advised of the virtual certainty of
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her deportation was a declaration that was directly contradicted by her own letter to
immigration officials. The district court is free to make this determination in the
first instance.
We vacate the plea and conviction and remand for further proceedings
consistent with this decision. See Bonilla, 637 F.3d at 986.
VACATED AND REMANDED.
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