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Docket Number

No. 22-2324

Advocates

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.

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—Title 28 APPENDIXFEDERAL RULES OF APPELLATE PROCEDURE — Citing Judicial Dispositions
Judiciary And Judicial Procedure — Habeas Corpus — Particular Proceedings — Federal Custody; Remedies On Motion Attacking Sentence
Crimes And Criminal Procedure — Mail Fraud And Other Fraud Offenses — Crimes — Fraud By Wire, Radio, Or Television
Crimes And Criminal Procedure — Mail Fraud And Other Fraud Offenses — Crimes — Bank Fraud
Crimes And Criminal Procedure — Fraud And False Statements — Crimes — Aggravated Identity Theft

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Smart Summary

Summary Order — De Goorte v. United States (No. 22-2324), 2d Cir., Nov. 6, 2023

Factual and Procedural Background

In August 2019, Armin De Goorte (formerly Osama Ahmed Abdellatif El Mokadem), an Egyptian national living in the United States with an expired visa, was arrested on a government complaint charging wire fraud (18 U.S.C. § 1343), bank fraud (18 U.S.C. § 1344), and two counts of aggravated identity theft (18 U.S.C. § 1028A(a)(1)). After initial representation by a public defender, De Goorte retained attorney James Schiff. In January 2020 the Government obtained a superseding indictment adding an additional bank fraud count.

In February 2020, De Goorte pleaded guilty pursuant to a plea agreement to two counts of wire fraud and two counts of bank fraud. The plea agreement and the district court's plea allocution informed De Goorte that, as a non-citizen, his guilty plea would very likely make his removal presumptively mandatory and that he was at risk of removal or other adverse immigration consequences. During the hearing De Goorte stated that he understood the immigration consequences and that he had discussed them with his lawyer.

In March 2021, the district court sentenced De Goorte to 24 months' imprisonment followed by three years of supervised release. In July 2020, De Goorte married Heather Dickerson (a U.S. citizen). In June 2021 De Goorte learned that he would be housed at a facility for non-citizens convicted of federal crimes and that he would be automatically deported after serving his term.

De Goorte filed a motion under 28 U.S.C. § 2255 to vacate his conviction, alleging that attorney Schiff provided unreasonable and ineffective assistance with respect to immigration consequences of the plea — specifically, that Schiff downplayed or failed adequately to advise him about deportation and did not sufficiently advise him to consult an immigration attorney.

The district court held an evidentiary hearing (September 2023) and issued an opinion and order denying the § 2255 motion (De Goorte v. United States, 2022 WL 4364880 (S.D.N.Y. Sept. 20, 2022)). The district court found Schiff's testimony credible and found the testimonies of De Goorte and Dickerson not credible or not probative. The court concluded Schiff's representation was reasonable and that De Goorte had not demonstrated prejudice. De Goorte appealed, and the Second Circuit affirmed the denial of the § 2255 motion.

Legal Issues Presented

Whether De Goorte's counsel provided constitutionally ineffective assistance of counsel under Strickland v. Washington by failing to advise him adequately about the immigration consequences (deportation) of his guilty plea.
Assuming deficient performance, whether De Goorte demonstrated prejudice — i.e., 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 standard for guilty pleas).

Arguments of the Parties

De Goorte's Arguments (Appellant)

Schiff gave unreasonable and ineffective legal advice about immigration consequences, including characterizing the immigration language in the plea agreement as "standard" and not suggesting consultation with an immigration attorney.
De Goorte claimed he would not have pleaded guilty had he known the plea would require deportation; he contends statements such as the court's description that removal was "presumptively mandatory" were not understood by him to mean he faced mandatory deportation.
Schiff used language like "might" avoid deportation (e.g., by marriage), which De Goorte contends misled him and is akin to the deficient advice in Padilla v. Kentucky.

Schiff and Government's Arguments / District Court Findings (Respondent)

Schiff stated he advised De Goorte early to consult an immigration attorney, warned that deportation was very likely if convicted, reviewed the plea agreement's immigration language with De Goorte on two separate occasions, and never advised him to ignore the immigration warnings.
Schiff indicated he did not initially observe concern in De Goorte about immigration consequences; he testified that De Goorte's main concern was avoiding incarceration, and that marriage or non-incarceratory sentencing were plausible ways to avoid deportation.
The district court credited Schiff's testimony, found De Goorte's and Dickerson's testimonies not credible or insufficiently probative, and concluded Schiff's performance was reasonable and did not prejudice De Goorte.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Strickland v. Washington, 466 U.S. 668 (1984)	Two-pronged test for ineffective assistance of counsel: (1) deficient performance; (2) prejudice to the defendant.	The court applied Strickland as the governing framework for assessing De Goorte's ineffective-assistance claim, evaluating both counsel's reasonableness and whether any deficiency caused prejudice.
Hill v. Lockhart, 474 U.S. 52 (1985)	Prejudice standard for ineffective assistance in the guilty-plea context: 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.	The court applied Hill to assess whether De Goorte had shown a reasonable probability he would have proceeded to trial absent counsel's alleged deficiencies.
Padilla v. Kentucky, 559 U.S. 356 (2010)	Counsel's failure to give correct advice about deportation can be constitutionally deficient (Padilla involved an attorney telling a client he did not need to worry about immigration consequences when deportation was actually presumptively mandatory).	The court considered Padilla but distinguished the record here: Schiff did not give affirmative incorrect advice and expressly warned De Goorte that deportation was very likely and advised consultation with immigration counsel.
United States v. Venturella, 391 F.3d 120 (2d Cir. 2004)	The presumption that counsel's conduct falls within the wide range of reasonable professional assistance.	The court invoked the Venturella presumption when evaluating Schiff's performance under Strickland, accepting the district court's credibility determination and concluding counsel's conduct was within the range of reasonable assistance.
Sapia v. United States, 433 F.3d 212 (2d Cir. 2005)	Standard of review on appeal from denial of § 2255 motion: review conclusions of law de novo and accept district court factual findings unless clearly erroneous.	The court applied Sapia to frame the appellate review: legal conclusions de novo, district court factual findings (including credibility determinations) accepted unless clearly erroneous.
United States v. Gahagen, 44 F.4th 99 (2d Cir. 2022)	Reiterates Strickland's two-pronged ineffective-assistance test (citing Strickland).	The court cited Gahagen for the proposition that the Strickland standard governs ineffective-assistance claims in this Circuit and used it as part of the governing legal framework.
Doe v. United States, 915 F.3d 905 (2d Cir. 2019)	Provides that a defendant's background, history in the United States, family circumstances, and employment can constitute circumstantial evidence about whether the defendant placed particular emphasis on immigration consequences when pleading guilty.	The court used Doe to evaluate whether De Goorte placed high value on avoiding deportation (prejudice prong), considering his family ties, time in the U.S., employment history, and marital status.
De Goorte v. United States, 2022 WL 4364880 (S.D.N.Y. Sept. 20, 2022)	District court opinion resolving the § 2255 motion, including credibility findings and conclusions about counsel's reasonableness and lack of prejudice.	The Second Circuit relied on the district court's credibility determinations and factual findings (crediting Schiff, discrediting De Goorte and Dickerson) when affirming the § 2255 denial; the appellate court accepted those findings absent clear error.

Court's Reasoning and Analysis

The Second Circuit structured its analysis under the familiar Strickland framework and the appellate standard for § 2255 denials. It first explained the applicable standards: appellate review is de novo on legal questions and deferential to district court factual findings (Sapia); Strickland governs claims of ineffective assistance (as reiterated in Gahagen); the Hill standard governs prejudice where a guilty plea is involved; counsel's performance is presumed within a wide range of reasonable assistance (Venturella); and Padilla sets the context for ineffective assistance claims based on immigration advice.

I. Reasonableness of Counsel's Representation: The court examined whether Schiff's performance fell below an objective standard. It compared the facts here to Padilla and explained why they differ: unlike Padilla (where counsel told the defendant he did not need to worry about immigration consequences), Schiff warned De Goorte that deportation was "very likely," advised him to consult an immigration attorney, and reviewed the immigration language of the plea agreement with De Goorte twice. The district court had credited Schiff's testimony on these points. The appellate court emphasized that counsel is not required to use any particular formulation of words (e.g., "presumptively mandatory") to satisfy the Sixth Amendment and that using more accessible terms such as "likely" did not render Schiff's performance unreasonable. Given the district court's credibility determinations and the record, the court concluded Schiff's overall strategy and advice were "eminently reasonable" and therefore did not fall short of Strickland's first prong.

II. Prejudice: Under Hill, the court assessed whether De Goorte demonstrated a reasonable probability that, but for any alleged ineffective advice, he would have rejected the plea and gone to trial. The court considered circumstantial evidence (per Doe) about whether immigration consequences were De Goorte's primary concern: though he had lived in the United States for nearly fifteen years, he had few close ties or relatives in the U.S., lacked a legal employment history, was attempting to start a business, and his closest U.S. connection (Dickerson) arose after charges were filed and she married him on counsel's advice. The district court credited Schiff's testimony that De Goorte's primary concern was avoiding incarceration rather than deportation. The appellate court found no clear error in that conclusion and therefore concluded De Goorte did not establish prejudice; the record supported the district court's finding that he would have taken the plea even if counsel's immigration-related advice had been deficient.

The court briefly addressed and rejected other arguments raised by De Goorte as unavailing, relying on the district court's factual findings and the applicable legal standards.

Holding and Implications

Holding: The Second Circuit AFFIRMED the district court's order denying De Goorte's motion to vacate his conviction under 28 U.S.C. § 2255.

Implications:

The direct effect is that De Goorte's § 2255 claim was denied and his conviction and sentence remain intact.
The court's decision rests on the district court's factual findings (notably credibility determinations) and the application of Strickland/Hill standards; the appellate court accepted those findings as not clearly erroneous.
The opinion distinguishes this case from Padilla where counsel gave incorrect assurances about deportation; here, counsel warned of likely deportation and advised consultation with an immigration attorney. The court emphasized that counsel need not use specific terminology ("in haec verba") to satisfy the Sixth Amendment.
Because this is a summary order, it does not have precedential effect (as noted in the opinion), and the court reiterated the non-precedential status of summary orders filed on or after January 1, 2007.

Note: This summary is based exclusively on the text of the published summary order provided and does not add or infer facts beyond that opinion.

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Armin De Goorte, FKA Osama Ahmed Abdellatif El Mokadem, Petitioner - Appellant, v. United States of America, Respondent - Appellee.

UNPUBLISHED OPINION

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 6^th day of November, two thousand twenty-three.

Appeal from an order of the United States District Court for the Southern District of New York (Lewis J. Liman, Judge).

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.

PRESENT: JOSE A. CABRANES, DENNY CHIN, MARIA ARAUJO KAHN, Circuit Judges.

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.

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 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 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, held an evidentiary hearing on the Section 2255 motion. De Goorte, Schiff, and Dickerson all 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. 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.

On May 5, 2022, this case was reassigned to Judge Liman following Judge Nathan's elevation to this Court.

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.

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).

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 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 4364880 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 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.

De Goorte v. United States