United States District Court, D. Maryland
THEODORE D. CHUANG, UNITED STATES DISTRICT JUDGE.
April 17, 2018, Defendant Sheku Deen Yansane pleaded guilty
to one count of Possession of Marijuana with Intent to
Distribute, in violation of21 U.S.C. S 841(a)(1), and one of
count of Possession of a Firearm by a Convicted Felon, in
violation of 18 U.S.C. § 922(g)(1).
After Yansane and his counsel reviewed the Presentence
Investigation Report ("PSR") and learned, to their
surprise, that Yansane is not a United States citizen,
Yansane moved to withdraw his guilty plea. The Court held a
hearing on the Motion to Withdraw Guilty Plea on January 23,
2019. For the reasons set forth below, the Motion is granted.
following facts are undisputed. Yansane was born in Sierra
Leone in 1983. When Yansane was six years old, he and his
family moved to the United States. Specifically, in October
1989, Yansane, traveling with his mother and brother, was
lawfully admitted into the United States on a nonimmigrant
B-2 visa which expired in April 1990 when Yansane was still
six years old. Nevertheless, since 1989, Yansane has lived
his entire life in the United States, has never visited
Sierra Leone, and has no meaningful ties to that country.
Both of his parents are now United States citizens, and,
prior to reviewing the PSR, Yansane always believed that he
was a United States citizen.
there was some confusion between Yansaness parents, who
divorced in the 1990s when Yansane was still a child, over
submission of a citizenship application on behalf of Yansane.
At the time of her meeting with the United States Probation
Officer as part of the presentence investigation, Yansaness
mother also believed Yansane to be a United States citizen
and thought that his father, who was sporadically involved in
Yansaness upbringing, had taken care of the citizenship
application process for Yansane. However, a review of
immigration records prompted by the presentence investigation
revealed no documentation of any citizenship application
submitted on behalf of Yansane by his father. Over the past
20 years, Yansane has been convicted of multiple of crimes in
Maryland state courts and the Superior Court of the District
of Columbia, but, throughout all of those proceeding,, no
court or law enforcement agency, state or federal, has ever
determined that Yansane is not a United States citizen or
notified him that he might face deportation for his crimes.
August 9, 2017, Yansane was charged in a two-count Indictment
with Possession of Marijuana with Intent to Distribute, in
violation of 21 U.S.C. S 841(a)(1), and Possession of a
Firearm by a Convicted Felon, in violation of 18 U.S.C. S
922(g)(1.. At Yansane's initial appearance on August 29,
2017, an attorney from the Office of the Federal Public
Defender was appointed to represent Yansane. Yansane advised
his counsel that he was not born in the United States but
that he was a United States citizen. The Government and the
United States Probation and Pretrial Services Office also
believed that Yansane was a United States citizen.
Government and Yansane's counsel then engaged in plea
negotiations and jointly requested three extensions of the
pre-trial motions deadline to allow time for their
discussions. On March 15, 2018, the parties executed a plea
agreement. Among the provisions of the plea agreement was the
By pleading guilty, the Defendant will be giving up certain
valuable civil rights and may be subject to deportation or
other loss of immigration status. The Defendant recognizes
that if he is not a citizen of the United States, pleading
guilty may have consequences with respect to his immigration
status. Under federal law, convictions for a broad range of
crimes can lead to adverse immigration [consequences],
including automatic removal from the United States. Removal
and other immigration consequences are the subject of a
separate proceeding, however, and the Defendant understands
that no one, including his attorney or the Court, can predict
with certainty the effect of a conviction on immigration
status. Defendant nevertheless affirms that he wants to plead
guilty regardless of any potential immigration consequence..
Plea Agreement~ 4(h), ECF No. 47.
Court then held a guilty plea hearing under Federal Rule of
Criminal Procedure 11 on April 17, 2018. During the hearing,
the Court asked Yansane if he was a United States citizen,
and Yansane stated that he was. The Court also advised
THE COURT: I know you stated you are a U.S, citizen, but I
should tell you that if someone is not a U.S. citizen, that
person, by pleading guilty could have-there could be an
impact on that person's residency or status with
immigration authorities, including that it may provide a
basis for deportation or exclusion or may prevent someone
from becoming a U.S. citizen. Do you understand that?
THE DEFENDANT: I do.
Plea Hrg. Tr. at 16, ECF No. 68. The Court accepted
Yansane's plea of guilty to both counts of the Indictment
and issued an expedited sentencing order, setting sentencing
for June 11, 2018.
24, 2018, the probation officer issued the PSR, which, as
discussed above, advised Yansane, his counsel, and the
Government for the first time that Yansane is not actually a
United States citizen, he does not have legal status in the
United States, and a U.S. Immigration and Customs Enforcement
detainer was forthcoming. After promptly visiting Yansane and
showing him the PSR, Yansane's counsel filed a Consent
Motion to Continue Sentencing on May 29, 2018, in which he
stated that the PSR "contained an unexpected and
potentially very serious assertion" regarding
Yansane's history which would "require
investigation, including obtaining records." Consent
Mot. Continue at 1, ECF No. 51. The Court granted the motion
and continued the sentencing hearing.
21, 208,, Yansane's counsel filed the pending Motion to
Withdraw Guilty Plea and a Motion to Withdraw as Counsel,
noting a conflict of interest based upon Yansane's likely
assertion that he did not have "the close assistance of
competent counsel" in entering his plea. Mot. Withdraw
Plea at 1, ECF No. 53. The Court granted counsel's
request to withdraw, and new counsel was appointed to
represent Yansane. The Court permitted Yansane's new
counsel to file a supplemental brief in support of the Motion
to Withdraw Guilty Plea, which is now ripe for disposition.
Court held a hearing on the pending Motion on January 23,
2019. Yansane's counsel offered to present one witness,
Yansane's former roommate Abdul Sesay, and represented
that in support of Yansane's argument that he should be
permitted to withdraw his guilty plea because the police had
entered his residence before the search warrant was executed,
Sesay would testify to the time that the police entered the
residence shared by Yansane and Sesay to conduct the search
which provided the basis for Yansane's arrest.
Yansane's counsel acknowledged, however, that Sesay would
offer no new information beyond the facts contained in his
Declaration, attached to Yansane's reply memorandum on
the Motion. The Government objected to Sesay's testimony
on the ground that it would not provide a basis to grant the
Motion, but acknowledged that for purposes of the Motion, it
would not dispute that Sesay would testify to the facts
contained in his Declaration. Because the parties agreed that
the Court could consider the Declaration in resolving the
Motion, the Court determined that Sesay's testimony would
not be necessary. Thus, no witnesses testified at the
hearing, but the Court heard argument from both parties and
took the Motion under advisement.
Motion, Yansane requests that he be permitted to withdraw his
guilty plea because he did not know at the time that he
entered the guilty plea that he was not a United States
citizen, and his attorney did not verify his immigration
status or advise him of the immigration consequences he
faced. He also argues that he should be permitted to withdraw
his guilty plea because Sesay's testimony would establish
that the search of his residence violated the Fourth
Amendment to the United States Constitution and ...