Second Circuit rejects sex offender's effort to expand Padilla to undo plea

The Second Circuit handed down an interesting panel opinion earlier this week in US v. Youngs, No. (2d Cir. July 23, 2012) (available here), which gets started this way:

Defendant Mark Allen Youngs (“Youngs”) appeals from his judgment of conviction. On August 27, 2008, Youngs waived indictment and pleaded guilty in the U.S. District Court for the Western District of New York to a two-count Superseding Information that charged him with producing child pornography in violation of 18 U.S.C. § 2251(a) (“Count One”); and possessing child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B), (b)(2) (“Count Two”). Youngs argues that his plea was defective because the district court did not advise him of the possibility of civil commitment as a sexually dangerous person at the end of his prison term. We hold that the district court was not required by due process or Rule 11 of the Federal Rules of Criminal Procedure (“Rule 11”) to advise Youngs of the possibility of civil commitment and affirm the conviction.

These paragraphs from the Youngs opinion explain why the Supreme Court's recent ruling in Padilla does not help carry the day for the defendant here (some cites and footnotes omitted):

While Youngs refers to Padilla as representing a “trend away from the distinction between direct and collateral consequences,” Appellant Br. at 22, Padilla’s holding was limited to the requirement of counsel to advise of deportation pursuant to their Sixth Amendment responsibilities.  These Sixth Amendment responsibilities of counsel to advise of the advantages and disadvantages of a guilty plea are greater than the responsibilities of a court under the Fifth Amendment.  See Libretti v. United States, 516 U.S. 29, 50-51 (1995) (holding that counsel, not the court, bears the responsibility of advising a defendant of the consequences of a guilty plea, apart from the “small class of rights” enumerated in Rule 11).  Thus, the Padilla Court's unwillingness to apply the direct/collateral distinction in the Sixth Amendment context does not demonstrate the Court’s intention to do away with that distinction entirely in the Fifth Amendment context....

While the Court in Padilla did not discard the direct/collateral distinction for due process, we recognize that Padilla may create some uncertainty as to the usefulness of categorizing certain consequences as either “direct” or “collateral” in the Fifth Amendment context. We nonetheless conclude that advising of the possibility of civil commitment under the Act does not fall within the scope of a district court’s due process obligations because the concerns expressed by the Supreme Court in Padilla as to deportation in the context of adequate counsel under the Sixth Amendment do not apply to such a remote and uncertain consequence as civil commitment.

In deeming deportation a “virtually inevitable” result of a noncitizen’s conviction for certain offenses, the Supreme Court pointed out in Padilla that the only way for such defendants to avoid deportation is the “possible exercise of limited remnants of equitable discretion vested in the Attorney General to cancel removal for noncitizens convicted of particular classes of offenses.”  Padilla, 130 S. Ct. at 1478, 1480.  Because deportation under these circumstances is nearly automatic, the Court concluded that deportation must be reviewed by counsel. Id. at 1482-83.  As discussed above, however, future civil commitment under the Act is not nearly as certain.  The Act provides discretion to the Government in choosing whom to certify for possible civil commitment.  Unlike deportation, the district court ultimately determines whether a defendant is civilly committed.  While the qualifying misconduct here is likely a predicate to consideration for civil commitment, once the Government decides to certify an inmate — Youngs or anyone else — for civil commitment, the Government will still have to establish by clear and convincing evidence that the inmate suffers from a condition that will make him sexually dangerous to others.  Thus, the likelihood of Youngs’s civil commitment is uncertain, both at the time of his plea and at the completion of his period of incarceration.