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February 24, 2004.


The opinion of the court was delivered by: REGGIE B. WALTON, District Judge

*fn1 This action was assigned a civil case number, No. 03-178, however, the pleadings have all been designated for filing in this criminal case file.


Currently before the Court is the defendant's Motion to Vacate, Set Aside or Correct Sentence. For the reasons below, the Court concludes that defendant's guilty plea was not voluntary and his guilty plea and sentence are vacated.

  I. Factual Background

  Philip Singh, who is 40 years old, has legally resided in the United States for 30 years, although he has remained a citizen of Guyana. Defendant's Motion to Set Aside or Correct Sentence ("Def.'s Mot.") ¶ 3. He is married to Janet Campbell Singh, a United States citizen, and has two small children who are also United States citizens. Id. ¶ 4. On June 7, 2001, Singh was charged in an information with mail fraud and aiding and abetting, in violation of 18 U.S.C. § 1341 and 1342, along with a "[f]orfeiture [a]llegation" pursuant to 18 U.S.C. § 982. The information accused Singh of engaging in a fraudulent scheme between March 1999 and February 2001, while he was a materials buyer for Providence Hospital. While Page 2 employed there, defendant allegedly embezzled monies from the hospital by creating false purchase orders for materials or services from Allstarts, Inc., a shell company he formed, that were never actually received by the hospital. The creation of the purchase orders caused the hospital to send a number of checks to a post office box that Singh had established in Allstarts' name as payment for the non-existent materials and services. The checks were subsequently endorsed in Singh's wife's maiden name and deposited into his and his wife's joint bank account. As a result of the scheme to defraud the hospital, defendant received funds totaling approximately $349,027.

  According to the government, this was not Singh's first occasion when he defrauded one of his employers. Prior to working at Providence Hospital, Singh was employed at Arlington Hospital where, again using the Allstarts company he established, he misappropriated approximately $167,800.43 of that hospital's funds. Defendant used the money from these schemes to purchase real estate, a Lexus automobile, and to otherwise enhance the quality of his and his wife's lifestyles.

  On July 23, 2001, defendant entered into an agreement to plead guilty to the mail fraud charge and also agreed to forfeit $110,880.76 in cash, the Lexus automobile, and the equity in his two Virginia residences. On the same date, defendant entered his plea of guilty before another judge of this Court. During the plea hearing, the judge, once informed that defendant was a citizen of Guyana, advised defendant that because he was "not a United States citizen, if I accept your plea of guilty, this could result in your deportation from the United States." Page 3 Transcript of Guilty Plea to Information dated July 23, 2001 ("Plea Tr.") at 5 (emphasis added). However, because defendant pled guilty to mail fraud involving more than $10,000, which is categorized as an "aggravated felony"*fn2 under the immigration laws, he faces absolute, non-discretionary deportation.

 The Parties' Arguments

  Defendant argues that his sentence should be vacated for several reasons. First, he argues that the Rule 11 colloquy was defective because "it fail[ed] to inform [him] about the automatic deportation consequences of his plea to an `aggravated felony'. . . ." Memorandum of Facts and Law in Support of Defendant's Motion to Vacate, Set Aside or Correct Sentence ("Def.'s Mem.") at 4. Although acknowledging that the District of Columbia "Circuit has held that the immigration consequences of a criminal conviction are `collateral,'" and therefore, a defendant does not need to be informed of such consequences, see United States v. Russell, 686 F.2d 35, 38-39 (D.C. Cir. 1982), defendant argues that "this holding should be re-examined because the 1990 and 1996 amendments to the Immigration and Nationality Act make deportation `essentially certain, automatic and unavoidable' where a defendant is convicted of an aggravated felony." Def.'s Mem. at 4 (quoting United States v. Couto, 311 F.3d 179, 190 (2d Cir. 2002)). Second, defendant argues that his sentence should be vacated because he was misinformed by the prosecutor and the judge as to the immigration consequences of his guilty plea. Id. at 9. Third, Page 4 defendant argues that for different reasons his guilty plea and sentence should be vacated because he received ineffective assistance of counsel. Id. at 13.

  In opposition, the government argues that Russell is binding precedent on this Court and furthermore "several other circuits have been asked to reconsider prior rulings on the issue of whether immigration consequences of a guilty plea are direct or collateral consequences of a plea in light of the changes in the immigration laws[,] [and] have uniformly found those consequences to be collateral. . . . ." Government's Opposition to Defendant's Motion to Vacate, Set Aside or Correct Sentence Pursuant to 28 U.S.C. § 2255 ("Gov.'s Opp'n") at 8-9 n.2 (citations omitted). Regarding the defendant's second argument, the government argues that he was informed that there was a potential he could be deported and thus he was not prejudiced by any misinformation he received. Id. at 7. Finally, the government takes exception with the defendant's claim that his counsel's performance was constitutionally ineffective. Id. at 6-7.

  II. Analysis

  Defendant's challenge to his guilty plea and sentence is made pursuant to 28 U.S.C. § 2255, which permits him to "move the court which imposed the sentence to vacate, set aside, or correct the sentence[,]" on the grounds that
the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack. . . .
28 U.S.C. § 2255. Under § 2255, the reviewing court, if it Page 5
finds that the judgment was rendered without jurisdiction, or that the sentence imposed was not authorized by law or [is] otherwise open to collateral attack, or that there has been such a denial or infringement of constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack . . . shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate.
Id. Here, defendant's collateral attack on his guilty plea and sentence is predicated on two theories: (1) his guilty plea ...

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