United States v. Alfredo Ortega-Ascanio

This appeal asks us to decide whether a defendant establishes a “fair and just reason” for withdrawing a plea when he seeks to withdraw his plea before sentencing so that he can move to dismiss his indictment based on an intervening United States Supreme Court decision. In the circumstances of this case, we answer yes.

Appellant Alfredo Ortega-Ascanio pled guilty to illegal reentry. After his guilty plea, but before sentencing, the Supreme Court decided INS v. St. Cyr, 533 U.S. 289 , 121 S.Ct. 2271 , 150 L.Ed.2d 347 (2001). St. Cyr held that the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) could not apply retroactively to bar § 212(c) discretionary relief to aliens who were eligible for such relief at the time they pled guilty to the offense that rendered them ineligible under the AEDPA. Ortega-Ascanio subsequently moved the district court to withdraw his guilty plea so that he could move to dismiss his indictment on the ground that under St. Cyr his prior order of deportation was invalid. The district court denied his motion. The court held that Ortega-Ascanio had not demonstrated a “fair and just reason” for withdrawing his plea because a pre-plea…