UNITED STATES OF AMERICA, PETITIONER V. SAMSON E. SHONDE No. 87-134 In the Supreme Court of the United States October Term, 1987 The Solicitor General, on behalf of the United States, petitions for a writ of certiorari to review the judgment of the United States Court of Appeals for the Eighth Circuit in this case. Petition for a Writ of Certiorari to the United States Court of Appeals for the Eighth Circuit TABLE OF CONTENTS Opinions below Jurisdiction Statute involved Question presented Statement Reasons for granting the petition Conclusion Appendix OPINIONS BELOW The opinion of the court of appeals (App., infra, 1a-3a) is reported at 803 F.2d 937. The order of the court of appeals denying rehearing (App., infra, 7a) is reported at 815 F.2d 475. The oral opinion and written order of the district court (App., infra, 19a-24a, 4a-5a) are unreported. JURISDICTION The judgment of the court of appeals (App., infra, 6a) was entered on October 16, 1986. A petition for rehearing was denied on March 23, 1987 (App., infra, 7a). On June 12, 1987, Justice Blackmun extended the time within which to file a petition for a writ of certiorari to and including July 21, 1987. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). STATUTE INVOLVED 8 U.S.C. 1251 provides, in pertinent part: (a) Any alien in the United States * * * shall, upon the order of the Attorney General, be deported who -- * * * * * (4) is convicted of a crime involving moral turpitude committed within five years after entry and either sentenced to confinement, or confined therefor in a prison or corrective institution, for a year or more, or who at any time after entry is convicted of two crimes involving moral turpitude, not arising out of a single scheme of criminal misconduct, regardless of whether confined therefor and regardless of whether the convictions were in a single trial; * * * * * (b) The provisions of subsection (a)(4) of this section respecting the deportation of an alien convicted of a crime or crimes shall not apply * * * (2) if the court sentencing such alien for such crime shall make, at the time of first imposing judgment or passing sentence, or whithin thirty days thereafter, a recommendation to the Attorney General that such alien not be deported, due notice having been given prior to making such recommendation to representatives of the interested State, the Service, and prosecution authorities, who shall be granted an opportunity to make representations in the matter. QUESTION PRESENTED Whether the district court had "inherent authority" to vacate respondent's guilty plea and dismiss the underlying indictment because it believed that respondent's conviction might affect his immigration status. STATEMENT 1. Respondent entered the United States in 1974 on a temporary immigration visa. In 1984, he owned and operated a grocery store in St. Paul, Minnesota. He was indicted by a federal grand jury in August of that year and charged with three counts of unlawfully dealing in federal food stamps, in violation of 7 U.S.C. 2024(b). Akinsanya A. Cole was named as respondent's co-defendant in Counts One and Two of the indictment. App., infra, 2a. On October 16, 1984, respondent pleaded guilty to Count Two of the indictment, which involved a discounted cash purchase of food stamps from an undercover agent of the Department of Agriculture. Respondent pleaded guilty pursuant to an agreement that the other two counts would be dismissed and that the maximum term of imprisonment the court would impose was six months. The United States further agreed not to object to work release as an alternative to imprisonment and that no fine would be imposed, although restitution was to be in the discretion of the court. See App., infra, 8a-9a. At the plea hearing respondent admitted that he bought food stamps having a face value of $1,005 for $65 in cash. Respondent further acknowledged that he knew at the time that what he was doing was wrong. Id. at 9a-10a. After assuring itself that the plea was knowlingly and voluntarily entered, the court accepted it (id. at 9a-11a). 2. On the same day that respondent pleaded guilty, his co-defendant, Akinsanya Cole, went to trial on Counts One and Two. The evidence at that trial showed that respondent enlisted Cole to assist him in purchasing food stamps on two occasions. On the second day of trial, however, it became clear that the government was not going to prove that Cole received any money for his part in these transactions. As a consequence, the district court dismissed the case. The presiding judge, the Honorable Miles Lord, stated to the prosecutor: "You could technically make out a case, but it would get no sentence. All he would have is a conviction on his record and get deported." App., infra, 13a. The court then explained to the jury the reason for its mid-trial dismissal of the charges against Cole (App., infra, 13a-14a). Because that dismissal influenced the court's ultimate disposition of respondent's case, we set out those remarks in some detail. The court began by telling the jury that "(a) Judge has supervision over law enforcement" and that he had personally "concluded that in this instance the penalty does not fit the crime." App., infra, 13a. The court noted that there was no proof that defendant Cole was to get any money from the transactions or that these two instances were part of "a pattern of conduct on his part." Rather, he was just helping out a fellow countryman and deportation was too severe a penalty for that. The court continued (App., infra, 14a): There may be welfare cheaters. This man is not on welfare. He monkeyed with this thing. He should not have done that. But if he were convicted, I would not punish him severely -- you know it would be some nominal sentence. Really the focus was on the grocery man (i.e., respondent). Judge Lord noted that the jury could "agree with me or disagree with me -- it does not make any difference because I have already dismissed the case, you see -- but if there is another case and he's back in there, they will get him again." The court concluded by stating: "I have overruled the judgment of the U.S. Attorney in this instance, so the case is over." App., infra, 14a. 3. On December 6, 1984, the court sentenced respondent to two years' probation and ordered him to make restitution to the Department of Agriculture in the amount of $746 (App., infra, 17a-18a). In addition, at the request of respondent's counsel and pursuant to 8 U.S.C. 1251(b)(2), the court directed that respondent not be deported as a consequence of his conviction (App., infra, 18a). /1/ The court elaborated on the reasons for, as well as the implications of, its order (ibid.): Now I have indicated that I would indicate to the Immigration Department and order them not to deport you. If that punishment is to follow -- if they are to deport him -- I will entertain a motion to dismiss this plea of guilty -- to withdraw it -- and at that point I will dismiss the charges; because I didn't like the way, I didn't think it was fair the way the Department of Agriculture went about this whole process. That's why I dismissed the other person (i.e., co-defendant Cole). The court's judgment order contained a specific provision noting: "(T)he defendant is not to be deported under this Court's authority provided in Title 8, United States Code, Section 1251(b). If any deportation proceedings arise in the future, this Court will entertain a motion from the defendant to vacate his plea of guilty and dismiss the charge." Judgment and Probation/Commitment Order, Crim. No. 4-84-74(01) (D.Minn. Dec. 6, 1984). 4. On February 26, 1985, respondent, who had overstayed his immigration visa, was ordered to show cause why he should not be deported. By that time, however, respondent was married to an American citizen, and his wife had petitioned to have his status readjusted to that of pernament resident based on the marriage. The immigration judge therefore dismissed the deportation proceedings on April 23, 1985, and remanded the case to the district director for disposition of respondent's adjustment of status application. App., infra, 2a. Notwithstanding the dismissal of the deportation proceedings, respondent subsequently moved in district court under 28 U.S.C. 2255 for the vacation of his conviction and the dismissal of the indictment. In his pleadings, respondent conceded that he was "not being deported because of this conviction" and, indeed, that the deportation proceedings had been dismissed. Motion to Vacate Plea of Guilty and to Dismiss the Charge, Crim. No. 4-84-74(01) (May 21, 1985). See also App., infra, 22a-23a. He claimed, however, that "the conviction is an adverse factor which may be considered in exercising discretion * * * in connection with defendant's adjustment of status application" (Motion to Vacate Plea, supra). /2/ 5. The district court vacated the guilty plea and dismissed the indictment. At an oral hearing on July 2, 1985, the court rejected the government's argument that there was nothing to indicate that respondent would be deported and that, in any event, the court's order could be enforced against INS without the "drastic remedy" of vacating the plea and dismissing the indictment. The court responded (App., infra, 22a): I think that my sentence leaves the Immigration people in a posture where they can do it if they want to, and that my only remedy -- I cannot enjoin them from following what they see to be their duty; if they see it to be their duty to use that conviction and to disregard my language, my only remedy is to dismiss the conviction -- and that is permanent. The court explained the reasons for its action in some detail (App., infra, 21a): Do you know what's bothering me? Shonde is a pretty good fellow. I think he's a good citizen and -- he'll be a good citizen. We want to deport him. Then we have a little skunk like the man who just left here, who has never done anything right in his whole life, and we give him free board and room for four or five years and support five of his children by five different women. We should have a deportation mechanism for men like him. But Shonde here is -- I think he'll be a good citizen, a conscientious person, and bright, intelligent, decent. * * * * * And now we're going to send him off. We won't have a friend here or there. The court noted that it had dismissed the case against respondent's co-defendant "on the basis that I didn't think the facts sustained a conviction" (App., infra, 23a). At that point, the prosecutor interposed and explained to the court that in fact "you felt that the government had proved its case and that he had done something that he shouldn't have done, but you felt that the penalty was too great in that regard in that case, and you dismissed on those grounds" (ibid.). The court stated, "All right, I remember that now," but nonetheless continued (App., infra, 24a): Well, here is what I am going to do -- and I don't think anybody is going to be particularly injured by it. On the basis of the information that was disclosed during the trial of this case, I conclude that the facts were not sufficient to sustain a conviction of this defendant, and I vacate the plea and dismiss the case. He's been punished -- the punishment that is coming to him he's had already -- and the administrative proceeding that followed. The conviction on the record is not representative of what I believe to be the man's character, and therefore the conviction is eradicated. A formal order vacating resondent's guilty plea and dismissing the indictment was entered on July 24, 1986 (App., infra, 4a-5a). 6. On the government's appeal from the dismissal order, the court of appeals affirmed (App., infra, 1a-3a). Without citing any authority for its decision, the court concluded that the district court had "inherent authority" to condition the judgment of conviction on respondent's not being deported and, when that condition was breached, the court was justified in vacating the guilty plea and dismissing the indictment. The court of appeals' entire discussion of the issue was as follows (App., infra, 3a): Without regard to the district court's authority under (8 U.S.C.) 1251(b)(2), the district court had inherent authority to enter its order stating it would reconsider its judgment if deportation proceedings were initiated by the government. Because the government breached the order by bringing deportation proceedings, it was appropriate for the district court to entertain (respondent's) motion to vacate his plea of guilty and dismiss the indictment. The court of appeals denied the government's request for rehearing en banc, with five judges dissenting (App., infra, 7a). REASONS FOR GRANTING THE PETITION The district court in this case arrogated to itself powers that are not judicial, but are reserved for the Executive Branch. In that regard, the district court committed three serious errors. First, the court improperly set aside the judgment of conviction because the immigration authorities took steps, subsequently withdrawn, to deport respondent. Second, the court improperly permitted a collateral attack on a voluntary and intelligent plea of guilty. Third, the court took the drastic step of dismissing an indictment in a case that did not even remotely fit within the limited class of cases in which that remedy is justified. The court of appeals approved each of these steps as being within the discretionary authority of the district court. In fact, however, as this Court has made clear, a district court may not vacate convictions and dismiss criminal charges simply because the court questions the wisdom of a particular prosecution decision or disagrees with other steps the Executive Branch has taken against a defendant. The district court's action in this case -- fully sanctioned by the court of appeals -- reflects a disregard for the limits on a court's authority over a criminal prosecution. The view of judicial authority taken by the courts below would permit a district court to upset a valid judgment of conviction and even dismiss a prosecution altogether because the court disagrees with the prosecutor's charging decision, or because the district court objects to the government's treatment of the defendant in other respects. This Court has repeatedly held that a district court's role in the criminal process does not extend that far. The Court should grant certiorari to reaffirm that the separation of powers does not authorize a district court to exercise free-wheeling power to upset valid convictions and dismiss charges brought by the Executive Branch whenever the court feels that it is in the general interest of justice for it to do so. 1. The power of a district court to enter judgment against a criminal defendant is exclusively statutory in nature. The court cannot impose a greater or lesser punishment than sanctioned by the legislature. There is no "inherent authority" to structure a sentence except as provided in the applicable statutory grant of authority. Ex Parte United States, 242 U.S. 27, 42 (1916); United States v. Haile, 795 F.2d 489, 492 (5th Cir. 1986); United States v. John Scher Presents, Inc., 746 F.2d 959, 961 (3d Cir. 1984); United States v. Missouri Valley Const. Co., 741 F.2d 1542, 1546 (8th Cir. 1984) (en banc); United States v. Cohen, 617 F.2d 56, 58 (4th Cir.), cert. denied, 449 U.S. 845 (1980). Under the statute applicable to this case, 7 U.S.C. 2024(b), a court may impose for a first felony conviction a term of imprisonment of up to five years and a fine of up to $10,000, as well as barring the defendant from further participation in the food stamp program. Alternatively, the court may "withhold the imposition of the sentence on the condition that (the defendant) perform * * * work assigned by the court for the purpose of providing restitution for losses incurred by the United States and the State agency as a result of the offense for which such individual was convicted." 7 U.S.C 2024(b)(2). Neither Section 2024 nor the general provisions governing sentencing, 18 U.S.C. (& Supp. III) 3561 et seq.; Fed. R. Crim. P. 32-36, authorize a judgment conditioned on any other factors. Nor does 8 U.S.C. 1251(b)(2) authorize the imposition of a conditional judgment. Section 1251(b)(2) simply allows a court to make a binding recommendation that a defendant not be deported under the terms of Section 1251(a)(4) because of his conviction. That recommendation has no bearing on the remainder of the sentence, and the court is not authorized to condition its judgment upon compliance with the Section 1251(b)(2) recommendation. As respondent himself acknowledged before the district court (App., infra, 22a-23a), the deportation proceedings at issue here were not commenced under Section 1251(a)(4). They were not based in any way on his conviction. Rather, they were commenced because respondent had overstayed his immigration visa. Thus, there was no violation of the court's recommendation. /3/ But even if a violation had occurred -- even if, that is, INS had sought to deport respondent under Section 1251(a)(4) -- respondent's remedy would lie in an appeal from the deportation order, not in a collateral attack on his conviction. See e.g., Delgado-Chavez v. INS, 765 F.2d 868 (9th Cir. 1985); Cerujo v. INS, 570 F.2d 1323 (7th Cir. 1978); Giambanco v. INS, 531 F.2d 141 (3d Cir. 1976). More generally, it is well established that a district court does not have "inherent authority" to condition the finality of a criminal judgment on future events unrelated to the prosecution. Nor can the court enforce such a condition by permitting a collateral attack on the conviction if the condition is not satisfied. See United States v. Huss, 520 F.2d 598 (2d Cir. 1975) (28 U.S.C. 2255 not available to challenge conditions of confinement); Freeman v. United States, 254 F.2d 352, 353-354 (D.C. Cir. 1958) (same for manner in which sentence is executed); Costner v. United States, 180 F.2d 892 (4th Cir. 1950) (same for calculation of good time credits). Cf. United States v. Dragna, 746 F.2d 457 (9th Cir. 1984) (reversing district court's reduction of sentence under Rule 35(b) based on frustration of court's intent as to where defendant would be confined), cert. denied, 469 U.S. 1211 (1985). The decision of the courts below "confer(s) on the judiciary discretionary power to disregard the considered limitation of the law that it is charged with enforcing." United States v. Payner, 447 U.S. 727, 737 (1980). "(T)he supervisory power does not extend so far." Ibid. In United States v. Addonizio, 442 U.S. 178 (1979), this Court held that a postsentencing change in the policies of the Parole Commission that prolonged the defendant's actual imprisonment beyond the period intended by the sentencing judge did not support a collateral attack on the original sentence under 28 U.S.C. 2255. The district court in that case, upheld by the court of appeals, concluded that its "sentencing expectations" were frustrated by the Parole Commission's subsequent adoption of new standards and procedures. The court therefore changed the defendant's sentence to "time served." This Court reversed, stressing the narrowly limited grounds on which a collateral attack on a final judgment may be based (442 U.S. at 186): The claimed error here -- that the judge was incorrect in his assumptions about the future course of parole proceedings -- does not meet any of the established standards of collateral attack. There is no claim of a constitutional violation; the sentence imposed was within the statutory limits; and the proceeding was not infected with any error of fact or law of the "fundamental" character that renders the entire proceeding irregular and invalid. The same is true in the instant case. There is no claim of any constitutional violation. The sentence respondent received was well within the statutory limits. And no finding was made that the guilty plea and sentencing proceedings were in any way infected with legal or factual error, whether fundamental or otherwise. Under these circumstances, the sentencing judge's intentions concerning respondent's immigration status will not support a collateral attack on the judgment. The Court stressed in Addonizio that, with certain limitations, Congress had given the Parole Commission the responsibility of deciding when to release a lawfully sentenced defendant (442 U.S. at 188). Under the statutory scheme, the sentencing judge has no enforceable expectations with respect to the actual release date of a sentenced defendant short of his statutory term. "The judge may well have expectations as to when release is likely. But the actual decision is not his to make, either at the time of sentencing or later if his expectations are not met" (id. at 190). Thus, the only remedy of the defendant from a decision of the Parole Commission denying him parole is on review of that decision, not in a collateral attack on his sentence (id. at 187, 190). The same principles apply here. Congress has, with certain limitations, committed immigration decisions to the initial discretion of the INS. A judge sentencing a criminal defendant may have certain expectations as to the effect of the conviction on his immigration status; under Section 1251(b)(2), the district court may even direct that the conviction not be used as the basis for deportation under Section 1251(a)(4). But the actual immigration decision is wholly separate from the judgment of conviction, and the only remedy available to a defendant who is subsequently ordered deported is on review of the deportation order, not in a collateral attack on his judgment of conviction. By treating the judgment in this case as a conditional judgment that the court could revoke at any time it believed the conditions were not satisfied, the district court violated basic principles of the law of criminal judgments, as set forth by this Court in Addonizio. That departure from important and settled principles of law is, in itself, sufficient to warrant this Court's review. 2. Even if the deportation proceedings had provided some basis for the district court to reconsider its prior judgment, there would still be no justification for the court's decision to vacate respondent's guilty plea. This Court has continually stressed that a voluntarily entered guilty plea may not be set aside in a collateral proceeding. As the Court stated in Mabry v. Johnson, 467 U.S. 504, 508 (1984), "(i)t is well settled that a voluntary and intelligent plea of guilty made by an accused person, who has been advised by competent counsel, may not be collaterally attacked." See also Tollett v. Henderson, 411 U.S. 258, 266-267 (1973); North Carolina v. Alford, 400 U.S. 25, 31 (1970); Parker v. North Carolina, 397 U.S. 790.797-798 (1970); McMann v. Richardson, 397 U.S. 759, 772 (1970); Brady v. United States, 397 U.S. 742, 747-748 (1970). There was no claim in this case that respondent's plea was uncounseled or that it was not voluntarily and intelligently entered. Respondent's guilty plea fully complied with the requirements of Rule 11 of the Federal Rules of Criminal Procedure (App., infra, 8a-11a), and there has never been any allegation that the plea was not informed and consensual. Respondent's plea agreement with the government was not conditioned in any way on a promise that he would not be deported. App., infra, 8a-9a. The issue was not even raised until the sentencing hearing, when respondent's counsel requested a recommendation from the court under Section 1251(b)(2). App., infra, 17a. In any event, even if the non-deportation recommendation under Section 1251(b)(2) could somehow be construed as a condition of the plea agreement, that condition could be enforced without disturbing the guilty plea. See Santobello v. New York, 404 U.S. 257, 263 (1971). Since "(i)t is only when the consensual character of the plea is called into question that the validity of the plea may be impaired," Mabry v. Johnson, 467 U.S. at 509, the subsequent deportation proceedings provided no grounds for vacating respondent's guilty plea. One other justification offered by the district court in support of its action -- although ignored by the court of appeals in sustaining that action -- was that, after sitting through the trial of respondent's co-defendant, the district court concluded that "the facts were not sufficient to sustain a conviction of this defendant" (App., infra, 24a). Even assuming, however, that the district court intended to rely in part on that ground, /4/ it was an improper one. It is well established that "a counseled plea of guilty is an admission of factual guilt so reliable that * * * it quite validly removes the issue of factual guilt from the case." Menna v. New York, 423 U.S. 61, 62 n.2 (1975) (per curiam) (emphasis in original). More specifically, a defendant is not "permitted to disown" a plea merely because, in retrospect, the defendant concludes that the government might have had difficulty in factually proving its case. Brady v. United States, 397 U.S. at 757. On this issue as well, this case warrants review. Just as a court may not upset a valid conviction absent error in the proceedings leading to that conviction, a court may not vacate a guilty plea on collateral attack absent a fundamental error in the proceedings leading to the acceptance of the plea. See United States v. Timmreck, 441 U.S. 780, 783 (1979); Cf. Hill v. United States, 368 U.S. 424 (1962). The decision of the courts below on this issue departs so sharply from the role assigned to courts in addressing collateral challenges to guilty pleas that this Court's review is clearly called for. 3. The final step taken by the district court in this case -- dismissal of the indictment -- took the court into the realm that the Constitution reserves for the Executive Branch. Aside from its brief allusion to the sufficiency of the evidence, the district court did not even suggest a judicial basis for its decision. Instead, it simply expressed and then acted upon its opinion that the prosecution of this case was not in the public interest. "The conviction on the record," the court explained, "is not representative of what I believe to be the man's character, and therefore the conviction is eradicated" (App., infra, 24a). The district court, in short, "overruled the judgment of the U.S. Attorney" (App., infra, 14a). In our constitutional system, prosecution decisions are committed to the Executive Branch. Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978). District courts do not possess any authority to dismiss an indictment on the grounds that the defendant is a "pretty good fellow." On the contrary, it is well established that whatever "supervisory power" over law enforcement a court might have, that power does not arm "the federal judiciary with a 'chancellor's foot' veto over law enforcement practices of which it d(oes) not approve." United States v. Russell, 441 U.S. 423, 435 (1973). As the Court stated in Russell (ibid.): The execution of the federal laws under our Constitution is confined primarily to the Executive Branch of the Government, subject to applicable constitutional and statutory limitations and to judicially fashioned rules to enforce those limitations. The court of appeals attempted to justify the district court's action by reference to its "inherent power" to respond to the government's breach of the court's non-deportation order. Even if, however, one accepts the court of appeals' premise -- that the government breached a lawful court order by commencing deportation proceedings against respondent -- dismissal of the indictment was not a legitimate response. The sanction appropriate to such misconduct must be "narrowly tailored" and "approached 'with some caution,'" taking full account of the government's legitimate interest in prosecution. United States v. Hasting, 461 U.S. 499, 506-507 (1983) (quoting United States v. Payner, 447 U.S. at 734). Dismissal of an indictment is "extraordinary relief," United States v. Morrison, 449 U.S. 361 (1981), which is appropriate only in extremely limited situations. This Court stressed in Morrison, 449 U.S. at 365, that "absent demonstrable prejudice, or substantial threat thereof, dismissal of (an) indictment is plainly inappropriate, even though the violation may have been deliberate." There has never been any suggestion that the deportation proceedings at issue here could in any way have prejudiced respondent's criminal prosecution. It follows that even if those proceedings did somehow violate respondent's rights, the district court had no authority to dismiss the indictment as a remedy for that violation. The decision of the court of appeals in this case works an unprecedented shift of authority to determine whether and against whom criminal charges should be brought, from the Executive Branch (and the grand jury), where it has heretofore resided, to the district courts. That decision conflicts with decisions of other circuits which reversed similar usurpations of power by district court judges. See, e.g., United States v. Cannon, 778 F.2d 747 (1985), after remand, 807 F.2d 1528 (11th Cir. 1986) (guilty plea to firearms violation vacated by district court and judgment of acquittal entered on grounds that, in district court's view, defendant should not be deprived of his right to possess hunting weapons); United States v. Gonsalves, 781 F.2d 1319 (9th Cir. 1985) (indictment dismissed by district court on grounds that the trial would be too complex and burdensome); United States v. Valle, 697 F.2d 152 (6th Cir.) (indictment dismissed by district court on grounds that prosecutorial resources would better be allocated elsewhere), cert. denied, 461 U.S. 918 (1983); United States v. Hudson, 545 F.2d 724 (10th Cir. 1976) (indictment dismissed by district court on grounds that the defendant was ill). At bottom, what the district court did in this case, with the blessing of the court of appeals, was to grant respondent a pardon. Pardons are the prerogative of the Executive. Schick v. Reed, 419 U.S. 256, 266-267 (1974); Ex Parte Grossman, 267 U.S. 87, 102-121 (1925). This Court should grant review in this case to reaffirm that important principle and to ensure that district courts are not permitted to assume a generqal supervisory role over prosecution decisions that are strictly the responsibility of the grand jury and the United States Attorney. CONCLUSION The petition for a writ of certiorari should be granted. Respectfully submitted. CHARLES FRIED Solicitor General WILLIAM F. WELD Assistant Attorney General WILLIAM C. BRYSON Deputy Solicitor General MICHAEL K. KELLOGG Assistant to the Solicitor General ROBERT J. ERICKSON Attorney JULY 1987 /1/ Under 8 U.S.C. 1251(a)(4), the Attorney General is directed to deport any alien convicted either of two separate crimes involving moral turpitude or of one crime involving moral turpitude where that crime is "committed within five years after entry" and the alien is "sentenced to confinement or confined therefor in a prison or corrective institution, for a year or more." The sentencing court may, however, direct that Subsection (a)(4) not apply to the conviction at issue. 8 U.S.C. 1251(b)(2). /2/ As an additional reason for dismissing the charges, respondent alleged that the indictment was insufficient to state an offense under this Court's decision in Liparota v. United States, 471 U.S. 419 (1985). In Liparota, the Court held that to prove an offense under 7 U.S.C. 2024(b), the government must show that the defendant knew that his actions were unlawful. Respondent claimed that no such allegation was contained in his indictment. That claim was never addressed by either the district court or the court of appeals. The indictment, in any event, specifically charged that respondent "knowingly and intentionally" violated the Food Stamp Act. Furthermore, at his plea allocution respondent acknowledged that he knew what he was doing was wrong at the time he did it. His guilty plea therefore conformed to the requirements of Liparota and to prior case law from the Eighth Circuit, which Liparota followed. See Liparota, 471 U.S. at 423 n.4. /3/ Even without the court's order, respondent could not have been deported under Section 1251(a)(4). The instant case was his only criminal conviction. Furthermore, the crime was committed more than five years after respondent's entry into the United States, and respondent was not sentenced to a term of imprisonment exceeding one year. Thus, Section 1251(a)(4) by its own terms could not have been applied to respondent. We are informed by INS that respondent was granted permanent resident status on June 16, 1986, at the behest of his American wife. Thus, he no longer faces possible deportation. /4/ In fact, it is clear from the court's comments as a whole that the court acted as it did not based on any concerns about the sufficiency of the evidence, but simply because it considered respondent "a pretty good fellow" who would make "a good citizen" and who had been punished enough for his wrongdoing. App., infra, 23a. Even with respect to co-defendant Cole, the court never concluded that the evidence was insufficient to sustain a conviction. Rather, the court said that the government "could technically make out a case," but that "the penalty does not fit the crime" (App., infra, 13a). The reason the court gave for that conclusion was that respondent was actually the party principally responsible for the crime: "Really, the focus was on the grocery man" (App., infra, 14a). Thus, it is clear from the court's comments at the time of the co-defendant's trial that the court did think the facts were sufficient to sustain a conviction of respondent. Furthermore, Rule 11(f), Fed. R. Crim. P., authorizes a court to accept a guilty plea only if it is "satisf(ied) * * * that there is a factual basis for the plea." The district court assured itself in this case that respondent's plea had a factual basis. App., infra, 9a-11a. Respondent admitted that he bought the foodstamps for cash at a discount off their face value and that he knew it was wrong at the time he did it. App., infra, 9a-10a. No further factual predicate was required to make out a violation of 7 U.S.C. 2024(b). Liparota v. United States, 471 U.S. at 432. Appendix