United States v. Thompson-Riviere

Filed: April 1, 2009

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 07-4793

(3:06-cr-00484-REP)

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

RAY ALEXANDER THOMPSON-RIVIERE,

Defendant - Appellant.

O R D E R

The court amends its opinion filed March 26, 2009, as follows:

On page 5, section II, second paragraph, line 4, the word

“illegally” is deleted.

For the Court - By Direction

/s/ Patricia S. Connor

Clerk

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.

 No. 07-4793

RAY ALEXANDER THOMPSON-

RIVIERE,

Defendant-Appellant.



Appeal from the United States District Court

for the Eastern District of Virginia, at Richmond.

Robert E. Payne, Senior District Judge.

(3:06-cr-00484-REP)

Argued: December 5, 2008

Decided: March 26, 2009

Before NIEMEYER, SHEDD, and DUNCAN,

Circuit Judges.

Vacated and remanded by published opinion. Judge Shedd

wrote the opinion, in which Judge Niemeyer and Judge Dun-

can joined.

COUNSEL

ARGUED: Mary Elizabeth Maguire, OFFICE OF THE FED-

ERAL PUBLIC DEFENDER, Richmond, Virginia, for

2 UNITED STATES v. THOMPSON-RIVIERE

Appellant. Stephen Wiley Miller, OFFICE OF THE UNITED

STATES ATTORNEY, Richmond, Virginia, for Appellee.

ON BRIEF: Michael S. Nachmanoff, Federal Public

Defender, Alexandria, Virginia, for Appellant. Chuck Rosen-

berg, United States Attorney, Alexandria, Virginia; N. G.

Metcalf, Assistant United States Attorney, OFFICE OF THE

UNITED STATES ATTORNEY, Richmond, Virginia, for

Appellee.

OPINION

SHEDD, Circuit Judge:

Ray Alexander Thompson-Riviere, who was born in the

Panama Canal Zone, pled guilty to one count charging him

with violating 8 U.S.C. § 1326(b)(4). That statute makes it a

criminal offense for an alien who has previously been

removed from the United States to reenter the country without

the approval of the Attorney General. Before sentencing,

Thompson-Riviere moved to withdraw his guilty plea, primar-

ily contending that newly obtained DNA evidence indicates

that he may be the biological son of a United States citizen

and, if so, he is also a United States citizen—rather than an

alien—by virtue of 8 U.S.C. § 1403(a). That statute creates a

right of derivative United States citizenship for certain per-

sons born in the Canal Zone. Finding that Thompson-Riviere

failed to meet his burden of proof under § 1403(a), the district

court denied the motion and eventually sentenced him to an

87-month term of imprisonment. Thompson-Riviere now

appeals the denial of his plea withdrawal motion. For the rea-

sons set forth below, we hold that the district court abused its

discretion in denying the motion. Accordingly, we vacate the

judgment and remand this case with instructions to the district

court to allow him to withdraw his plea.

I

A guilty plea is "a grave and solemn act," Brady v. United

States, 397 U.S. 742, 748 (1970), and "is an event of signal

UNITED STATES v. THOMPSON-RIVIERE 3

significance in a criminal proceeding," Florida v. Nixon, 543

U.S. 175, 187 (2004). It "is more than a confession which

admits that the accused did various acts; it is itself a convic-

tion; nothing remains but to give judgment and determine

punishment." Boykin v. Alabama, 395 U.S. 238, 242 (1969).

Guilty pleas "are indispensable in the operation of the modern

criminal justice system," and the finality of such pleas is a

matter of "particular importance." United States v. Dominguez

Benitez, 542 U.S. 74, 82-83 (2004).

Consequently, a defendant awaiting sentencing does not

have an absolute right to withdraw a guilty plea. United States

v. Bowman, 348 F.3d 408, 413 (4th Cir. 2003). Rather, Fed-

eral Rule of Criminal Procedure 11(d)(2)(B) authorizes the

withdrawal of a guilty plea before sentencing only if "the

defendant can show a fair and just reason for requesting the

withdrawal." Because of "the grim dynamics of plea bargain-

ing, including the prevalence of ‘buyer’s remorse’ among

those who have pled," United States v. Torres-Rosario, 447

F.3d 61, 66 (1st Cir. 2006), a district court should not inter-

pret Rule 11(d)(2)(B) "to allow a defendant to withdraw a

guilty plea ‘simply on a lark’ after [it] conducts a thorough

plea colloquy and has made the requisite findings," United

States v. Battle, 499 F.3d 315, 321 (4th Cir. 2007), cert.

denied, 128 S. Ct. 1121 (2008). As we have explained:

The orderly procedure in our busy trial courts would

be disrupted if a fair and just reason were found to

lodge in all cases where the vagaries of a defendant

were due only to a wish held by many if not all crim-

inal defendants who do not relish the prospects of

standing trial but also, in the end, decide to take an

unreasonably long-shot gamble on beating by stand-

ing trial a fair, reasonable and just guilty plea.

United States v. DeFreitas, 865 F.2d 80, 83 (4th Cir. 1989);

see also Brady, 397 U.S. at 757 ("A defendant is not entitled

to withdraw his plea merely because he discovers long after

4 UNITED STATES v. THOMPSON-RIVIERE

the plea has been accepted that his calculus misapprehended

the quality of the State’s case or the likely penalties attached

to alternative courses of action.").

"[T]he defendant bears the burden of demonstrating that

withdrawal should be granted," United States v. Dyess, 478

F.3d 224, 237 (4th Cir.), cert. denied, 128 S. Ct. 707 (2007);

in this regard, the defendant bears a "heavy burden of persua-

sion in showing that . . . a fair and just reason exists," United

States v. Chavers, 515 F.3d 722, 724 (7th Cir. 2008). "The

decision to permit the defendant to withdraw a plea is discre-

tionary, and our review is limited to the question of whether

the district court abused its discretion." United States v. Lam-

bey, 974 F.2d 1389, 1393 (4th Cir. 1992) (en banc). "A dis-

trict court abuses its discretion when it acts arbitrarily or

irrationally, fails to consider judicially recognized factors con-

straining its exercise of discretion, relies on erroneous factual

or legal premises, or commits an error of law." United States

v. Delfino, 510 F.3d 468, 470 (4th Cir. 2007), cert. denied,

129 S. Ct. 41 (2008).

In light of the fact that "a properly conducted Rule 11

guilty plea colloquy leaves a defendant with a very limited

basis upon which to have his plea withdrawn," we have artic-

ulated a list of non-exclusive factors for a district court to

consider in deciding a plea withdrawal motion. Bowman, 348

F.3d at 414. Those factors are: (1) whether the defendant has

offered credible evidence that his plea was not knowing or not

voluntary, (2) whether the defendant has credibly asserted

legal innocence, (3) whether there has been a delay between

entry of the plea and the filing of the motion, (4) whether the

defendant has had close assistance of competent counsel, (5)

whether withdrawal will prejudice the government, and (6)

whether withdrawal will inconvenience the court and waste

judicial resources. Id. The consideration of these factors is not

"a rigidly mechanistic test, for the conspicuous fuzziness of

[the] operative terms — ‘fair and just’ — precludes such an

endeavor." United States v. Sparks, 67 F.3d 1145, 1154 (4th

UNITED STATES v. THOMPSON-RIVIERE 5

Cir. 1995). However, a district court typically should balance

these factors, along with any other pertinent information, to

reach its decision. See United States v. Faris, 388 F.3d 452,

461 (4th Cir. 2004).

II

Evidence in the record indicates that Thompson-Riviere

was born in October 1965 in the Coco Solo Hospital in the

Canal Zone.1 His official birth certificate, which is marked as

being certified by the Panama Canal Commission, lists his

parents as Calvin Thompson and Elvira Riviere, Panamanian

citizens who were married at the time of Thompson-Riviere’s

birth. Calvin Thompson and Elvira Riviere were married for

35 years and are now deceased.

During the 1980s, Thompson-Riviere entered the United

States. In 1994, he was ordered deported to Panama, and he

was removed from the United States to Panama in 1996. He

reentered the United States on the day after he was

removed. In 2006, the government indicted him under

§ 1326(b)(4) for illegal reentry into the United States. To con-

vict him of this offense, the government bore the burden of

proving beyond a reasonable doubt that (inter alia) he is an

"alien," United States v. Espinoza-Leon, 873 F.2d 743, 746

(4th Cir. 1989), which means he is "not a citizen or national

of the United States," 8 U.S.C. § 1101(a)(3). Having no suffi-

1

"From 1904 to 1979, the United States exercised sovereignty over the

Panama Canal and the surrounding 10-mile-wide Panama Canal Zone

under the Isthmian Canal Convention, 33 Stat. 2234." O’Connor v. United

States, 479 U.S. 27, 28 (1986). In October 1979, the Panama Canal Treaty

"transferred to Panama sovereignty over the Canal and Zone, but gave the

United States the right to operate the Canal until December 31, 1999." Id.

"The vehicle for United States administration of the Canal [was] the Pan-

ama Canal Commission, a United States Government agency. . . ." Id.

Coco Solo Naval Air Station was a United States military installation in

the Canal Zone. See Hollander v. McCain, 566 F. Supp.2d 63, 65 (D.N.H.

2008).

6 UNITED STATES v. THOMPSON-RIVIERE

cient reason to doubt that he was an alien, he pled guilty to

the charged offense.

Thompson-Riviere has numerous siblings and maternal

half-siblings, but he has always been closest with Barbara

Hughes. Before his sentencing, Thompson-Riviere obtained

DNA evidence showing a 99% probability that he shares the

same father and mother with Barbara Hughes. Her official

birth certificate, which is marked as being certified by the

Panama Canal Commission, states that she was born in 1950

in the Naval Hospital at Coco Solo to Elvira Riviere and

David Hughes, a United States citizen. She is the youngest of

several children born to these parents. Until this DNA evi-

dence was obtained, Barbara Hughes and Thompson-Riviere

believed that they were only maternal half-siblings. Barbara

Hughes is retired from the United States Air Force and

appears to have resided in the United States since at least the

early 1980s.

Armed with this DNA evidence, Thompson-Riviere moved

to withdraw his guilty plea. Although he briefly addressed all

of the pertinent plea withdrawal factors, the thrust of his

motion is his assertion of legal innocence. Critical to his argu-

ment is 8 U.S.C. § 1403(a), which reads:

Any person born in the Canal Zone on or after Feb-

ruary 26, 1904, and whether before or after the effec-

tive date of this chapter, whose father or mother or

both at the time of the birth of such person was or

is a citizen of the United States, is declared to be a

citizen of the United States.

Thompson-Riviere argued that the DNA evidence creates a

real possibility that he is a United States citizen by virtue of

§ 1403(a) because his father very well may be David Hughes

who, as noted, was a United States citizen. As Thompson-

Riviere explained, if he is a United States citizen rather than

an alien, then he necessarily would be innocent of the charged

UNITED STATES v. THOMPSON-RIVIERE 7

offense. In making this argument, Thompson-Riviere asserted

in his legal memorandum:

When Mr. Thompson-Riviere was interviewed by

Special Agent Robert G. Brown at the Lunenburg

Correctional Center in November 2006, he told the

Special Agent during the interview that his mother

had told him that Calvin Thompson was not his real

father, that he did not know who his father was, and

that he had no further information at that time.

Therefore, at the time of the plea, there was no firm

evidence concerning derivative citizenship.

J.A. 63.

After the government filed a response to the motion, the

district court conducted a telephone conference call with

counsel and alerted them to United States v. Connolly, 2006

Westlaw 1084693 (E.D.N.Y. 2006) ("Connolly I"), which

involved an interpretation of 8 U.S.C. § 1403(b). Similar to

§ 1403(a), § 1403(b) creates citizenship rights for certain chil-

dren born "in the Republic of Panama . . . whose father or

mother or both at the time of the birth of such person was or

is a citizen of the United States employed by the Government

of the United States. . . ."

In Connolly I, the defendant, who was born out of wedlock

in the Republic of Panama, was charged with illegal reentry

under § 1326; however, relying on § 1403(b), he argued that

he was a United States citizen (rather than an alien) because

his biological father was a United States citizen employed by

the United States government at the time of the defendant’s

birth. The district court rejected the defendant’s argument.

Pertinent to the case before us, the court concluded that the

term "father" in § 1403(b) refers only to a parent that has

legitimated the parent-child relationship.2 Without directly

2

To reach this conclusion, the court purported to conduct a Chevron

analysis. See Chevron, U.S.A., Inc. v. N.R.D.C., Inc., 467 U.S. 837 (1984).

8 UNITED STATES v. THOMPSON-RIVIERE

addressing whether § 1403(b) is ambiguous, the court adopted

the government’s interpretation of the statute. Because the

defendant failed to prove that his biological father had legiti-

mated him, the court held that he failed to establish entitle-

ment to citizenship under § 1403(b).3

Several days after the conference call, the district court in

the case before us held a hearing on Thompson-Riviere’s plea

withdrawal motion. At the outset of the hearing, the court

referred to Connolly I and stated:

[I]t seems to me the issue is very simple here. Was

[Thompson-Riviere] ever legitimated or not? The

law seems quite clear that he has to be legitimated in

order to be considered to be a citizen. If you look at

the reasoning of Connolly it seems to me to apply

with equal force to [§ 1403(a)] . . . and it is, as I

understand your evidence, he was never legitimated;

is that correct?

J.A. 93. As Thompson-Riviere’s counsel began to explain

why she did not believe that Connnolly I controlled, the court

reiterated its belief that whether Thompson-Riviere had been

legitimated was the pertinent issue.

Under the Chevron analysis, courts must first consider whether "Congress

has directly spoken to the precise question" at issue. Id. at 842. If Con-

gress has so spoken, the inquiry is at an end, for courts, as well as any

agency charged with enforcement of the statute, "must give effect to the

unambiguously expressed intent of Congress." Id. at 843. However, if

Congress has not directly addressed the precise question at issue, courts

must determine whether the agency’s interpretation of the statute in ques-

tion is based on a permissible construction of the statute. Id.

3

Alternatively, the district court held that the defendant failed to estab-

lish that his biological father was employed by the United States govern-

ment at the time of the birth, a necessary fact under § 1403(b) but not

§ 1403(a).

UNITED STATES v. THOMPSON-RIVIERE 9

After hearing argument from the parties, the district court

identified the six plea withdrawal factors noted above and

found that (1) Thompson-Riviere had not asserted that his

plea was unknowing or involuntary, (2) the delay between the

guilty plea and the motion is insignificant, (3) Thompson-

Riviere had close assistance of counsel during his plea, (4) the

government would not be prejudiced if the motion was

granted, and (5) any inconvenience to the court caused by

withdrawal of the plea does not militate against Thompson-

Riviere. Thus, in the court’s view, three of these five factors

weigh in Thompson-Riviere’s favor.

The district court then observed that the focus of the motion

was really whether Thompson-Riviere had credibly asserted

legal innocence, and that issue depended on his citizenship

status under § 1403. The court noted that it was undisputed

that Thompson-Riviere was born in the Canal Zone, and it

seemed to accept the validity of the DNA evidence. However,

the court then expressly followed Connolly I and concluded:

[W]hat is of record here is that the defendant is not

a legitimate child of David Hughes, the putative

father. And I construe section 1403 the same way as

the court did in construing section 1403(b) in Con-

nolly. . . .

The rule is that an illegitimate child does not acquire

citizenship through a citizen father unless the child

[is] legitimated. . . .

So I think the basic principal of Connolly and inter-

pretation is correct. There is no evidence, and the

defendant concedes there is no evidence, of legitim-

ization here, and therefore the defendant cannot pre-

vail on factor number two . . . , whether the

defendant has credibly asserted his legal innocence;

therefore, the motion to withdraw his guilty plea is

denied.

10 UNITED STATES v. THOMPSON-RIVIERE

J.A. 106-07.

Subsequent to his sentencing, Thompson-Riviere appealed

his conviction, arguing that the district court erred in denying

his plea withdrawal motion. On the day before we heard oral

argument, the Second Circuit issued an opinion addressing the

appeal from Connolly I. See United States v. Connolly, 552

F.3d 86 (2nd Cir. 2008) ("Connolly II"). Although the court

ultimately affirmed Connolly I because the defendant could

not establish the necessary fact for purposes of § 1403(b) that

his father was a United States employee at the time of the

birth, it sharply criticized the Connolly I court’s statutory

analysis pertaining to the issue of legitimization.

In this regard, the Second Circuit framed the issue as being

whether "the term ‘father’ as used in § 1403 refers simply to

a male parent and therefore includes the biological father of

a child born out of wedlock," and it noted that the government

presented "a more narrow and complex definition" that

excluded the father of a child born out of wedlock unless the

child has been legitimated in accordance with the law of the

father’s domicile. 552 F.3d at 88-89. The court pointed out

that the government’s position was based on INS Interpreta-

tion Letter 303.1, 2001 Westlaw 1333855 (2001), a document

that had "very little information about its genesis or identity"

and, in any event, may not command Chevron deference

because it merely appears to be an agency interpretation letter.

552 F.3d at 89 n.2.

The Second Circuit then addressed the Connolly I court’s

purported Chevron analysis and noted:

In this case, it is unclear whether the District Court

addressed the first step of the inquiry. Indeed, there

appears to be little ambiguity in the language of

§ 1403. The statute uses the term "father" without

modification, restriction or exception. INS Interpre-

tation 303.1 itself observed that the precursor statute

UNITED STATES v. THOMPSON-RIVIERE 11

to § 1403 "makes no distinction between persons

born in or out of wedlock." Nor is such a distinction

drawn anywhere in the legislative history.

552 F.3d at 89. The court further observed that "the ordinary

meaning of ‘father’ is a male parent, and it is the duty of the

court to enforce the plain statutory language." Id. at 90.

Additionally, the Second Circuit pointed out that "[w]here

Congress has wished to distinguish fathers of children born

out of wedlock in Title 8, it has not shied away from express

language to that effect." Id. As the court explained:

For purposes of subchapters I and II, of Chapter 12,

Title 8, Congress has expressly excluded fathers of

children born out of wedlock from the definition of

"parent," "if the father has disappeared or abandoned

or deserted the child or if the father has in writing

irrevocably released the child for emigration and

adoption." 8 U.S.C. § 1101(b)(2). However, with

regard to subchapter III (which contains § 1403),

Congress specifically established a much broader

definition of "father." See 8 U.S.C. § 1101(c)(2)

(providing that father as used in subchapter III

includes the deceased father of a posthumous child).

Even within subchapter III, where Congress has

intended to modify the definition of "father" it has

done so expressly, not by implication. See 8 U.S.C.

§ 1409(a) (imposing additional requirements for

grant of citizenship to children born out of wedlock

pursuant to select provisions of §§ 1401 and 1408).

The government argues that the absence of language

excluding fathers of children born out of wedlock

must be read as a tacit endorsement of "the rule that

an illegitimate child does not acquire citizenship

through a citizen father unless the child is legiti-

mated in accordance with the laws of the father’s

domicile." We are persuaded that the intricate legis-

12 UNITED STATES v. THOMPSON-RIVIERE

lative scheme summarized above belies such an

interpretation.

552 F.3d at 90.4

III

As noted, we review the denial of a plea withdrawal motion

for abuse of discretion. Apart from the issue of whether

Thompson-Riviere credibly asserted legal innocence, the dis-

trict court balanced the other plea withdrawal factors slightly

in his favor. The government does not challenge the court’s

findings on any of those factors. However, the court denied

the motion based on its conclusion that Thompson-Riviere

failed to credibly assert legal innocence because he did not

establish that he is the legitimate son of a United States citi-

zen. Relying on Connolly I, the court deemed that fact essen-

tial for purposes of § 1403(a). On appeal, Thompson-Riviere

challenges the court’s interpretation of § 1403(a).

A.

In making its ruling, the district court did not find that

Thompson-Riviere’s evidence lacks credibility or is otherwise

objectionable. Moreover, for purposes of this appeal, the gov-

ernment "acknowledges that the DNA report seems to indi-

cate that [Thompson-Riviere and Barbara Hughes] are brother

and sister." Brief of the United States, at 8. Notwithstanding

this acknowledgment, the government argues that the evi-

dence is insufficient to establish that David Hughes is the bio-

logical father of Barbara Hughes and Thompson-Riviere.

Pointing to the number of children Elvira Riviere had with

Calvin Thompson and the timing of Barbara Hughes’

4

The Second Circuit further concluded that even if the statutory lan-

guage is ambiguous, "the interpretation advanced by the government

would raise a number of difficulties" that it proceeded to address. 552 F.3d

at 1290-91.

UNITED STATES v. THOMPSON-RIVIERE 13

birth—she was born 15 years before Thompson-Riviere—the

government "submits it is just as feasible that Mr. Thompson

came upon the scene toward the end of Mrs. Hughes’ mar-

riage, and that the end result of that union may have been Bar-

bara Hughes." Id. at 9. The government’s suggested version

of events is certainly plausible, but we find it not determina-

tive at this stage of the case.5

Thompson-Riviere’s evidence tends to prove that (1) he

shares the same biological father and mother as Barbara

Hughes and (2) her father is David Hughes, who was a United

States citizen. These facts are taken from objective pieces of

evidence (i.e., the DNA report and an official birth certificate)

that have thus far not been challenged. Additionally, the

record indicates that Thompson-Riviere may have evidence

that his mother told him that Calvin Thompson was not his

father. Although Thompson-Riviere’s evidence does not nec-

essarily prove that David Hughes is his biological father, that

is not his burden at this stage. See United States v. Cline, 286

Fed. Appx. 817, 821 (4th Cir. 2008) (noting that "[i]n

attempting to withdraw from a guilty plea, a defendant is not

required to provide conclusive proof of innocence").

Instead, Thompson-Riviere’s burden is to credibly assert

his legal innocence: that is, to present evidence that (1) has

the "quality or power of inspiring belief," United States v.

Welsh, 774 F.2d 670, 672 (4th Cir. 1985) (citation and quota-

tion marks omitted), and (2) tends to "defeat the elements in

the government’s prima facie case" or to "make out a success-

5

In any event, because the district court did not deny the motion on this

basis, and we are reviewing the court’s exercise of discretion, the propri-

ety of our affirming on this ground is debatable. See Ashby v. McKenna,

331 F.3d 1148, 1151 (10th Cir. 2003) ("Thus, with respect to a matter

committed to the district court’s discretion, we cannot invoke an alterna-

tive basis to affirm unless we can say as a matter of law that it would have

been an abuse of discretion for the trial court to rule otherwise.") (citation

and quotation marks omitted). Clearly, the district court would not have

abused its discretion if it had granted the plea withdrawal motion.

14 UNITED STATES v. THOMPSON-RIVIERE

ful affirmative defense," Sparks, 67 F.3d at 1151; see also

United States v. Hamilton, 510 F.3d 1209, 1214 (10th Cir.

2007) ("[T]he defendant must present a credible claim of legal

innocence. In other words, the defendant must make a factual

argument that supports a legally cognizable defense." (cita-

tions omitted and emphasis in original)). Putting aside the

issue of legitimacy for a moment, Thompson-Riviere clearly

met this evidentiary burden. His evidence, if believed, tends

to establish that he is the biological son of a United States citi-

zen, David Hughes. If that fact is true, and if he is not

required to prove that David Hughes legitimated him, then he

is not an "alien." If he is not an alien, then he cannot be guilty

of illegal reentry under § 1326.6

A case that is analogous in pertinent respects is United

States v. Gomez-Orozco, 188 F.3d 422 (7th Cir. 1999). In that

case, the defendant, who was born in Mexico, pled guilty to

illegal reentry in violation of § 1326. Before his sentencing,

the defendant discovered that he may be a United States citi-

zen based on his parents’ status. The statutes at issue in that

case differ from the one before us, and it is unnecessary to

detail the underlying facts supporting the defendant’s claim of

citizenship. It is sufficient to note that the district court denied

the defendant’s plea withdrawal motion, but the Seventh Cir-

cuit reversed, stating:

6

In most cases, a defendant will not meet this standard by merely con-

tradicting inculpatory statements made during the Rule 11 plea hearing or

by arguing that facts that were known to him at the time of the plea negate

his guilt. See, e.g., United States v. Ubakanma, 215 F.3d 421, 424-25 (4th

Cir. 2000); United States v. Haley, 784 F.2d 1218, 1219 (4th Cir. 1986).

Indeed, "a defendant must give sufficient reasons to explain why contra-

dictory positions were taken before the district court. . . ." United States

v. Brown, 250 F.3d 811, 818 (3rd Cir. 2001) (citation and quotation marks

omitted). Here, Thompson-Riviere has not simply changed his story.

Instead, he did not obtain the DNA evidence until after he pled guilty, and

there is no indication in the record that he knew before his plea that David

Hughes might be his father.

UNITED STATES v. THOMPSON-RIVIERE 15

Gomez-Orozco has presented substantial evidence

that his parents were married under common law at

the time he was born. While this evidence is dis-

puted, the fact remains that he has provided a fair

and just reason to withdraw his plea of guilty so that

he may determine the status of his citizenship.

...

We are not now deciding the issue of Gomez-

Orozco’s citizenship. We simply state that he has

presented enough evidence to show a fair and just

reason why he is permitted to withdraw his guilty

plea. The government must now be put to its burden

of proving every element of 8 U.S.C. § 1326(a)

beyond a reasonable doubt, including the element

that Gomez-Orozco is, indeed, an alien. Since

Gomez-Orozco has shown that he may be an Ameri-

can citizen . . . , it is possible that a jury may find

a reasonable doubt about his alienage, and therefore,

that he cannot be convicted of the offense.

188 F.3d at 427.

B.

Having found that Thompson-Riviere has made a credible

factual assertion that David Hughes is his biological father, a

factor that supports his claim of legal innocence, we now turn

to the legal issue upon which the district court based its denial

of the plea withdrawal motion: whether he is required to

establish that David Hughes legitimated him. Although our

review of the overall decision to deny the plea withdrawal

motion is for abuse of discretion, we review this question of

statutory interpretation de novo. Blaustein & Reich, Inc. v.

Buckles, 365 F.3d 281, 286 (4th Cir. 2004). We hold that the

16 UNITED STATES v. THOMPSON-RIVIERE

district court misinterpreted § 1403(a) by requiring proof of

legitimization.7

Using common sense as a guide, Kofa v. I.N.S., 60 F.3d

1084, 1088 (4th Cir. 1995) (en banc), "[o]ur first step in inter-

preting a statute is to determine whether the language at issue

has a plain and unambiguous meaning with regard to the par-

ticular dispute in the case," Robinson v. Shell Oil Co., 519

U.S. 337, 340 (1997). We determine the "plainness or

ambiguity of statutory language . . . by reference to the lan-

guage itself, the specific context in which that language is

used, and the broader context of the statute as a whole." Id.

at 341. "Our inquiry must cease if the statutory language is

unambiguous and the statutory scheme is coherent and consis-

tent." Id. at 340 (internal quotation marks omitted).8

Section 1403(a) provides in pertinent part that "[a]ny per-

son born in the Canal Zone . . . whose father or mother or

both at the time of the birth of such person was or is a citizen

of the United States, is declared to be a citizen of the United

States." Under the district court’s reading, the term "father" as

used in this statute is ambiguous. Based on that purported

ambiguity, the court adopted the government’s "more narrow

and complex definition," Connolly II, 552 F.3d at 88, holding

7

In the unique posture of this appeal, the answer to this legal question

is dispositive of both whether Thompson-Riviere has credibly asserted

legal innocence and whether he should be allowed to withdraw his plea.

However, we emphasize that even though the legal innocence factor is dis-

positive in this appeal, it is nonetheless simply one factor that must be

considered in combination with the other plea withdrawal factors.

8

See also Three Lower Counties Comm. Health Servs., Inc. v. Maryland,

498 F.3d 294, 301 (4th Cir. 2007) ("We begin with the text, for the

Supreme Court has stated time and again, notwithstanding the administra-

tive complexities of implementing a federal program, courts must presume

that a legislature says in a statute what it means and means in a statute

what it says there. When the statutory language is plain, the sole function

of the courts — at least where the disposition required by the text is not

absurd — is to enforce it according to its terms." (citations and quotation

marks omitted)).

UNITED STATES v. THOMPSON-RIVIERE 17

that in the context of an out-of-wedlock birth the term is lim-

ited to men who have legitimated the child. Like the Second

Circuit, we find that interpretation untenable in light of the

plain language of § 1403(a). See also McConney v. Rogers,

287 F.2d 473, 476 (9th Cir. 1961) (noting that under § 1403

the defendant who was born in either Panama or the Canal

Zone could potentially qualify for citizenship "if one of his

natural parents was an American citizen." (emphasis added)).

In United States v. Sheek, 990 F.2d 150 (4th Cir. 1993), we

considered the meaning of the term "parent" in 18 U.S.C.

§ 1201(a) (the Federal Kidnapping Act) to determine whether

the statute’s parental exemption from criminal liability

applied to a biological mother whose parental rights had been

legally terminated. The district court had dismissed the indict-

ment, holding that the plain meaning of the term "parent"

encompassed a "biological parent," and therefore the biologi-

cal mother who had abducted her own children was not crimi-

nally liable despite the termination of her parental rights. In

affirming that ruling, we noted that the government contended

that the statutory term was ambiguous and that the govern-

ment argued for a more restrictive definition. However, we

rejected this argument, holding instead that the term was

unambiguous. Among other reasons, we explained:

Notwithstanding the government’s reference to

Black’s Law Dictionary for the proposition that the

word "parent" is susceptible of some expansive vari-

ation in its exact definition, this Court finds no basis

for contracting the definition to exclude one who

begets the child. A state court, pursuant to its author-

ity to oversee domestic relations matters, may termi-

nate parental rights but it may not alter the identity

of a biological parent.

Id. at 153.9

9

Subsequent to our decision, Congress added subsection (h) to § 1201

to specify: "As used in this section, the term ‘parent’ does not include a

person whose parental rights with respect to the victim of an offense under

this section have been terminated by a final court order."

18 UNITED STATES v. THOMPSON-RIVIERE

Sheek is instructive here. Like "parent," the term "father"

has different meanings depending on the manner in which it

is modified. See generally Black’s Law Dictionary, at 640-41

(8th ed. 2004) (defining "father" in a variety of ways depend-

ing on modifying language). However, nothing in § 1403(a)

modifies the term. Rather, § 1403(a) plainly states that the

right to citizenship arises if, among other things, the "father"

is a United States citizen at the time of the birth. We agree

with the Second Circuit that "the ordinary meaning of ‘father’

is a male parent," Connolly II, 552 F.3d at 90, and as we made

clear in Sheek, the term "parent" ordinarily designates the bio-

logical parent. Accordingly, we find that the term "father" in

§ 1403(a) unambiguously includes the biological father. See

generally Gonzales v. Carhart, 127 S. Ct. 1610, 1630 (2007)

("In interpreting statutory texts courts use the ordinary mean-

ing of terms unless context requires a different result.").

Our interpretation is bolstered by the fact that in other

derivative-citizenship statutes that (like § 1403(a)) are part of

the Immigration and Nationality Act of 1952, Congress

expressly mandated legitimacy requirements for children born

out-of-wedlock. Specifically, in 8 U.S.C. § 1409(a), Congress

legislated that certain derivative-citizenship provisions codi-

fied in 8 U.S.C. §§ 1401 and 1408 apply "to a person born out

of wedlock" only if:

(1) a blood relationship between the person and the

father is established by clear and convincing evi-

dence,

(2) the father had the nationality of the United States

at the time of the person’s birth,

(3) the father (unless deceased) has agreed in writing

to provide financial support for the person until the

person reaches the age of 18 years, and

(4) while the person is under the age of 18 years—

UNITED STATES v. THOMPSON-RIVIERE 19

(A) the person is legitimated under the law of the

person’s residence or domicile,

(B) the father acknowledges paternity of the person

in writing under oath, or

(C) the paternity of the person is established by adju-

dication of a competent court.

Because Congress has not mandated such requirements for

§ 1403(a), we may presume that Congress intended to draw a

distinction between the "fathers" within the scope of

§ 1409(a) and § 1403(a). See Allison Engine Co. v. United

States ex rel. Sanders, 128 S. Ct. 2123, 2129-30 (2008)

("[W]hen Congress includes particular language in one sec-

tion of a statute but omits it in another section of the same

Act, it is generally presumed that Congress acts intentionally

and purposely in the disparate inclusion or exclusion." (cita-

tion and quotation marks omitted)); Connolly II, 552 F.3d at

90 ("Where Congress has wished to distinguish fathers of

children born out of wedlock in Title 8, it has not shied away

from express language to that effect.").

In light of our conclusion that the term "father" in

§ 1403(a) is unambiguous, our inquiry into its meaning has

come to an end. This is so even in spite of the fact that the

government argues that our opinion is contrary to agency

interpretation. See, e.g., Brown v. Gardner, 513 U.S. 115, 122

(1994) ("A regulation’s age is no antidote to clear inconsis-

tency with a statute, and the fact . . . that [a regulation] flies

against the plain language of the statutory text exempts courts

from any obligation to defer to it.").

IV

Thompson-Riviere has made a credible assertion of legal

innocence by presenting objective evidence that may prove he

is a United States citizen under § 1403(a). Because the district

20 UNITED STATES v. THOMPSON-RIVIERE

court balanced the other plea withdrawal factors in

Thompson-Riviere’s favor and specifically denied the plea

withdrawal motion based on its contrary conclusion regarding

legal innocence, we hold that the district court abused its dis-

cretion. Therefore, we vacate the judgment and remand with

instructions for the district court to permit Thompson-Riviere

to withdraw his guilty plea.

VACATED AND REMANDED