                                                                             FILED
                            NOT FOR PUBLICATION                               APR 10 2012

                                                                         MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                        U.S . CO U RT OF AP PE A LS




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                         No. 11-55244

              Plaintiff - Appellee,               D.C. Nos.    3:10-cv-01852-IEG
                                                               3:07-cr-03475-IEG-1
  v.

CARLOS SOTO-LOPEZ, AKA Carlos                     MEMORANDUM *
Mendoza-Camacho, AKA Carlos Soto,
AKA Manuel Urias-Castro,

              Defendant - Appellant.



                    Appeal from the United States District Court
                       for the Southern District of California
                    Cindy K. Jorgenson, District Judge, Presiding

                              Argued February 7, 2012
                              Submitted April 6, 2012
                                Pasadena, California

Before: REINHARDT, WARDLAW, and CALLAHAN, Circuit Judges.

       Carlos Soto-Lopez appeals the district court's denial of his 28 U.S.C. y 2255

habeas petition, in which he requested that the district court vacate his sentence.


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

                                           1
Soto-Lopez argues that his sentence should be vacated because he received

ineffective assistance of counsel from attorney Christian De Olivas, who advised

him to reject a favorable 'fast-tracµ' plea offer. The district court dismissed Soto-

Lopez's petition, finding that the facts alleged by Soto-Lopez did 'not me[e]t his

burden to overcome the strong presumption that counsel's conduct fell 'within the

wide range of professional assistance.'' Soto-Lopez v. United States, No.

07CR3475-IEG, 2011 WL 176026, at *4 (S.D. Cal. Jan. 19, 2011) (quoting

Stricµland v. Washington, 466 U.S. 668, 689 (1984)). The district court granted a

certificate of appealability.

       We have jurisdiction over Soto-Lopez's timely appeal. 28 U.S.C. y 2253(c).

We review the district court's denial of Soto-Lopez's y 2255 petition for a writ of

habeas corpus de novo. United States v. Fredman, 390 F.3d 1153, 1156 (9th Cir.

2004). Because 'a district court may summarily dismiss a y 2255 motion only if

the allegations in the motion, when viewed against the record, do not give rise to a

claim for relief or are palpably incredible or patently frivolous,' United States v.

Withers, 638 F.3d 1055, 1062-63 (9th Cir. 2011) (citation omitted), we reverse.

       As the Supreme Court recently confirmed, '[d]efendants have a Sixth

Amendment right to counsel, a right that extends to the plea-bargaining process.'

Lafler v. Cooper, No. 10-209, - S. Ct. --, 2012 WL 932019, at *5 (Mar. 21, 2012).


                                           2
The right to effective assistance of counsel in evaluating a plea offer is not

contingent on whether a defendant ultimately accepts or rejects a plea. See id. To

prove ineffective assistance during the plea phase of a prosecution, a petitioner

''must demonstrate gross error on the part of counsel. . . .'' Turner v. Calderon,

281 F.3d 851, 880 (9th Cir. 2002) (quoting McMann v. Richardson,

397 U.S. 759, 772 (1970)). 'Counsel cannot be required to accurately predict what

the jury or court might find, but he can be required to give the defendant the tools

he needs to maµe an intelligent decision.' Id at 881.

      Citing Turner v. Calderon, the district court found that Soto-Lopez had the

tools he needed to maµe an intelligent decision about rejecting the plea deal.1 See

Soto-Lopez, 2011 WL 176026, at *4. However, the facts here are easily

distinguishable from Turner, where 'counsel and Turner chose to proceed to trial


      1
         In finding that Soto-Lopez had the tools he needed to maµe an intelligent
decision, the court relied in part on evidence that, before Soto-Lopez was
represented by De Olivas, Soto-Lopez's court-appointed counsel had explained to
him that if he rejected the plea he would be indicted for illegal reentry and would
face a Guidelines range substantially higher than the 48 months the government
had offered. That Soto-Lopez was properly advised by the Federal Defenders
before he was represented by De Olivas does nothing to demonstrate that De
Olivas provided effective assistance. Soto-Lopez's ineffective assistance claim
centers on whether De Olivas's 'representation fell below an objective standard of
reasonableness.' Stricµland, 466 U.S. at 688. The Federal Defenders' performance
is irrelevant to this inquiry, especially because during the time he represented Soto-
Lopez, De Olivas advised him that the Federal Defenders had provided the wrong
advice.

                                           3
based on counsel's defense strategy and presumably sincere prediction that the jury

would not award a sentence of death,' Turner, 281 F.3d at 881. Soto-Lopez has

sufficiently alleged facts that overcome the presumption that De Olivas's advice

was based on a sincere trial strategy. He has alleged that, as a result of

representations by an inexperienced lawyer who was concurrently engaged in a

dizzying range of unprofessional conduct, he rejected a fast-tracµ plea, jettisoned

his court-appointed attorney, and ultimately pleaded guilty to a much more serious

charge than set forth in the plea agreement he had rejected, with no plea agreement

in place.

      Soto-Lopez alleges that De Olivas--operating in a district court in which he

had very little experience--persuaded Soto-Lopez to reject both his court-

appointed lawyer and the government's 48-month fast-tracµ deal, and instead pay

ü4,000 to De Olivas, representing that he could secure a 24- to 30-month deal. By

rejecting the fast-tracµ deal, Soto-Lopez's statutory maximum exposure increased

from 54 months for three y 1325 charges to twenty years for one y 1326 charge.

While the y 1326 charge was pending, De Olivas filed no dispositive motions, and

Soto-Lopez ultimately pleaded guilty to the y 1326 charge with no plea agreement

in place.




                                           4
      De Olivas had little basis for recommending that Soto-Lopez reject the fast-

tracµ offer beyond a desire to persuade Soto-Lopez to retain his services in place of

the Federal Defenders. There is no evidence that De Olivas had any experience

with persuading prosecutors in the Southern district to improve plea agreements,

no indication that De Olivas µnew of any legal defense that Soto-Lopez could

utilize at trial, and no evidence that --at the time he advised Soto-Lopez to reject

the plea offer--De Olivas µnew of any reason Soto-Lopez could reasonably expect

the government to offer him a 24- or 30-month plea deal when he faced a

minimum 77-month sentence under the Guidelines.

      These facts must be considered in combination with a petition filed by the

Standing Committee on Discipline for the Southern District ('disciplinary

petition') that led to De Olivas's suspension during the pendency of Soto-Lopez's

sentencing, and which details De Olivas's systematic unprofessional conduct in the

Southern District of California. While 'the fact that an attorney is suspended or

disbarred does not, without more, rise to the constitutional significance of

ineffective counsel under the Sixth Amendment,' United States v. Mouzin, 785

F.2d 682, 696-97 (9th Cir. 1986), 'counsel's disbarment or suspension may raise

doubts about his competence,' United States v. Ross, 338 F.3d 1054, 1056 (9th Cir.

2003). The disciplinary petition charges De Olivas with unprofessional conduct in


                                          5
other cases, including maµing false statements, and conduct that 'plac[ed his]

financial motivations above the interests of his client and expos[ed] his client to

prejudice and delay.' The district court itself noted at sentencing that 'Soto-Lopez

'probably [was] the victim of why [De Olivas was] no longer practicing.'2

Under Stricµland, we must try 'to reconstruct the circumstances of counsel's

challenged conduct, and to evaluate the conduct from counsel's perspective at the

time.' Stricµland, 466 U.S. at 689. When the serious doubts about De Olivas's

professionalism and honesty occasioned by his contemporaneous conduct are




      2
       Soto-Lopez further alleges that after De Olivas's conduct was exposed, the
government apparently recognized that De Olivas had defrauded a number of
defendants who rejected fast-tracµ plea deals on De Olivas's advice, and
consequently re-extended fast-tracµ plea offers to these defendants. At argument,
the government offered no convincing explanation as to why it treated Soto-Lopez
differently from several of De Olivas's other former clients.

                                           6
combined with the facts of his representation of Soto-Lopez, the record supports

Soto-Lopez's claim that De Olivas provided him ineffective assistance of counsel.3

      When a defendant alleges that a violation of the right to counsel resulted in

the defendant's rejection of a favorable plea offer, the

      defendant must show that but for the ineffective advice of counsel
      there is a reasonable probability that the plea offer would have been
      presented to the court (i.e., that the defendant would have accepted the
      plea and the prosecution would not have withdrawn it in light of
      intervening circumstances), that the court would have accepted its
      terms, and that the conviction or sentence, or both, under the offer's
      terms would have been less severe than under the judgment and
      sentence that in fact were imposed.'




      3
        The dissent asserts that Soto-Lopez's decision against withdrawing his
guilty plea after learning that De Olivas was suspended from practice indicates that
Soto-Lopez made an informed, strategic choice to reject the earlier fast-tracµ deal
offer. This is not so. By the time he learned that De Olivas had been suspended,
Soto-Lopez had no reasonable choice but to proceed to sentencing. The
government had withdrawn the fast-tracµ plea offer, and Soto-Lopez had no legal
defense to the y 1326 violation with which he was now charged. With nothing to
gain by withdrawing his guilty plea (and the possibility of losing any acceptance of
responsibility credits at sentencing), Soto-Lopez had no option to proceed other
than he did. The decision not to withdraw his guilty plea is equally irrelevant to
the prejudice inquiry. That Soto-Lopez did not withdraw the guilty plea months
after the fast-tracµ plea offer had been rescinded provides no support for the
dissent's claim that without De Olivas's intervention--which eliminated the
possibility of the fast-tracµ deal--Soto-Lopez would have been put in the same
position.

                                           7
Lafler, 2012 WL 932019, at *5. The district court did not address the question of

prejudice because it concluded that De Olivas's representation was not deficient.

The government's brief liµewise does not address prejudice.

      Soto-Lopez has alleged sufficient facts to show prejudice: If De Olivas had

not counseled Soto-Lopez that he could receive a 24-or 30-month sentence, and

instead been adequately advised as to the dramatic differences in potential

sentences, Soto-Lopez would not have rejected the government's plea based on

three counts of illegal entry in violation of 8 U.S.C. y 1325. Until De Olivas

advised Soto-Lopez to withdraw from the deal, both the government and Soto-

Lopez were taµing the procedural steps towards satisfying the terms of the fast-

tracµ deal. If Soto-Lopez had not abruptly changed course once he encountered De

Olivas, he would then have received the benefit of the 48-month plea offer, and in

any event could have received no more than the statutory maximum of 54 months

for the three counts of illegal entry. There is no evidence that the district court had

cause to exercise its discretion to reject fast-tracµ plea agreements.

      In accordance with 28 U.S.C. y 2255(b), Soto-Lopez is entitled to a prompt

evidentiary hearing as to his claims of ineffective assistance. We therefore remand

and direct the district court to maµe findings of fact concerning Soto-Lopez's

allegations. If Soto-Lopez's factual allegations are determined to be true,


                                           8
      the correct remedy in these circumstances . . . is to order the
      [Government] to reoffer the plea agreement. Presuming respondent
      accepts the offer, the [district] court can then exercise its discretion in
      determining whether to vacate the convictions and resentence
      respondent pursuant to the plea agreement, to vacate only some of the
      convictions and resentence respondent accordingly, or to leave the
      convictions and sentence . . . undisturbed.

Lafler, 2012 WL 932019 at *12; Fed.R.Crim.P. 11(c)(3)(A), (c)(5) (giving district

courts the right to reject a charge bargain of the type specified in Rule

11(c)(1)(A)).

      REVERSED and REMANDED with instructions.




                                           9
                                                                              FILED
United States v. Soto-Lopez, No. 11-55244                                      APR 10 2012

                                                                           MOLLY C. DWYER, CLERK
CALLAHAN, Circuit Judge, dissenting:                                        U.S . CO U RT OF AP PE A LS




      I respectfully dissent. Even if the district court were to determine on remand

that all of Soto-Lopez's allegations are true, those allegations are not sufficient to

satisfy either the deficient performance or the prejudice prongs of Stricµland v.

Washington, 466 U.S. 668 (1984). That conclusion would have been correct

before the Supreme Court's recent decision in Lafler v. Cooper, No. 10-209, -- S.

Ct. --, 2012 WL 932019 (Mar. 21, 2012), and it remains correct today.

                                    I. Performance

      Our decision in Turner v. Calderon, 281 F.3d 851 (9th Cir. 2002), which the

majority properly relies on in its disposition, holds that, in the plea context,

'[c]ounsel cannot be required to accurately predict what the jury or court might

find, but he can be required to give the defendant the tools he needs to maµe an

intelligent decision.' Turner, 281 F.3d at 881; see also Lafler, 2012 WL 932019,

at *12 ('[A]n erroneous strategic prediction about the outcome of a trial is not

necessarily deficient performance.'). In Turner, the defendant alleged that his

lawyer was ineffective because, among other things, the lawyer told him that the

worst sentence he faced was 15 years to life, and that his case was not a 'death

penalty' case. As a result, the defendant turned down a second-degree murder plea

offer and went to trial, where he was convicted of first-degree murder and robbery
and later sentenced to death. Id. at 879-81. We held that the defendant 'was

informed that he was subject to the death penalty, and of the plea offer,' in contrast

to cases where an attorney failed to advise his client of a plea offer or misled his

client about the law. 'That counsel and [the defendant] chose to proceed to trial

based on counsel's defense strategy and presumably sincere prediction that the jury

would not award a sentence of death, does not demonstrate that Turner was not

fully advised of his options.' Id. at 881.

      In this case, Soto-Lopez had the information he needed to maµe an informed

decision. Soto-Lopez's federal defender told him of the government's fast-tracµ

plea offer, and told Soto-Lopez that if he rejected the fast-tracµ plea offer, his

Sentencing Guidelines range would be much higher. Soto-Lopez nonetheless

made a strategic decision to reject the binding 48-month sentence and roll the dice

on a shorter sentence. The district court already found that Soto-Lopez's decision

was not the result of 'any affirmative misrepresentations of law or fact' by De

Olivas, or by interference with Soto-Lopez's 'previous understanding of the

potential consequences of failing to obtain a new plea deal.'1 Critically, Soto-

      1
        Compare Nunes v. Miller, 350 F.3d 1045, 1049, 1054 (9th Cir. 2003)
(finding ineffective assistance where counsel misinformed his client that
government's plea offer was twice as long as what the government was actually
offering); United States v. Blaylocµ, 20 F.3d 1458, 1465-66 (9th Cir. 1994)
(finding deficient performance where counsel did not inform defendant of plea

                                             2
Lopez declined the district court's offer to withdraw his guilty plea even after he

learned of De Olivas's suspension from practice.

      The majority dismisses as irrelevant the advice Soto-Lopez received from

his federal defender, reasoning that the court should looµ only to what De Olivas

did or did not do. Mem. Disp. at 3 n.1. In the majority's view, this narrow focus is

warranted because De Olivas told Soto-Lopez that his federal defender had given

him bad advice. Id. However, we cannot evaluate a lawyer's performance in a

vacuum, but instead must looµ to the totality of circumstances. See Stricµland, 466

U.S. at 688 ('[T]he performance inquiry must be whether counsel's assistance was

reasonable considering all the circumstances.'). A defendant who is as familiar

with the courts as Soto-Lopez,2 and who receives conflicting advice from two

lawyers, is highly unliµely to taµe at face value the advice of only one of them.

Whatever De Olivas said, Soto-Lopez µnew that he ran some risµ of receiving a

higher sentence if he rejected the fast-tracµ plea deal.




offer); United States v. Day, 969 F.2d 39, 42-44 (3d Cir. 1992) (finding deficient
performance where counsel affirmatively misrepresented the maximum sentence
and did not tell the defendant that he would be classified as a career offender at
sentencing).
      2
       Soto-Lopez previously had been removed from the United States after
being convicted of an aggravated drug trafficµing felony.

                                           3
      To be sure, the record contains little evidence that De Olivas had a strong

basis for promising Soto-Lopez a 24- to 30-month sentence. But that fact shows

only that De Olivas was an imperfect lawyer, not that he rendered constitutionally

deficient assistance. See Turner, 281 F.3d at 881 (defendant has no 'right to

receive an accurate prediction of the outcome of his case'); Lafler, 2012 WL

932019, at *12 ('[A]n erroneous strategic prediction about the outcome of a trial is

not necessarily deficient performance.').

      The majority tries to fill this gap by pointing to De Olivas's suspension from

practice in the Southern District of California for unprofessional conduct. Mem.

Disp. at 5-6. While the suspension certainly raises doubts about De Olivas's

general competence, it does not show that he was deficient in this case. As the

district court said, there is no 'direct connection between Mr. De Olivas' advice

and the Standing Committee's petition. The petition mentions that the Standing

Committee became aware of 'acts of alleged incompetence and malpractice,' but

states that the Standing Committee chose not to include such matters in the

petition, instead limiting the petition to unprofessional conduct.'

      The majority also asserts that 'there is no evidence that De Olivas had any

experience' securing 24- to 30-month plea offers or sentences for other defendants.

Mem. Disp. at 5. However, the fact that De Olivas subsequently obtained a 30-


                                            4
month sentence, following a fast-tracµ plea deal, for a similarly-situated defendant

shows at the very least that such a sentence was legally possible.

      Finally, we must be mindful of our obligation to give the lawyer the benefit

of the doubt. See Stricµland, 466 U.S. at 689 ('A court must indulge a strong

presumption that counsel's conduct falls within the wide range of reasonable

professional assistance.'); Premo v. Moore, -- U.S. --, 131 S. Ct. 733, 741 (2011)

(explaining that 'strict adherence to the Stricµland standard [is] all the more

essential when reviewing the choices an attorney made at the plea bargain

stage . . . . In determining how searching and exacting their review must be, habeas

courts must respect their limited role in determining whether there was manifest

deficiency in light of information then available to counsel.').

                                     II. Prejudice

      The majority concludes that Soto-Lopez 'has alleged sufficient facts to show

prejudice' because, if Soto-Lopez had never met De Olivas, he 'would not have

rejected the government's plea,' he and the government would have finalized the

fast-tracµ deal, and the district court would not have 'had cause to exercise its

discretion to reject' the deal. Mem. Disp. at 7-8.

      The record does not support these conclusions. Although Soto-Lopez

asserted in his 28 U.S.C. y 2255 motion that he 'would have accepted the


                                           5
Government's 48-month plea deal' if 'De Olivas had not lied' to him, he declined

the opportunity to withdraw his open guilty plea after he learned of De Olivas's

suspension from practice. In addition, nothing in the district court's decision

suggests that it necessarily would have accepted the fast-tracµ plea deal for Soto-

Lopez, who previously had been convicted of an aggravated felony.

                                   III. Conclusion

      Even if we taµe all of Soto-Lopez's allegations to be true, there is

insufficient evidence that he received ineffective assistance of counsel. I therefore

would affirm the district court.




                                          6
