           Case: 18-10376    Date Filed: 12/10/2018   Page: 1 of 6


                                                          [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 18-10376
                        Non-Argument Calendar
                      ________________________

                  D.C. Docket Nos. 1:17-cv-23432-PAS,
                        1:15-cr-20985-PAS-1


MARIO JAVIER CEDENO-GONZALEZ,

                                                           Petitioner-Appellant,

                                   versus
UNITED STATES OF AMERICA,
                                                          Respondent-Appellee.


                     __________________________

               Appeal from the United States District Court
                   for the Southern District of Florida
                     _________________________

                            (December 10, 2018)

Before WILSON, WILLIAM PRYOR and GRANT, Circuit Judges.

PER CURIAM:
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      Mario Cedeno-Gonzalez pleaded guilty to one count of mail fraud under 18

U.S.C. § 1341. The district court denied Cedeno-Gonzalez’s motion to vacate his

27-month sentence under 28 U.S.C. § 2255. Cedeno-Gonzalez now appeals,

arguing that his conviction is invalid because his counsel furnished ineffective

assistance under Padilla v. Kentucky, 559 U.S. 356 (2010) by failing to explain to

him that he was pleading guilty to an aggravated felony that would not only render

him removable, but would disqualify him from almost every form of immigration

relief, making his removal virtually certain. Cendeno-Gonzalez also argues that

the district court erred in not conducting an evidentiary hearing on his § 2255

motion. We disagree and affirm.

                                         I.

      In an appeal from a § 2255 proceeding, this Court reviews legal conclusions

de novo and factual findings for clear error. Osley v. United States, 751 F.3d 1214,

1222 (11th Cir. 2014). A claim of ineffective assistance of counsel is a mixed

question of law and fact reviewed de novo. Id. To establish ineffective assistance

of counsel, a defendant must show (1) his counsel’s performance was deficient and

(2) the deficient performance prejudiced his defense. See Strickland v.

Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984). We address each

prong, in reverse order.




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      To establish prejudice, the defendant must show “there is a reasonable

probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.” Strickland, 466 U.S. at 694, 104 S. Ct. at

2068. In the context of a guilty plea, the defendant must show a reasonable

probability that he would not have pleaded guilty and would have insisted on going

to trial. Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 370 (1985). Post-hoc

assertions from a defendant about how he would have pleaded but for his

attorney’s deficiencies are generally insufficient. See Lee v. United States, 137 S.

Ct. 1958, 1967 (2017). Instead, contemporaneous evidence should be given the

most weight. Id. When a defendant pleads guilty, his declarations under oath

carry a strong presumption of truth. Winthrop-Redin v. United States, 767 F.3d

1210, 1215 (11th Cir. 2014).

      Cedeno-Gonzalez has not established prejudice. Any defect in his counsel’s

performance was cured by the plea agreement and plea colloquy. First, the plea

agreement contained a specific paragraph explaining the possible immigration

consequences of the plea. The agreement stated that Cedeno-Gonzalez wished to

plead guilty “regardless of any immigration consequences,” including “automatic

removal from the United States.”

      Second, during the plea colloquy, the district court specifically asked

Cedeno-Gonzalez if he understood the immigration consequences of the plea:


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      And the first is that because you are not a citizen of the United States,
      you would be subject to deportation back to Venezuela, and you
      would not be able to return without the express written permission of
      the appropriate person in the Department of Homeland Security. Are
      you aware of that fact?

Cedeno-Gonzalez responded that he understood. When asked whether he

understood that he “will never be able to return to the United States,” he responded

that he understood. Cedeno-Gonzalez testified that he understood the terms of the

plea agreement, and that he had the opportunity to read through every paragraph

before signing it.

      Cedeno-Gonzalez was given sufficient notice that he was subject to

“automatic removal from the United States” and “would not be able to return.” His

knowledge of the immigration consequences at the time of his plea indicate that he

would have pleaded guilty even if his lawyer had informed him that deportation

was virtually certain. See Hill, 474 U.S. at 59–60, 106 S. Ct. at 370–71.

      Next, “[w]hile we undertake a cursory examination of the performance of

[Cedeno-Gonzalez’s] counsel under the ‘performance prong’ of Strickland, we

note at the outset that we may decline to reach the performance prong of the

ineffective assistance test if convinced that the prejudice prong cannot be

satisfied.” Borden v. Allen, 646 F.3d 785, 818 (11th Cir. 2011) (internal quotation

marks omitted). In Padilla v. Kentucky, the Supreme Court held that, to meet this




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standard, “counsel must inform her client whether his guilty plea carries a risk of

deportation.” 559 U.S. 356, 374, 130 S. Ct. 1473, 1486 (2010).

      Cedeno-Gonzalez acknowledged under oath at the plea colloquy, and

concedes on appeal, that his counsel advised him of a risk of deportation. Having

failed to establish prejudice, we need not decide whether, under the circumstances,

this advice was constitutionally deficient under Padilla. “[T]here is no reason for a

court deciding an ineffective assistance of counsel claim . . . to address both

components of the inquiry if the defendant makes an insufficient showing on one.”

Strickland, 466 U.S. at 697, 104 S. Ct. at 2069.

                                           II.

      Cedeno-Gonzalez next argues that he was entitled to an evidentiary hearing

on his § 2255 motion. We disagree. A district court’s denial of an evidentiary

hearing on a § 2255 motion is reviewed for abuse of discretion. Winthrop-Redin,

767 F.3d at 1215. A petitioner is entitled to an evidentiary hearing if he alleges

facts that, if true, would entitle him to relief. Id. at 1216. But the district court

need not hold a hearing if the allegations are affirmatively contradicted by the

record. Id. As discussed, the record affirmatively refutes Cedeno-Gonzalez’s

claim for prejudice. The district court’s denial of an evidentiary hearing was thus

not an abuse of discretion.




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      The district court did not err in denying Cedeno-Gonzalez’s § 2255 claim or

in not conducting an evidentiary hearing. Accordingly, we affirm.

      AFFIRMED.




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