                                     PUBLISHED

                      UNITED STATES COURT OF APPEALS
                          FOR THE FOURTH CIRCUIT


                                      No. 18-6833


UNITED STATES OF AMERICA,

                    Plaintiff - Appellee,

             v.

SHERIF AKANDE, a/k/a Sharif Akande, a/k/a Reef, a/k/a Reef Wall,

                    Defendant - Appellant.


Appeal from the United States District Court for the District of Maryland, at Greenbelt.
Roger W. Titus, Senior District Judge. (8:12-cr-00288-RWT-2; 8:16-cv-02666-RWT)


Argued: January 30, 2020                                       Decided: April 20, 2020


Before MOTZ, WYNN, and THACKER, Circuit Judges.


Reversed and remanded by published opinion. Judge Motz wrote the opinion, in which
Judge Wynn and Judge Thacker joined.


ARGUED: Joel M. Bondurant, Jr., BONDURANT LAW, PLLC, Huntersville, North
Carolina, for Appellant. David Ira Salem, OFFICE OF THE UNITED STATES
ATTORNEY, Greenbelt, Maryland, for Appellee. ON BRIEF: Robert K. Hur, United
States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland,
for Appellee.
DIANA GRIBBON MOTZ, Circuit Judge:

       Sherif Akande pleaded guilty to fraud offenses without entering a plea agreement.

The district court sentenced him to 199 months’ imprisonment, and we affirmed. Akande

then moved under 28 U.S.C. § 2255 to vacate his conviction, contending that he received

constitutionally ineffective assistance from his counsel. The district court denied the

§ 2255 motion. We granted a certificate of appealability and now reverse the judgment of

the district court and remand for further proceedings.



                                             I.

       In May 2012, a federal grand jury indicted Akande on counts arising from a bank

fraud conspiracy. Akande moved to suppress evidence recovered from his residence,

which the district court denied. He then pleaded guilty to all charges without reaching any

plea agreement with the prosecution (an “open plea”).

       The district court held a hearing and conducted a standard plea colloquy. During

the colloquy, the court listed the many rights Akande would waive with his open plea,

including the presumption of innocence, the full panoply of trial rights, and the right to

appeal trial issues; Akande responded that he understood. The court concluded the

colloquy by finding that Akande’s plea was valid and accepting it.

       Shortly thereafter, Akande sought to withdraw his plea. His counsel attempted to

persuade the Government to consent to this; after waiting on the Government for several

months with no response, defense counsel filed a motion to withdraw the plea. The

Government opposed the motion, and the district court held a hearing on it. At that hearing,

                                             2
Akande’s counsel explained that after the court denied Akande’s suppression motion,

Akande and counsel “engaged in extensive discussions regarding a plea agreement or a

plea that had been offered by the government.” Plea counsel reported that in their

discussions, Akande emphasized that his “appellate rights . . . were very important” to him.

Counsel further explained that in response she told Akande that if he “pled open to the

court,” “he would be preserving all of his appellate rights.”

       But, as Akande’s counsel admitted to the district court at the hearing to withdraw

the plea, the advice that Akande could preserve all of his appellate rights by entering an

open plea was “not a correct statement of the law.” Rather, in order to plead guilty while

preserving his appellate rights, Akande would have had to enter a conditional plea under

an agreement with the prosecution, which counsel believed “would probably not have even

been possible” because the suppression ruling “was not dispositive,” see United States v.

Fitzgerald, 820 F.3d 107, 110 n.1 (4th Cir. 2016). Counsel also explained at this hearing

that she doubted that Akande understood from the plea colloquy that her advice had been

wrong, and that contrary to what she had told him, by entering an open plea, Akande “was

giving up the right to [appeal] the pretrial suppression ruling.”

       Plea counsel explained that when Akande called her the day after pleading guilty,

but before sentencing, he reaffirmed that he “want[ed] to maintain all of [his] appellate

rights.” She “wasn’t really sure what he was alluding to,” but “after some discussion,” it

became clear that Akande had “relied on [her] statement to him that he would maintain all

of those rights” when he entered an open plea. Thus, as counsel explained, Akande “made

his decision to plead guilty based on his ability to maintain his constitutional challenge to

                                              3
the search of his home.” But in fact, Akande could maintain his appellate right to challenge

the suppression ruling only by proceeding to trial. Counsel informed the court that once

Akande understood that choice, he asked to go to trial, and she accordingly filed the motion

to withdraw Akande’s guilty plea.

       The district court then began to consider the merits of that motion. In the course of

this discussion, counsel stated that Akande asserted his actual innocence, but she

questioned whether he should testify. Noting that actual innocence was one factor in

deciding whether to permit a defendant to withdraw a guilty plea, the district court asked

how Akande would show his innocence without testifying. Counsel responded that Akande

was “prepared to go forward with the other factors” and proceeded to discuss them. After

a brief recess, plea counsel moved to withdraw from representing Akande. The district

court granted her motion, continued the hearing on Akande’s motion to withdraw the guilty

plea, and appointed new counsel.

       Some months later, the district court held another hearing.        Akande’s newly

appointed counsel first withdrew Akande’s motion to withdraw the guilty plea, explaining

that Akande was “not asserting a claim of innocence.” The district court then turned to

sentencing. In seeking an adjustment for acceptance of responsibility, sentencing counsel

stated that Akande filed his motion to withdraw his plea “only upon a misunderstanding”

as to “his right to appeal.” The court denied the adjustment and sentenced Akande to 199

months’ imprisonment. Akande appealed his sentence, and we affirmed. United States v.

Akande, 624 F. App’x 94 (4th Cir. 2015).



                                             4
       Akande moved for relief under 28 U.S.C. § 2255. He contended, inter alia, that his

plea counsel rendered constitutionally ineffective assistance. Without holding a hearing,

the district court denied the § 2255 motion, concluding that Akande could not show

prejudice arising from counsel’s erroneous advice.

       Akande noted an appeal, and we granted a certificate of appealability. 1 We review

the denial of a § 2255 motion de novo. United States v. Poindexter, 492 F.3d 263, 267 (4th

Cir. 2007). When, as here, the district court denies relief without an evidentiary hearing,

we construe the facts in the movant’s favor. Id.



                                             II.

       To establish a violation of the Sixth Amendment right to the effective assistance of

counsel, a defendant must show that counsel’s performance was constitutionally deficient

and caused him prejudice. Strickland v. Washington, 466 U.S. 668, 687 (1984). The

Government does not meaningfully dispute that plea counsel’s erroneous advice amounted

to constitutionally deficient performance.

       Examination of the record explains why any such argument would be meritless. In

her motion to withdraw Akande’s guilty plea, and in her testimony during the district

court’s hearing on that motion, plea counsel detailed the inaccurate advice she gave

Akande. Counsel told Akande that while he could not reserve the right to appeal the



       1
         Akande also sought, and we granted, a certificate of appealability on a claim that
his sentencing counsel provided constitutionally ineffective assistance. Given our holding
with respect to plea counsel, we need not and do not consider that claim here.
                                             5
suppression ruling in a conditional plea agreement, he could challenge the admission of the

evidence he sought to exclude in either of two other ways. She advised Akande that if he

went to trial, he could argue that under Federal Rule of Evidence 404(b), “the facts

shouldn’t be admissible against him since he wasn’t indicted” based on any of the

documents found in his home. In the alternative, counsel explained that if Akande “pled

open to the court, he would be allowed and he would be preserving all of his appellate

rights,” such that he could challenge the suppression ruling itself on appeal. That advice,

as counsel acknowledged, was “not a correct statement of the law,” because a defendant

cannot challenge a pretrial suppression ruling on appeal after entering an open plea, see

Tollett v. Henderson, 411 U.S. 258, 267 (1973). Plea counsel’s misadvice addressed how

and when Akande could challenge the admission of the evidence at issue: she told him that

he could not do so via a conditional guilty plea pursuant to an agreement with the

Government, but he could do so by entering an open plea.

       The Government suggests that plea counsel also advised Akande that a suppression

appeal would not succeed, and consequently that forgoing such an appeal did not cause any

prejudice. But the Government has presented no evidence to support this theory. 2 And in

any event, even if we agreed with the Government’s reading of counsel’s testimony, the



       2
         The only “evidence” the Government offers in support of this contention is
surprisingly misleading. The Government repeatedly misquotes plea counsel’s testimony,
omitting the references to Fed. R. Evid. 404(b) and fusing separate sentences together, all
without notation or explanation. Response Br. at 20, 23, 28. And these are not the only
misquotes in the Government’s brief. See id. at 24 (misquoting the district court, again
without notation or explanation). We do not suggest that these alterations were
intentionally deceptive, but we do believe that they are at least disappointingly careless.
                                            6
likelihood that Akande would prevail on appeal is of no moment here. The viability of an

appeal is immaterial. The Supreme Court has repeatedly instructed that when it comes to

the Sixth Amendment, it is the right to an appeal that counts. See, e.g., Garza v. Idaho,

139 S. Ct. 738, 748 (2019) (“This Court has already rejected attempts to condition the

restoration of a defendant’s appellate rights forfeited by ineffective counsel on proof that

the defendant’s appeal had merit.”); Roe v. Flores-Ortega, 528 U.S. 470, 486 (2000);

accord Velazquez v. Superintendent Fayette SCI, 937 F.3d 151, 163 (3d Cir. 2019).

        Accordingly, we turn to the two questions at the heart of this case: whether the

district court corrected plea counsel’s error, and, if not, whether Akande has established

that the error prejudiced him.

                                            A.

        Circuit precedent holds that a defendant cannot prevail on a claim of ineffective

assistance of counsel that arises from counsel’s misadvice if, before accepting the plea,

“the district court provides an admonishment that corrects the misadvice and the defendant

expresses that he understands the admonishment.” United States v. Akinsade, 686 F.3d

248, 253 (4th Cir. 2012). 3 The Government contends that the district court’s plea colloquy

corrected counsel’s error in this case.

        The court gave two relevant admonishments during that colloquy. The district court

first informed Akande of the wide array of rights that he would forgo by entering a guilty

plea:


        3
         The Supreme Court has noted this holding but has neither embraced nor rejected
it. See Lee v. United States, 137 S. Ct. 1958, 1968 n.4 (2017).
                                             7
      THE COURT: I am now going to review with you all of the very
important rights that you will give up by pleading guilty.

        First of all, you have the absolute right to plead not guilty. No one
can make you come into court and enter a guilty plea. If you plead not guilty,
you are presumed to be innocent. That means that you cannot be found guilty
unless there is a trial at which your guilt is proven beyond a reasonable doubt.
You have the right to a trial before a jury of 12 people, all of whom would
have to agree unanimously that you were guilty. If even one of those jurors
did not find guilt, there could be no verdict of guilty entered at the conclusion
of that jury trial.

        Alternatively, if both you and the government agreed, there could be
a trial before a judge without a jury, but in either case, you would be
presumed to be innocent and it would be the government’s burden to try to
overcome that presumption with proof beyond a reasonable doubt.

       To try to do that, the government would have to call people to testify
as witnesses. They would appear here in open court. You would be present.
They would be placed under oath, and they would be subject to cross-
examination, that is, questioning by your lawyer.

      You would, of course, have the right to be represented by a lawyer
throughout the trial, and as you know, if you cannot afford to hire counsel,
the Court appoints an attorney to represent you.

       At any trial, you would have the right to testify on your own behalf if
you wanted to, but you would have the equal right to remain silent. And if
you decided not to testify, neither the jury nor the judge could hold it against
you in any way, and if you wished, the judge would tell the jury about your
right not to testify and that they can’t hold it against you in any way during
their deliberations.

        You would have the right to present a defense, to call other people to
testify, and to produce documents or other things as exhibits, and you would
have the Court’s assistance through the subpoena power in requiring people
to come to court to testify for you.

       If you were found guilty after that trial, you would have the right to
appeal to complain about any mistakes that might have been made before or
during that trial.



                                       8
                 Do you understand all of those rights that you will give up by pleading
       guilty?

                 THE DEFENDANT: Yes, ma’am.

The district court briefly returned to Akande’s appellate rights later in the colloquy:

               THE COURT: By pleading guilty, you, in essence, are giving up your
       right to complain about the conviction, that is, the determination of guilt, but
       you and the government will have the opportunity to appeal if you think
       Judge Titus makes a mistake in determining the guidelines or some other
       fashion in sentencing you.

             Do you understand that both sides have the right to appeal under those
       circumstances?

                 THE DEFENDANT: Yes, ma’am.

The Government insists that these two admonishments “unequivocally dispelled any . . .

misapprehension” Akande had as to “preservation of appellate review.” Response Br. at

20.

       A plea colloquy can correct an error like the misadvice at issue here if the district

court provides a “careful explanation” that “address[es] the particular issue underlying the

affirmative misadvice.” Akinsade, 686 F.3d at 254, 255. To cure the error, the district

court’s admonishments must be sufficiently clear and specific. When, for example, counsel

erroneously advised a defendant that a guilty plea would not expose him to a career

offender sentence, we concluded that the district court’s plea colloquy cured any prejudice

with its “careful explanation of the potential severity of the sentence,” which “specifically

informed [the defendant] of the maximum penalties he faced.” United States v. Foster, 68

F.3d 86, 88 (4th Cir. 1995). By contrast, when counsel erroneously advised the defendant

that his “crime was not categorically a deportable offense,” we held that the district court’s

                                                9
“warn[ing] that [the defendant]’s plea could lead to deportation” was too general to rectify

counsel’s misadvice. Akinsade, 686 F.3d at 254; accord United States v. Murillo, 927 F.3d

808, 819 (4th Cir. 2019).

       The district court’s warnings here, like those in Akinsade and Murillo, were too

general to cure plea counsel’s misadvice. Akinsade, 686 F.3d at 254; Murillo, 927 F.3d at

819. Akande and counsel specifically discussed appealing the suppression ruling, and

counsel advised him that an open plea would “preserv[e] all of his appellate rights.” But

unlike counsel’s specific, albeit incorrect, advice, the district court’s admonishments

broadly touched on appeals in general and did not specifically address Akande’s right to

appeal the suppression ruling. The court’s first admonishment referred to more than a

dozen rights, among them Akande’s right to “complain about any mistakes that might have

been made before or during that trial.” Akande could not reasonably be expected to

understand that a suppression ruling would fall under the broad category of “any mistakes

that might have been made before or during that trial” — particularly when Akande never

went to trial. The court’s reference in its second admonishment to Akande’s “right to

complain about the conviction, that is, the determination of guilt,” was even less tailored

to an appeal of a suppression ruling. Most nonlawyers would not understand a decision on

whether to suppress evidence, an inquiry that turns on whether police obtained the evidence

lawfully, to pertain to “the determination of guilt.” Indeed, plea counsel explained that she

did not think Akande understood from the colloquy that he was waiving his right to appeal

the suppression ruling, and that Akande called her the day after the colloquy to reiterate

that he “want[ed] to maintain all of [his] appellate rights.”

                                              10
       Given counsel’s specific misadvice, on which Akande understandably relied, the

court’s general admonishments did not amount to the “careful explanation” that

“address[es] the particular issue” necessary to cure the error. Akinsade, 686 F.3d at 254,

255 (emphasis added).

                                            B.

       Having concluded that the plea colloquy did not correct counsel’s erroneous advice,

we turn to whether Akande can show that counsel’s error caused him prejudice. “[W]hen

a defendant claims that his counsel’s deficient performance deprived him of a trial by

causing him to accept a plea, the defendant can show prejudice by demonstrating a

reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and

would have insisted on going to trial.” Lee v. United States, 137 S. Ct. 1958, 1965 (2017)

(internal quotation marks omitted). 4

       This inquiry “focuses on a defendant’s decisionmaking, which may not turn solely

on the likelihood of conviction after trial.”      Id. at 1966.    We consider collateral

consequences when they motivate a defendant’s decision, but we “look to

contemporaneous evidence to substantiate a defendant’s expressed preferences” rather than

relying solely on post hoc assertions. Id. at 1967. A defendant need not “show that going

to trial would have been the best objective strategy or even an attractive option”; he need


       4
         A defendant can also show prejudice by demonstrating that he could have
negotiated a plea agreement with terms more favorable than the consequences of the plea
he entered on counsel’s misadvice. See United States v. Swaby, 855 F.3d 233, 241 (4th
Cir. 2017). In this case, because only a trial would have preserved Akande’s right to appeal
the suppression ruling, we focus on the probability that Akande would have insisted on
proceeding to trial.
                                            11
only “show a reasonable likelihood that a person in [his] shoes would have chosen to go to

trial.” United States v. Swaby, 855 F.3d 233, 244 (4th Cir. 2017). “The decision does not

need to be optimal and does not need to ensure acquittal; it only needs to be rational.” Id.;

see also Lee, 137 S. Ct. at 1969 (“Not everyone in Lee’s position would make the choice

to reject the plea. But we cannot say it would be irrational to do so.”).

       Akande maintains that preserving his appellate rights was his “top strategic priority”

in deciding whether to plead guilty or go to trial. Opening Br. at 24. The contemporaneous

evidence here substantiates his asserted preference. In the hearing on Akande’s motion to

withdraw his guilty plea, his counsel explained that Akande considered “maintaining his

appellate rights . . . very important.” Plea counsel reported that “one of the things that

[Akande and she] had discussed at length was maintaining his appellate rights”; in fact,

Akande called her “the day after he pled guilty” to reiterate that he “want[ed] to maintain

all of [his] appellate rights.” These representations, made before the district court entered

a judgment of conviction or imposed a sentence, constitute clear contemporaneous

evidence of Akande’s overarching desire to preserve his appellate options. Given this

evidence of the great value that Akande placed on his appellate rights, the question is

whether Akande has shown the necessary probability that he would have gone to trial in

order to preserve them, had he been correctly advised.

       We believe that Akande has shown that reasonable probability. Going to trial would

have permitted Akande to appeal the suppression ruling, while entering an open plea

waived his right to appeal that issue. Based on his counsel’s erroneous advice, Akande



                                             12
entered his open plea at the expense of his “top strategic priority.” The only benefit Akande

obtained in return was a possible sentence reduction for acceptance of responsibility.

       The Supreme Court in Lee explained that a defendant may rationally prefer even a

slim chance at fulfilling his chief priority over a certain but modest sentence reduction. See

Lee, 137 S. Ct. at 1966–67 (“For example, a defendant with no realistic defense to a charge

carrying a 20-year sentence may nevertheless choose trial, if the prosecution’s plea offer is

18 years.”). In this case, going to trial would have guaranteed that Akande could fulfill

his chief priority, while entering an open plea offered him only the possibility of a similarly

modest sentence reduction. 5 Proceeding to trial would have better served Akande’s

expressed preferences, contrary to counsel’s advice. Had counsel accurately advised

Akande that he could maintain his appellate rights only by proceeding to trial, it would

have been entirely rational for him to do so. See id. at 1969; Swaby, 855 F.3d at 244.

       Akande has thus shown that plea counsel’s performance caused him prejudice. 6


       5
         At sentencing, the district court determined that Akande’s base offense level was
29 and his criminal history category was V, resulting in an advisory Guidelines range of
140 to 175 months. The acceptance of responsibility reduction that Akande sought would
have lowered his base offense level to 27, resulting in an advisory Guidelines range of 120
to 150 months, see U.S.S.G. ch. 5, pt. A (sentencing table) — and thus lowering the
advisory range by roughly two years.
       6
         We are not persuaded by the Government’s suggestion that sentencing counsel’s
motion to withdraw Akande’s earlier motion to withdraw his guilty plea bars him from
showing prejudice. Once a defendant enters a guilty plea, he may not withdraw it without
the district court’s approval, subject to six factors, including “whether the defendant has
credibly asserted his legal innocence.” United States v. Moore, 931 F.2d 245, 248 (4th Cir.
1991). The decision to enter a guilty plea in the first instance and the later decision to
withdraw a guilty plea thus involve different considerations. We cannot conclude, in light
of Lee’s focus on the defendant’s decisional calculus, that Akande’s eventual withdrawal
of his motion to withdraw his initial guilty plea precludes him from showing that, absent

                                              13
                                           III.

       Guilty pleas “are important components of this country’s criminal justice system,”

and in order to realize “the advantages that they provide to all concerned,” guilty pleas

must be “accorded a great measure of finality.” Christian v. Ballard, 792 F.3d 427, 444

(4th Cir. 2015) (internal quotation marks omitted). But the legitimacy of their role in our

criminal justice system depends on a defendant’s ability to understand the consequences of

a guilty plea in order to make an informed decision about whether to enter one. Plea

counsel’s inaccurate advice deprived Akande of this ability, and in doing so denied Akande

the Sixth Amendment right to effective assistance of counsel.

       For the foregoing reasons, we reverse the district court’s denial of Akande’s § 2255

motion and remand for further proceedings consistent with this opinion.

                                                          REVERSED AND REMANDED




plea counsel’s erroneous advice, he would not have pleaded guilty in the first place and
instead would have insisted on going to trial.
                                            14
