             Case: 11-13722    Date Filed: 03/25/2013   Page: 1 of 5

                                                            [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                                No. 11-13722
                            Non-Argument Calendar
                          ________________________

     D.C. Docket Nos. 1:10-cv-01885-RLV-AJB; 1:05-cr-00254-RLV-AJB-3



IVAN DEJESUS CHAPA,

                                                             Petitioner-Appellant,

                                     versus

UNITED STATES OF AMERICA,

                                                            Respondent-Appellee.

                          ________________________

                  Appeal from the United States District Court
                     for the Northern District of Georgia
                        ________________________

                                (March 25, 2013)

Before MARCUS, PRYOR and KRAVITCH, Circuit Judges.

PER CURIAM:

      This appeal by Ivan DeJesus Chapa presents the issue whether the Supreme

Court in Padilla v. Kentucky, 559 U.S. 356, 130 S. Ct. 1473 (2010), announced a
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new rule, which does not apply retroactively on collateral review. The district

court answered that question in the affirmative and denied Chapa’s motion to

vacate his conviction. See 28 U.S.C. § 2255. Chapa argued that counsel was

ineffective, under Padilla, for misadvising him that his plea of guilty would not

subject him to deportation. Chapa contends that Padilla applies retroactively to

invalidate his guilty plea. But the Supreme Court held recently in Chaidez v.

United States, 568 U.S.____, 133 S. Ct. 1103, 1105 (2013), that Padilla announced

a new rule, which “under the principles set out in Teague v. Lane, 489 U.S. 288,

109 S. Ct. 1060 . . . (1989), . . . does not have retroactive effect.” Because Chapa

cannot benefit from the new rule in Padilla, we affirm.

      Chapa pleaded guilty to conspiring to possess with intent to distribute at

least five kilograms of cocaine in exchange for the dismissal of two other drug

charges. At his sentencing hearing, Chapa acknowledged that he had reviewed his

presentence investigation report, which provided that he was a citizen of Mexico

and faced the possibility of removal or deportation as a result of his conviction.

Chapa objected to an enhancement to his sentence, but the district court overruled

Chapa’s objection. The district court sentenced Chapa to 148 months of

imprisonment and advised him that, after completing his sentence of

imprisonment, he would be transported to an “immigration official for appropriate




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removal proceedings from the United States.” Chapa did not move to withdraw his

plea of guilty. See Fed. R. Crim. P. 11(d).

      Chapa appealed his sentence. On the motion of the government, we

dismissed Chapa’s appeal based on the waiver in his plea agreement of a right to

appeal or collaterally attack his sentence. United States v. Chapa, No. 08-16176

(11th Cir. Dec. 8, 2009).

      Chapa filed a motion to reduce his sentence, which he later amended to add

a claim for relief under Padilla. Chapa alleged that he would not have pleaded

guilty, but for counsel’s assurances that Chapa would remain in the United States

following his conviction. The district court construed Chapa’s filing as a motion to

vacate his conviction, see 28 U.S.C. § 2255, and Chapa did not oppose the

reclassification of his motion, see Castro v. United States, 540 U.S. 375, 377, 124

S. Ct. 786, 789 (2003). The United States responded that Chapa’s postconviction

motion was also barred by the waiver in his plea agreement and, alternatively, that

in Padilla the Supreme Court announced a new rule, which does not apply on

collateral review.

      A magistrate judge recommended that the district court deny Chapa’s

motion to vacate. The magistrate judge reasoned that “Padilla announced a new

rule because not only was its conclusion not dictated by precedent existing at the

time [Chapa’s] conviction became final, its conclusion had been rejected by


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existing precedent in the Eleventh Circuit and by virtually every other court to

address the issue.” And the magistrate judge agreed with the United States that

“Padilla resolved the ‘more complex and novel question of whether the Sixth

Amendment applies at all’ to ineffective assistance claims” and that the “resolution

of that antecedent question conflict[ed] with the lower courts’ resolution of it and .

. . further indicate[d] that Padilla announced a new rule.” The magistrate judge

concluded that Chapa could not benefit from the holding in Padilla because it did

not fall within either of the two exceptions to the general prohibition against

retroactive application of a new rule. See Teague, 489 U.S. at 311–12, 109 S. Ct.

at 1075–76. The magistrate judge also concluded that Chapa’s argument about the

ineffectiveness of counsel failed under the law in effect at the time of Chapa’s

guilty plea. See Downs-Morgan v. United States, 765 F.2d 1534, 1540–41 (11th

Cir. 1985).

      The district court adopted the recommendation of the magistrate judge and

denied Chapa’s motion to vacate. The district court recognized that a “split of

authority . . . [had] developed in the state and federal courts in the year since

Padilla [had been] decided” and issued a certificate of appealability to resolve

“whether Padilla . . . announced a new rule of criminal procedure that is

retroactively applicable to cases on collateral review.”




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      The decision of the Supreme Court in Chaidez v. United States resolves the

question presented for our review. In Chaidez, the Court concluded that Padilla

announced a new rule that does not apply retroactively to cases on collateral

review. 133 S. Ct. at 1108, 1113. That decision forecloses Chapa’s argument.

      The district court correctly denied Chapa’s motion to vacate his sentence.

Chapa’s arguments for postconviction relief are foreclosed by Chaidez. “Under

Teague, [Chapa’s] . . . conviction[] became final prior to Padilla[,] . . .[and he]

therefore cannot benefit from its holding.” Id. at 1113.

      We AFFIRM the denial of Chapa’s motion to vacate his sentence.




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