    Case: 17-40527    Document: 00515221810      Page: 1   Date Filed: 12/03/2019




         IN THE UNITED STATES COURT OF APPEALS
                  FOR THE FIFTH CIRCUIT
                                                                  United States Court of Appeals
                                                                           Fifth Circuit

                                                                         FILED
                                 No. 17-40527                     December 3, 2019
                                                                    Lyle W. Cayce
                                                                         Clerk


UNITED STATES OF AMERICA,

                                            Plaintiff–Appellee,

versus

GUSTAVO GONZALEZ,

                                            Defendant–Appellant.




                 Appeal from the United States District Court
                      for the Southern District of Texas




Before SMITH, DENNIS, and HAYNES, Circuit Judges.
JERRY E. SMITH, Circuit Judge:

      Gustavo Gonzalez appeals the denial of his motion to vacate his convic-
tion and sentence based on ineffective assistance of counsel (“IAC”). Because
the district court’s reading of the facts was not clearly erroneous, we affirm.

                                       I.
                                       A.
      U.S. Border Patrol agents discovered that Gonzalez, a truck driver, was
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                                  No. 17-40527
hauling not only electronics but also over 1,500 kilograms of marihuana.
Gonzalez was arrested and charged with possession with intent to distribute a
controlled substance in excess of one thousand kilograms, in violation of 21
U.S.C. § 841(a)(1) (2012). Gonzalez agreed to plead guilty in exchange for the
government’s recommendation that he “be given maximum credit for accep-
tance of responsibility” and a within-guidelines sentence.

      At his rearraignment, Gonzalez expressed a desire to plead guilty. The
government provided a lengthy recitation of the alleged facts, which Gonzalez
admitted the government could prove. The district court then asked why Gon-
zalez was transporting over 1,500 kilograms of marihuana, to which Gonzalez
replied, “someone forced me to do that, sir.” In response to the court’s further
questioning, Gonzalez claimed that he was transporting the drugs because his
family in Matamoros, Mexico, was being threatened. That prompted the court
both to explain the elements of a duress defense and to order a fifty-three-
minute recess for Gonzalez and his attorney, Reynaldo Cisneros, to discuss
whether to enter the guilty plea as previously planned. After that recess,
Gonzalez stated before the court, “I want to go to trial.”

      Three days later, the court held a final pretrial conference. After a pro-
longed discussion concerning the prerequisites for a duress instruction, the
court informed Gonzalez that, although it would continue to accept a guilty
plea, it would not accept a plea bargain past that afternoon. Cisneros stated
he had “made that very clear” to his client and that he had “explained the
consequences of [ ] going to trial.” Of salience was the likelihood the govern-
ment would file a sentencing enhancement based on Gonzalez’s prior felony
drug trafficking conviction, which would increase his minimum possible




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                                        No. 17-40527
sentence from ten to twenty years. 1 At the court’s suggestion, the government
agreed to wait four days—until the first day of trial—to file a notice of sen-
tencing enhancement. 2

       Early on the first morning of trial, Gonzalez told U.S. marshals that he
wished to speak with his attorney concerning whether he should plead guilty.
Cisneros, however, arrived at the courtroom nearly four hours late, believing
that the trial was scheduled to begin on a later day. In the interim, the gov-
ernment filed its notice of sentencing enhancement. The trial began shortly
thereafter.

       Gonzalez testified that members of the Zetas cartel had threatened his
family and forced him to carry the load of marihuana to satisfy a “debt.” On
cross-examination, Gonzalez clarified that such debt represented 109 pounds
of the cartel’s marihuana that was confiscated when he was caught trans-
porting it seven years earlier. 3 Nevertheless, he claimed that, on the day of
the arrest by the Border Patrol, he knew “nothing about” the cargo he was
carrying, including whether it included marihuana or even a controlled sub-
stance generally.

       After deliberating for less than forty-five minutes, the jury found Gon-
zalez guilty of possession with intent to distribute more than one thousand
kilograms of marihuana. The district court regretfully imposed the statutory



       1 When Gonzalez was tried, § 841(b)(1)(A) specified that a conviction of possession
with intent to distribute more than one thousand kilograms of marihuana would subject a
defendant to “a term of imprisonment which may not be less than 10 years,” which increased
by ten years if the “violation [be] after a prior conviction for a felony drug offense[.]” Five
years later, Congress enacted a bill that reduced the enhancement’s effect by five years. See
First Step Act of 2018, Pub. L. 115-39, 132 Stat. 5194 § 401(a)(2)(A)(i).
       2Had Gonzalez pleaded guilty before the government filed notice, the enhancement
would not have applied. See 21 U.S.C. § 851(a)(1).
       3   Gonzalez’s ensuing guilty plea in state court was the basis for the enhancement.
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                                   No. 17-40527
minimum of 240 months’ imprisonment followed by 10 years’ supervised
release. This court affirmed on direct appeal. United States v. Gonzalez,
584 F. App’x 188, 190 (5th Cir. 2014) (per curiam), cert. denied, 135 S. Ct. 1539
(2015).

                                         B.
      This is a collateral attack whose incipit was a pro se motion Gonzalez
filed under 28 U.S.C. § 2255, seeking habeas corpus relief by asserting that
Cisneros’s performance was constitutionally ineffective. Specifically, Gonzalez
claimed Cisneros incorrectly told him that a conviction under § 841(a)(1)
requires proof the defendant knew the type and quantity of the alleged con-
trolled substance and that, but for such erroneous advice, Gonzalez would have
pleaded guilty before the government filed its notice of sentencing enhance-
ment. Appropriate relief, Gonzalez contended, would therefore effect a sub-
stantial downward revision of his sentence.

      The district court held two days of evidentiary hearings concerning
Gonzalez’s motion. Gonzalez testified that Cisneros originally counseled him
to plead guilty but that, during the rearraignment hearing and in response to
the court’s discussion regarding a duress defense, Cisneros suggested Gonzalez
pursue trial. Gonzalez further stated that Cisneros told him the government
would have to prove he knew he was transporting marihuana specifically.
Notwithstanding that, Gonzalez testified that, on the morning of his first day
of trial, he “wanted to plead guilty and . . . stop the trial, because [he] felt that
[Cisneros] was not ready” but that Cisneros’s tardiness prevented him from
doing so before the government filed its notice of enhancement.

      Cisneros also testified at the hearings, both corroborating and contra-
dicting certain parts of Gonzalez’s testimony. Cisneros admitted he incorrectly
advised Gonzalez that a conviction would require the government to prove
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                                  No. 17-40527
knowledge that the controlled substance both was specifically marihuana and
was in excess of one thousand kilograms. Still, Cisneros contested the notion
that he pushed Gonzalez to pursue trial, claiming that he counseled Gonzalez
to plead guilty. Cisneros stated that it was in fact Gonzalez who wanted to
present his case to a jury so that it could “hear the [cartel’s] threats and the
possibility of his duress defense.” Even under his misunderstanding of the
elements of the offense, Cisneros testified he told Gonzalez that the govern-
ment’s evidence was sufficient for a conviction.

      In a twenty-seven-page memorandum and order, the district court
denied the § 2255 motion. This court then granted a certificate of appealabil-
ity, which the district court had previously denied.

                                        II.
                                        A.
      “In an appeal from the denial of habeas relief, this court reviews a
district court’s findings of fact for clear error and issues of law de novo.” Wilson
v. Roy, 643 F.3d 433, 434 (5th Cir. 2011). “An [IAC] claim,” such as this one,
“presents a mixed question of law and fact.” Richards v. Quarterman, 566 F.3d
553, 561 (5th Cir. 2009). “[T]he [reviewing] Court employs a de novo standard
by independently applying the law to the facts found by the district court, as
long as the district court’s factual determinations are not clearly erroneous.”
Id. “A finding is clearly erroneous only if it is implausible in the light of the
record considered as a whole.” Id.

      Because of conflicting evidence, whether there be a reasonable proba-
bility that Gonzalez would have pleaded guilty but for his constitutionally defi-
cient counsel is ultimately a question of fact. In resolving such questions, we
rely heavily on the district court’s judgment, although we review the record for
clear error. See id.
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                                 No. 17-40527
                                       B.
      The Sixth Amendment provides “the right to the effective assistance of
counsel.” McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970) (emphasis
added). That right “extends to the plea-bargaining process.” Lafler v. Cooper,
566 U.S. 156, 162 (2012).

      To succeed on a claim that IAC “result[ed] in a rejection of [a] plea offer
and the defendant’[s subsequent] convict[ion] at the ensuing trial,” a defendant
need satisfy a two-pronged test. Id. at 163. First, he must show ineffective-
ness, that “counsel’s representation fell below an objective standard of reasona-
bleness.” Strickland v. Washington, 466 U.S. 668, 688 (1984). Second, he must
establish prejudice, that “but for the ineffective advice of counsel there is a
reasonable probability that,” among other things, “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).” Cooper, 566 U.S. at 164. “[R]easonable probability” means “a
probability sufficient to undermine confidence in the outcome,” Washington,
466 U.S. at 694, but “less than a preponderance of the evidence,” Dale v. Quar-
terman, 553 F.3d 876, 880 (5th Cir. 2008) (per curiam).

      The parties agree that, by erroneously advising Gonzalez that a convic-
tion under § 841(a)(1) requires the government prove the defendant knew the
type and quantity of controlled substance he was trafficking, Gonzalez’s coun-
sel performed in an objectively unreasonable manner.         But it is disputed
whether Gonzalez suffered prejudice.        The relevant question is therefore
whether there be a reasonable probability that Gonzalez would have accepted
the government’s plea deal had he been counseled correctly as to the elements
of the charged offense.



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                                  No. 17-40527
                                       III.
      Gonzalez asserts that he based his decision to stand trial on his attor-
ney’s incorrect advice concerning what the government was required to prove.
Although Gonzalez repeatedly expressed a desire to plead guilty, Gonzalez
claimed in his pro se § 2255 motion that “Cisneros . . . convinced [him] to
change his mind and proceed to trial . . . by explaining that the government
was required to prove beyond a reasonable doubt . . . that [Gonzalez] had
knowledge he was possessing marijuana, as well as over 1,000 kilograms of
that specific drug.” Believing—erroneously—that ignorance thereof would be
a “viable defense,” Gonzalez “was persuaded by Cisneros to proceed to trial.”

      Certain testimonial evidence supports Gonzalez’s assertion.         At the
habeas hearings, Gonzalez reiterated that his trial counsel had advised him a
conviction would require proof that he knew he was transporting marihuana.
And Cisneros corroborated that he incorrectly had advised his client as to the
necessary elements for a conviction under § 841(a)(1). From such evidence, one
might conclude at least the possibility that Gonzalez would have pleaded guilty
but for the incorrect advice.

      Other evidence suggests, however, that Gonzalez refused the plea agree-
ment not in reliance on the elements of the crime but in favor of mounting a
duress defense. Cisneros testified that he counseled Gonzalez to plead guilty,
notwithstanding both the possibility, however remote, of proving duress and
Cisneros’s mistaken understanding of the essential elements for conviction.
But Cisneros claimed that Gonzalez “wanted to go to trial . . , [b]ecause he . . .
wanted the jury to hear the [cartel’s] threats and the possibility of his duress
defense.” And even Gonzalez testified that Cisneros told him an acquittal
depended on a duress theory, which “might be successful . . . due to all the
violence that was happening in Mexico[.]” In fact, in two days of hearings,

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                                        No. 17-40527
Gonzalez never testified outright that he would have accepted the plea deal
had he been properly informed as to the sufficient elements of the crime.

       The most likely explanation for Gonzalez’s refusal to plead guilty is that
he decided to pursue a duress defense. Whatever his understanding of the
elements the government would have to prove at trial, Gonzalez entered the
courtroom on the day of his rearraignment determined to plead guilty. Nothing
said during that hearing suggested that Gonzalez could prevail at trial under
the theory that he did not know the type or quantity of controlled substance he
was transporting.

       If anything, statements made at the hearing suggested otherwise—
Gonzalez admitted the government could prove everything it alleged, 4 and the
court briefly stated how it should instruct a jury that it could convict. 5 The
bulk of the proceeding—indeed, the very reason the court called a recess of
nearly one hour—concerned Gonzalez’s possible duress defense. And even a
duress defense, the court explained, would be relevant if and only if the jury
first should find “that the Government has proved, beyond a reasonable doubt,
that Mr. Gonzalez committed the crime charged,” that is, that the government
proved the elements required for a conviction. It therefore appears unlikely
that Cisneros’s erroneous advice regarding those elements meaningfully
affected Gonzalez’s calculus of whether to accept the plea deal. 6


       4 If the government were required to prove knowledge of the type and quantity of the
controlled substance, it should seem odd that its statement of facts made no such allegation.
       5The court stated it would “tell the jury” that a conviction would require it to find that
Gonzalez had “voluntarily commit[ted] this crime, that [Gonzalez] . . . possessed the drugs
voluntarily, that is something that [he] intended to do, that is some act that [he] undertook,
and that [he] knew [he was] doing it and that it was [his] choice to do that,” to which Gonzalez
responded, “[y]es, I understand.” Nowhere did the court suggest a jury would have to find
Gonzalez knew precisely which drug it was or the quantity thereof.
       6At the final pretrial hearing, when the court stated its casual assumption that Gon-
zalez would “get on the stand . . . and deny knowledge,” Cisneros responded that his client
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                                      No. 17-40527
       It is not for us to substitute our judgment for the district court’s when
weighing conflicting factual evidence. Even if our reading of the facts differed
from the district court’s, we would affirm absent a finding of clear error. See
Richards, 566 F.3d at 561. Far from clearly erroneous, the district court’s fac-
tual determinations are supported by the record. We therefore decline to dis-
turb its disposition.

       The order denying § 2255 relief is AFFIRMED.




was “not going to deny knowledge[.]” Perhaps Cisneros meant to say that Gonzalez was not
planning on denying knowledge that he was transporting a controlled substance, but only
disputing that he knew he was transporting over a thousand kilograms of marihuana. While
possible, such would be a curious omission indeed if Gonzalez’s decision to pursue trial even
partially relied on the distinction.
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                                 No. 17-40527
JAMES L. DENNIS, Circuit Judge, dissenting.
      I respectfully dissent. In my view, the district court erred in denying
Gonzalez’s § 2255 motion.       It is undisputed that Gonzalez’s attorney
misadvised him of the law that would govern his case if he went to trial: The
attorney informed Gonzalez that the government would have to prove that he
knew the specific type and quantity of illegal drugs that were concealed in his
cargo in order to convict him. The advice was wrong; the government only had
to show that Gonzalez knew he possessed some kind of illegal drug. The record
here demonstrates a reasonable probability that, if Gonzalez had been
correctly advised, he would have followed through in accepting the plea offer
that he, his attorney, and the prosecutor had already signed. Consequently,
he would have received a sentence roughly half the length of the twenty-year
enhanced sentence that resulted from his being convicted at trial. Under these
circumstances, the appropriate remedy is to order the government to reoffer
the plea bargain; if Gonzalez accepts, the trial court should then exercise its
discretion to either vacate Gonzalez’s conviction and resentence him
accordingly or leave the conviction and sentence resulting from Gonzalez’s trial
undisturbed. See Lafler v. Cooper, 566 U.S. 156, 174 (2012)
                                       I.
      On March 13, 2013, Gonzalez arrived at a United States Border Patrol
checkpoint at Sarita, Texas.     Agents discovered several cardboard boxes
collectively containing over 1,500 kilograms of marihuana among the cargo in
Gonzalez’s trailer.   Gonzalez was charged with possession with intent to
distribute marihuana in excess of 1,000 kilograms in violation of 21 U.S.C. §
841(a)(1), (b)(1)(A). On June 3, 2013, Gonzalez entered into a plea bargain in
which he agreed to plead guilty in exchange for the government’s


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                                 No. 17-40527
recommendation that he be given maximum credit for acceptance of
responsibility and a within-guidelines sentence.
      Gonzalez at first attempted to follow through with the agreement by
entering a guilty plea at his rearraignment. When the district court asked
Gonzalez why he was transporting the marihuana, however, he replied,
“Someone forced me to do that, sir.” The district court briefly explained the
requirements of a duress defense to Gonzalez and then called a recess for
Gonzalez to speak with his attorney, Reynaldo Cisneros. During this recess,
Cisneros incorrectly told Gonzalez that if he went to trial, the government
would be required to prove not only that Gonzalez knew he was transporting a
controlled substance, but also that Gonzalez knew that he was specifically
hauling a load of more than 1,000 kilograms of marihuana. Following the
recess, Gonzalez told the court that he now wished to go to trial.
      Before trial, the government filed a notice of sentencing enhancement
that doubled the ten-year mandatory minimum sentence that Gonzalez would
face. Trial commenced, and, after the close of evidence, the court correctly
instructed the jury that “[t]he Government does not have to prove that the
defendant knew the kind of controlled substance he possessed [or] that he knew
its weight . . . .”   The jury found Gonzalez guilty, and the district court
sentenced Gonzalez to the enhanced statutory minimum of 20 years’
imprisonment and 10 years’ supervised release.
      After his direct appeal was unsuccessful, Gonzalez filed a motion to
vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. He
contended that Cisneros had provided constitutionally ineffective assistance
during his rearraignment by wrongly advising him regarding the scienter the
government would have to establish if he went to trial—that is, that the
prosecution would have to prove his knowledge of the specific type and
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                                 No. 17-40527
quantity of the drug that he hauled in order to convict him. Gonzalez stated
this bad advice persuaded him to turn down the plea agreement and go to trial.
Following two evidentiary hearings, the district court denied Gonzalez’s § 2255
motion, opining that, although Cisneros’s performance was clearly deficient,
Gonzalez had not established that it was the bad advice that caused him to
forgo the plea agreement and proceed to trial.
                                       II.
      The majority concludes that Gonzalez’s desire to pursue a duress defense
makes it unlikely that Cisneros’s flawed advice as to scienter “meaningfully
affected Gonzalez’s calculus of whether to accept the plea deal.” Maj. at 8. I
respectfully disagree. The two defense theories that Gonzalez pursued were
not inconsistent. In fact, together they were synergistic. The chronology of
events suggests Gonzalez was fully prepared to plead guilty until Cisneros’s
incorrect advice convinced him he possibly had two consistent grounds for
acquittal that reinforced each other—duress and the government’s inability to
prove scienter as Cisneros had misstated it.          Gonzalez likely behaved
rationally, evaluating the strength of both defenses relative to the
government’s case, and this balance was significantly different in reality than
Cisneros’s incorrect advice led Gonzalez to believe. And that Gonzalez trusted
and was influenced by Cisneros’s misstatement is corroborated by the strategy
he and his attorney in fact employed at trial.              There is no evidence
contradicting these conclusions, and I would accordingly hold that Gonzalez
has demonstrated a reasonable probability that his attorney’s deficient
performance resulted in his electing to go to trial and receiving a substantially
longer sentence.
      With regard to the circumstances surrounding Gonzalez’s decision, I
agree with the majority that “Gonzalez entered the courtroom on the day of the
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                                   No. 17-40527
proceeding determined to plead guilty.” Maj. at 8. There is no evidence that
Cisneros had previously discussed the elements of the charged offense with
Gonzalez, and Gonzalez claims he had only brief interactions with Cisneros
prior to the rearraignment. At the proceeding, Gonzalez related to the court
the basic outline of the story he would maintain throughout the entirety of the
case—that the Zetas cartel threatened him and his family in order to force him
to allow the cartel to load contraband into his trailer. Although he did not
elaborate at the time, Gonzalez would later clarify that the cartel allegedly
forced him to meet them near Brownsville, Texas, where they took his truck
from him and loaded it at another location before returning it to him with the
trailer door sealed.
         The court declared a recess, and it is undisputed that during this break
Cisneros advised Gonzalez regarding both duress and counsel’s incorrect
understanding that the government would have to prove that Gonzalez knew
he was transporting specifically marihuana and specifically more than 1,000
kilograms thereof.      Under the law as Cisneros incorrectly explained it,
Gonzalez’s account of events would have supported both an affirmative duress
defense and a strong case for acquittal based on Gonzalez’s not knowing the
type or amount of drug he was transporting. In reality, Gonzalez’s defense
based on his lack of scienter was much weaker than Cisneros’s statement
indicated because the government had to prove only that Gonzalez knew he
was transporting some type of illicit drugs—the kind of good the cartel’s illegal
business model was based on. But after Cisneros gave Gonzalez his incorrect
explanation, Gonzalez decided that his case was strong enough to proceed to
trial.
         On this record, the clear implication is that Cisneros’s erroneous advice
gave Gonzalez a false conception of the strength of his case and influenced his
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                                       No. 17-40527
decision to forgo the plea agreement. The majority disagrees, positing that
only the newly realized possibility of a duress defense caused Gonzalez to
change course.      But Cisneros advised Gonzalez of the legal bases of both
defenses at approximately the same time, and there is no reason to believe one
defense came as any less of a revelation than the other. The majority points to
the fact that, prior to the recess, the court recited the correct elements of the
offense and Gonzalez conceded that the government could prove everything it
alleged. Maj. at 8. But if anything, this weighs in favor of the opposite
conclusion; Gonzalez initially conceded that he could be convicted under the
law as it actually stood, and it was only after his counsel falsely informed him
that the legal standard was higher than the court had stated that he became
convinced he had a sufficient chance of prevailing to risk going to trial. 1 The
events of the rearraignment thus give no reason to doubt that Cisneros’s
incorrect advice influenced Gonzalez’s decision to go to trial rather than accept
the plea bargain.
       Indeed, given the difficult standard for proving a duress defense that the
court explained to Gonzalez, it is hard to believe Gonzalez would not have also
considered the strength of the government’s case against him. To prevail on
duress, Gonzalez had to prove that the threat to his family was “unlawful,”
“present, imminent, and impending[, and] of such a nature as would induce a



       1 The majority seems to suggest it was unreasonable for Gonzalez to believe his
counsel because the court and the government stated the law correctly before Cisneros gave
him the incorrect advice. Maj. at 8 n.5 & n.6. But the district court warned Gonzalez during
the same proceeding that Cisneros was “the man [he should] listen to, not [the court]” because
the court did not “represent [him].” Moreover, whether it was objectively reasonable for
Gonzalez to believe Cisneros’s incorrect advice is not relevant; the question is whether the
evidence indicates that Gonzalez subjectively relied upon his counsel’s advice in forgoing the
plea agreement, regardless of whether it was reasonable for him to do so. See Lafler, 566
U.S. at 163–64.
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                                      No. 17-40527
well-grounded fear of death or serious bodily injury”; that he “had not
recklessly or negligently placed himself” in a situation where it was likely he
would be forced to break the law; that he “had no reasonable legal alternative
to violating the law”; and that it was reasonable to believe his criminal actions
would prevent the threatened harm to his family. United States v. Posada–
Rios, 158 F.3d 832, 873 (5th Cir. 1998). Gonzalez would have rationally been
encouraged to go to trial by Cisneros’s incorrect advice based on the assurance
that he had a strong second defense available even if he could not meet all
these requirements. 2
       The inference that arises from the events of the rearraignment—that
Gonzalez considered and relied on Cisneros’s mistaken advice in evaluating his
case—is further corroborated by the fact that this two-defense approach is
exactly the tactic Gonzalez used at trial. Calling attention to the alleged fact
that Gonzalez did not know he was transporting over 1,000 kilograms of
marihuana was a critical part of the defense strategy. Cisneros told the jury
during his opening statement, “You will also hear evidence that my client
didn’t know whether [the load in the trailer] was cocaine, whether it was
marihuana, whether it was illegals, or whether it was empty. He didn’t know.
For all he knows . . . he was being tested to see what he did.” Later, Gonzalez
testified that he had no idea what the cartel had loaded into his truck. On
cross-examination, the state asked Gonzalez why he would think the cargo was
something other than drugs. Gonzalez appeared to reply that, even if he
suspected his cargo was drugs, he did not know “the kind of—the amount of”




       2 To the extent Cisneros misrepresented the difficulty of prevailing on a duress
defense, this likely compounded the effect of his misstatements regarding the elements of the
charged offense.
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                                 No. 17-40527
drugs it was. This alone is powerful evidence that Gonzalez did not choose to
go trial solely to raise a duress defense as the majority claims.
      Lastly, the majority frames the district court’s decision as centering on
credibility determinations and the weighing of conflicting evidence. Maj. at 9.
It specifically cites Cisneros’s testimony at the evidentiary hearing that
Gonzalez wanted to go to trial so the jury could hear about the cartel’s threats
and the possibility of his duress defense, as well as Gonzalez’s testimony that
Cisneros told him acquittal might be possible “due to all the violence that was
happening in Mexico.” Maj. at 7-8. But neither Cisneros’ nor Gonzalez’s
statements are inconsistent with Gonzalez’s relying in part on Cisneros’s
mistaken advice. Cisneros’s testimony that Gonzalez wanted the jury to hear
about the cartel’s threats comports with Gonzalez’s desire to pursue a lack of
scienter defense because the threats provided the only plausible explanation of
how he had come to transport a very large amount of marihuana without
knowing the nature of his cargo.      Similarly, Cisneros’s alleged statement
regarding violence in Mexico weighs in favor of Gonzalez pursuing both
defenses—the jury’s familiarity with cartel violence would potentially lend
credence to Gonzalez’s entire narrative, and not simply those portions relevant
to a duress defense. There is thus no evidence weighing against the conclusion
that Cisneros’s incorrect advice influenced Gonzalez to turn down the plea
agreement, which is inferable from the circumstances and corroborated by the
strategy Gonzalez pursued at trial.
                                       ***
      The standard for proving prejudice in this context is not high. Gonzalez
needed to show only that there is a “reasonable probability” he would have
accepted the plea offer if his counsel had correctly informed him that his second
defense was significantly weaker than he was led to believe. See Lafler, 566
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                                 No. 17-40527
U.S. at 163–64. A reasonable probability is less than proof by a preponderance
of the evidence; it is only “a probability sufficient to undermine confidence in
the outcome” of the proceeding. Strickland v. Washington, 466 U.S. 668, 694
(1984). The record in this case is sufficient to undermine confidence that
Gonzalez would have proceeded to trial if he had been correctly advised, and I
would therefore hold that Gonzalez has carried his burden.




                                      17
