             Case: 16-11598    Date Filed: 09/25/2017   Page: 1 of 6


                                                           [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                               No. 16-11598
                           Non-Argument Calendar
                         ________________________

                 D.C. Docket Nos. 3:12-cv-01084-MMH-MCR;
                        3:09-cr-00051-MMH-MCR-4


SONIA ANTIONETTE DODD,

                                                             Petitioner-Appellant,

                                     versus

UNITED STATES OF AMERICA,

                                                           Respondent-Appellee.

                         ________________________

                  Appeal from the United States District Court
                      for the Middle District of Florida
                        ________________________

                              (September 25, 2017)

Before TJOFLAT, HULL and WILSON, Circuit Judges.

PER CURIAM:

      On February 19, 2009, Sonia Antionette Dodd and her children, Alex,

Frederick and Branddie Campbell, were indicted for conspiracy to possess 1000
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kilograms of marijuana or more, in violation of 21 U.S.C. § 846; Alex and

Frederick were also charged with possession of the drug with intent to distribute, in

violation of 21 U.S.C. § 841(a). A jury convicted Alex and Frederick of both

offenses; Branddie and Dodd pled guilty.

      In United States v. Campbell, 434 F. Appx. 805 (11th Cir. 2011), we

affirmed Alex and Frederick’s convictions and Dodd’s sentence. On October 4,

2012, Dodd move the District Court to vacate her sentence pursuant to 28 U.S.C. §

2255 on the ground that her trial attorney rendered ineffective assistance in failing

to inform her that as a permanent resident and that her conviction of the § 846

conspiracy offense could result in her deportation. Following an evidentiary

hearing, the Court denied her motion, granted a certificate of appealability on the

issue of “whether Dodd’s counsel was constitutionally ineffective in his advice to

her regarding the immigration consequences of a guilty plea . . ., specifically

whether Dodd demonstrated prejudice from any deficient performance by

counsel.”

      In her pro se brief on appeal, Dodd argues that she would have proceeded to

trial had counsel informed her about the immigration consequences of a guilty

plea. She disputes that she pled guilty because of the possibility that her daughter,

Branddie, would testify against her at trial.1 She also contends that her plea


      1
          Branddie and Dodd both pled guilty to the conspiracy offense on February 22, 2010.
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agreement was not beneficial to her, and that she has substantial ties to the United

States.

      In a § 2255 proceeding, we review 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 that we review de novo. Id. We allot substantial deference to the factfinder in

reaching credibility determinations to witness testimony. Devine v. United States,

520 F.3d 1286, 1287 (11th Cir. 2008).

      The Sixth Amendment guarantees a defendant effective assistance of

counsel at critical stages of a criminal proceeding, including when she enters a

guilty plea. Lee v. United States, 137 S. Ct. 1958, 1964 (2017). To demonstrate

that counsel’s representation was constitutionally ineffective, a defendant must

show that: (1) counsel’s representation fell below an objective standard of

reasonableness, and (2) the defendant was prejudiced as a result. Id. When a

defendant claims that her counsel’s performance deprived her of a trial by causing

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

reasonable probability that, but for counsel’s unprofessional errors, she would not

have pled guilty and would have instead insisted on going to trial. Id. at 1965. A

defendant must convince the court that a decision to reject a plea bargain would

have been rational under the circumstances. Padilla v. Kentucky, 559 U.S. 356,


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372 (2010). Courts should not upset a plea solely because of post hoc assertions

from a defendant about how she would have pleaded but for her attorney’s

deficiencies. Lee, 137 S. Ct. at 1967. Courts should instead look to

contemporaneous evidence to substantiate a defendant’s expressed preferences. Id.

      In Lee, the defendant pled guilty to possessing ecstasy with intent to

distribute. Lee, 137 S. Ct. at 1962. Lee was a lawful permanent resident, and his

attorney assured him that the government would not deport him if he pled guilty.

Id. However, Lee was subject to mandatory deportation from his conviction. Id.

The Supreme Court held that Lee had demonstrated prejudice from his counsel’s

incorrect advice. Id. at 1969. “In the unusual circumstances of the case,” the

Supreme Court concluded that Lee demonstrated a reasonable probability that he

would have rejected the plea had he known that it would lead to mandatory

deportation. Id. at 1967. Lee asked his attorney repeatedly about whether there

was any risk of deportation from his proceedings, and both Lee and his attorney

testified at the evidentiary hearing that Lee would have gone to trial if he had

known about the deportation consequences. Id. at 1967–68. Moreover, when the

judge warned at the plea colloquy that a conviction could result in a deportation,

and asked whether that affected Lee’s decision to plead guilty, Lee answered “Yes,

Your Honor.” Id. at 1968. When the court inquired about how it affected his

decision, Lee turned to his counsel for advice. Id. Only when Lee’s counsel


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assured him that the judge’s statement was a “standard warning” was Lee willing

to proceed to plead guilty. Id.

      The Supreme Court recognized in Lee that a defendant’s right to remain in

the United States may be more important than any potential jail sentence. Id. In

Lee’s case, the Supreme Court stated that it was not irrational for Lee to reject the

plea offer, despite the strong case against him, since deportation was the

determinative issue, Lee had strong connections to the United States and no other

country, and the consequences for proceeding to trial were not markedly harsher

than pleading. Id. at 1968–69. Thus, because Lee’s claim, that he would not have

accepted a plea had he known it would lead to deportation, was backed by

substantial and uncontroverted evidence, the Supreme Court concluded that Lee

demonstrated a reasonable probability that, but for his counsel’s errors, he would

not have pleaded guilty and would have insisted on going to trial. Id. at 1969.

      In this case, Dodd did not establish a reasonable probability that, but for

counsel’s deficient performance, she would not have pled guilty and would have

instead insisted on going to trial. Lee, 137 S. Ct. at 1967. Unlike the defendant in

Lee, Dodd’s trial counsel, Wade Rolle, at least informed Dodd that she would be

subject to deportation proceedings. Id. at 1962. And, despite being aware of the

possibility of deportation, the record does not show any contemporaneous evidence

that Dodd was concerned about deportation at the plea hearing or sentencing. Id.


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at 1967 (“Courts should not upset a plea solely because of post hoc assertions from

a defendant.”). The District Court credited testimony from Rolle that Dodd pled

guilty because of the possibility of facing her daughter at trial, and because of the

evidence presented at her sons’ trial. Although Dodd’s testimony and other

evidence contradict Rolle’s testimony, the Court found that Dodd repeatedly lied

during the proceedings, and we allot substantial deference to the factfinder in

reaching credibility determinations to witness testimony. Devine, 520 F.3d at

1287. Finally, Dodd’s inquiry about a prison transfer to the United Kingdom

weighs against a finding that she was willing risk a larger sentence to secure the

possibility of remaining in the United States. Thus, Dodd did not demonstrate that

she suffered prejudice as a result of counsel’s failure to accurately advise her of the

immigration consequences of a guilty plea.

      AFFIRMED.




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