              Case: 13-10990    Date Filed: 03/26/2014   Page: 1 of 7


                                                            [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 13-10990
                            Non-Argument Calendar
                          ________________________

                      D.C. Docket Nos. 1:10-cv-02748-JEC,
                           1:07-cr-00051-JEC-RGV-1


JUAN PABLO GUTIERREZ,

                                                             Petitioner - Appellant,

                                      versus

UNITED STATES OF AMERICA,

                                                             Respondent-Appellee.

                         __________________________

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

                                 (March 26, 2014)

Before WILSON, JORDAN, and ANDERSON, Circuit Judges.

PER CURIAM:

      Juan Pablo Gutierrez, a federal prisoner proceeding pro se, appeals from the

denial of his motion to vacate, set aside, or correct his sentence under 28 U.S.C. §
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2255, which challenged the voluntariness of his guilty plea based on ineffective

assistance of counsel. We affirm.

                                          I

      Mr. Gutierrez pled guilty, pursuant to a plea agreement, to one count of

conspiracy to possess at least one hundred kilograms of marijuana with the intent

to distribute, in violation of 21 U.S.C. §§ 841(b)(1)(B)(vii) and 846. A federal

grand jury had indicted Mr. Gutierrez on five drug-trafficking related charges, and

the district court had denied Mr. Gutierrez’s motion to suppress evidence of his

statements and physical evidence seized during his arrest.

      During the plea hearing, the district court inquired about Mr. Gutierrez’s

immigration status in his presence with a Spanish interpreter. Defense counsel

responded that Mr. Gutierrez was present in the United States illegally. The court

then explained to Mr. Gutierrez: “I don’t know how long you’ve been in this

country and I don’t know how much you know about our legal system, but again, if

you have any questions, just let me know.” D.E. 301 at 6. Mr. Gutierrez did not

ask any questions at that time.

      The district court accepted the plea after it confirmed that Mr. Gutierrez

understood his exposure to a possible maximum sentence of forty years of

imprisonment and to a five year mandatory minimum; the rights he was giving up

by pleading guilty; the nature of the charge; and the court’s obligation to calculate


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a sentencing guideline range and its ability to impose a sentence above or below

that range. Mr. Gutierrez also acknowledged the terms and consequences of the

sentence appeal waiver contained in his plea agreement.

      During the sentencing hearing, the district court informed Mr. Gutierrez that

he would be turned over for deportation proceedings. The court also explained that

if Mr. Gutierrez was deported and ever returned to the United States, he could not

violate any law while on supervised release. Mr. Gutierrez made a statement to the

court during the hearing, but he did not say anything about deportation, nor did he

ask any questions at that time. He did, however, respond affirmatively when asked

whether his wife was a U.S. citizen.

      On appeal, counsel for Mr. Gutierrez filed a brief pursuant to Anders v.

California, 386 U.S. 738 (1967).       We granted the motion and affirmed Mr.

Gutierrez’s conviction and sentence on January 11, 2010, because we found no

arguable issues of merit. We denied Mr. Gutierrez’s motion for a petition for

rehearing en banc on March 8, 2010, and Mr. Gutierrez did not seek a writ of

certiorari from the United States Supreme Court.

       On August 31, 2010, Mr. Gutierrez then moved pro se to vacate his

sentence in the district court. He challenged the voluntariness of his plea, arguing,

among other things, that his attorney provided ineffective assistance of counsel for

not advising him that his plea could result in his deportation. See Padilla v.


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Kentucky, 559 U.S. 356 (2010). The magistrate judge recommended denial of the

motion to vacate. The judge summarily found that Mr. Gutierrez could not show

prejudice since he was “an illegal alien, who was subject to deportation even

before his guilty plea.” D.E. 340 at 8.

       The district court adopted the magistrate judge’s report and recommendation

and denied the motion to vacate. The court did so, however, not because Mr.

Gutierrez was an illegal alien, but rather because he was not prejudiced by any lack

of advice by counsel since he was independently aware of his deportability. See

D.E. 350 at 6-7. Even if he was not so aware, the district court found that Mr.

Gutierrez still would have pled guilty had he known of his deportability in light of

factors like the strength of the government’s case. The court granted a certificate of

appealability on the question of the retroactivity of Padilla because the Supreme

Court had not yet decided the case, and we had not yet ruled on the issue.1

       On appeal, Mr. Gutierrez claims for the first time that his attorney

affirmatively told him that he would not face mandatory deportation. He also




1
        The district court believed that the lack of retroactivity would have made Mr. Gutierrez’s
Padilla claim “futile.” D.E. 350 at 16. The Supreme Court has since ruled that Padilla is not
retroactive. See Chaidez v. United States, __ U.S. __, 133 S. Ct. 1103 (2013). On appeal, Mr.
Gutierrez argues that Chaidez does not affect his claim because Padilla was decided before his
conviction became final on June 8, 2010, when his time to file a petition for a writ of certiorari
expired. See Appellant Br. at 6 (citing Clay v. United States, 537 U.S. 522, 532-34 (2003)).
Because the government has not responded to this argument, for purposes of this case, we
assume without deciding that Mr. Gutierrez is correct.
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asserts for the first time that his deportation to Mexico will place him and his

family in physical danger due to his cooperation with the government.

                                         II

      The Sixth Amendment guarantees the right to effective assistance of

counsel. See Strickland v. Washington, 466 U.S. 668, 685-86 (1984). To warrant

relief on a claim that counsel was ineffective, a defendant must show that (1)

counsel’s performance was deficient and (2) the deficient performance was

prejudicial. Id. at 687. The failure of counsel to inform a defendant whether a plea

carries a risk of deportation amounts to constitutionally deficient performance. See

Padilla, 599 U.S. at 374.

      Where a claim of ineffective assistance involves a plea agreement, to show

prejudice, the defendant must show “a reasonable possibility that, but for counsel’s

errors, he would not have pleaded guilty and would have insisted on going to trial.”

Hill v. Lockhart, 474 U.S. 52, 59 (1985).         In so doing, a defendant must

demonstrate that “a decision to reject the plea bargain would have been rational

under the circumstances.” Padilla, 559 U.S. at 371.

                                        III

      A claim of ineffective assistance of counsel is a mixed question of law and

fact, which means we review the findings of fact for clear error and the legal

determinations de novo. See Conklin v. Schofield, 366 F.3d 1191, 1201 (11th Cir.


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2004). The district court correctly denied Mr. Gutierrez’s motion to vacate. The

district court did not err in concluding that Mr. Gutierrez failed to show prejudice

because (1) he was aware of the risk of deportation, and (2) even if he was not so

aware, it would not have been rational for him to reject the plea bargain.

      As the district court pointed out, Mr. Gutierrez has never made an allegation

that he was unaware of the risk of deportation, including when the district court

informed him of this possibility during his sentencing hearing. The district court

further explained that Mr. Gutierrez finished high school and studied law in college

for one year in Mexico; his life revolved largely around drug trading with other

illegal immigrants from Mexico, notably in a leadership role; and he was in the

country illegally. We cannot say it was clear error for the district court to infer that

he knew of the risk of deportation under these circumstances.

      Even if he was not aware of the risk of deportation, it would not have been

rational for Mr. Gutierrez to reject the plea bargain. Mr. Gutierrez never obtained

legal status, and thus continued to be subject to removal; there was overwhelming

evidence against Mr. Gutierrez; all of his co-defendants pled guilty; Mr. Gutierrez

had the prospect of receiving favorable sentencing adjustments as a result of his

plea; and Mr. Gutierrez faced a potential of a maximum of forty years plus a five-




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year mandatory minimum sentence if convicted at trial. 2         Thus, the district court

did not clearly err in making this finding either.

      Mr. Gutierrez now argues on appeal that he has suffered prejudice because

(1) he accepted the plea only after his attorney affirmatively represented that he

would be entitled to a voluntary departure instead of a mandatory deportation, and

(2) he would not have pled had he known the risk of deportation because he and

his family would be in danger if he returned to Mexico.               Even though Mr.

Gutierrez is a pro se litigant, he never raised these issues below, and thus, we do

not review them here. See Tannenbaum v. United States, 148 F.3d 1262, 1263

(11th Cir. 1998).

                                           IV

      Because we find no reversible error, we affirm the denial of Mr. Gutierrez’s

motion to vacate.

      AFFIRMED.




2
       The record reflects that Mr. Gutierrez did actually receive favorable sentencing
adjustments, and that the district court sentenced him to 168 months— the lowest end of the
applicable guideline range.
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