     Case: 15-60146    Document: 00514273808       Page: 1   Date Filed: 12/14/2017




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

                                    No. 15-60146                         FILED
                                                                  December 14, 2017
                                                                    Lyle W. Cayce
UNITED STATES OF AMERICA,                                                Clerk

             Plaintiff - Appellee

v.

WILLIAM BRUCE CRAIN,

             Defendant - Appellant




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


Before WIENER, HIGGINSON, and COSTA, Circuit Judges.
WIENER, Circuit Judge:
      Defendant-Appellant William Bruce Crain pleaded guilty to possession
of child pornography and to using interstate facilities to transmit information
about minors. Crain’s plea agreement included a waiver of his appeal and
collateral-attack rights. He filed a motion to vacate his sentence, which the
district court denied after a hearing. He now appeals, arguing that (1) his
collateral-attack waiver is invalid, and (2) his attorney was ineffective for
failing (a) to object to misstatements by the district court at his Rule 11 plea
colloquy, and (b) to advise him about possible special conditions of supervised
release. We dismiss Crain’s appeal in part, and affirm the district court in part.
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                                     No. 15-60146
                             I. FACTS AND PROCEEDINGS
      In 2008, Crain was charged with possession of child pornography (Count
I) and using interstate facilities to transmit information about minors (Count
II), in violation of 18 U.S.C. §§ 2252(a)(4)(B) and 2425. In 2009, Crain pleaded
guilty to those charges pursuant to a written plea agreement. That agreement
contained waivers of his rights (1) to appeal his conviction and sentence “on
any ground whatsoever,” and (2) to collaterally attack his conviction and
sentence “in any post-conviction proceeding[.]” 1
      The plea agreement contained a section describing the maximum
potential sentence. It stated, as to Count I, that Crain would receive a term of
supervised release of at least three years and up to his lifetime. That statement
of the maximum term of supervised release was correct, but the minimum term
of supervised release for his offense was actually five years. 2 The plea
agreement also specified that if Crain should violate any condition of his
supervised release, he could “be returned to prison for the entire term of
supervised release[.]”
      At Crain’s plea hearing, the district judge mistakenly informed Crain
that the maximum term of supervised release on Count I was three years. The
judge also told Crain that if a defendant violates the conditions of supervised
release, the district court would “decide what to do with the person [who
violated terms of supervised release]” and that the court “could even send the
person back to the penitentiary[.]” When Crain entered his guilty plea, he had
already signed his plea agreement. He confirmed at his plea colloquy that he




      1  A defendant may waive his right to a proceeding under 28 U.S.C. § 2255, just as he
may waive his appeal rights. United States v. Wilkes, 20 F.3d 651, 653 (5th Cir. 1994) (per
curiam).
      2 18 U.S.C. § 3583(k) (2006).

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                                     No. 15-60146
had read “each and every paragraph” of the plea agreement before he signed
it.
       After Crain pleaded guilty, the U.S. Probation Office prepared a
Presentence Investigation Report (“PSR”) which stated the correct maximum
and minimum term of supervised release, and recommended the maximum,
that is, a lifetime of supervised release. The PSR also recommended special
conditions of supervised release because Crain was a sex offender: (1) a
prohibition of any Internet access at all and any computer use without
permission from the Probation Office, (2) sex offender treatment, (3) polygraph
examinations as directed by the Probation Office, (4) sex offender registration,
and (5) warrantless searches by the Probation Office. Crain filed objections to
the PSR before sentencing, but he did not address the inconsistent maximum
and minimum terms of supervised release.
       At the sentencing hearing, Crain stated that he had read the PSR and
discussed it with his lawyers. 3 The probation officer again correctly stated the
maximum and minimum terms of supervised release, and Crain’s attorney
agreed with that range. Crain addressed the court before the sentence was
imposed, but he did not mention either the length of the supervised release
term or the special conditions of supervised release identified in the PSR. The
district court adopted the PSR’s guideline range from 151 to 180 months, and
sentenced Crain to 161 months in custody. The court also imposed a lifetime
term of supervised release, including the following special conditions: (1) a
lifetime ban on possession or use of any computer with Internet access and on
using any computer at all during business hours, (2) providing financial
information on the Probation Office’s request, (3) sex offender and mental



       3 Though Crain was represented by one attorney at the plea stage, that attorney was
joined by a second attorney at sentencing.
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                                       No. 15-60146
health treatment, (4) polygraph examinations at the direction of the Probation
Office, (5) sex offender registration, and (6) warrantless searches.
       Crain filed a notice of appeal of his sentence. The government filed a
motion to dismiss Crain’s appeal based on his appeal waiver. Crain responded
that his depression medication and mental health issues had rendered him
incompetent to plead guilty. In 2010, a panel of this court rejected that
contention, concluding that the district court had adequately addressed Crain’s
competence at rearraignment, and dismissing Crain’s appeal on the basis of
his appeal waiver.
       In 2011, Crain filed a pro se motion to vacate his sentence under 28
U.S.C. § 2255. He raised six grounds in his motion to vacate: (1) The district
court violated Federal Rule of Criminal Procedure 11 at the plea hearing, most
notably by incorrectly stating the maximum term of supervised release and
“[f]ail[ing] to inform [Crain] of the maximum possible imprisonment,” 4 (2) his
plea counsel was ineffective for incorrectly advising him about the guideline
range Crain would face, and for failing to advise him of the likely lifetime term
and special conditions of supervised release, 5 (3) his sentencing counsel was
also ineffective for (a) failing to object to the PSR and, at sentencing, on the
grounds that the lifetime term of supervised release conflicted with the district
judge’s statement, and (b) failing to request to withdraw his guilty plea, (4) his
appellate counsel was ineffective (a) for failing to raise several issues, and (b)
for failing to challenge his appeal waiver, and (5) the government “lacked



       4  Crain raises additional alleged Rule 11 errors in his § 2255 motion, but his brief on
appeal addresses only these two. The court therefore need not address the other alleged Rule
11 errors. See Yohey v. Collins, 985 F.2d 222, 225–26 (5th Cir. 1993) (declining to consider an
“issue [that] was raised in [the petitioner’s] petition, but was not presented or argued in his
initial appeal brief”).
        5 Crain also complained that counsel did not inform him of the consequences of

violating the terms of supervised release, but that issue was not included in the certificate of
appealability.
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                                        No. 15-60146
jurisdiction” to charge him with Count I because it did not establish an
interstate commerce nexus. Crain attached to his motion his own affidavit and
an affidavit from his attorney at the plea phase.
       The government contended that Crain’s motion should be denied based
on his collateral-attack waiver, which Crain claimed was rendered invalid by
the Rule 11 errors at his plea hearing. The district court ruled that the
collateral-attack waiver was valid and barred all of Crain’s claims other than
his claims of ineffective assistance of counsel at the plea and sentencing
stages. 6 This was because those claims fall under an exception to an otherwise
valid collateral-attack waiver when such claims could affect the validity of the
plea. 7 The court denied some ineffective assistance claims 8 and held a hearing
on the claims regarding his attorney’s alleged failure to (1) advise him of the
special conditions, (2) inform him of the consequences of violating the
conditions of supervised release, and (3) object to the portion of the PSR that
contradicted the district judge’s statement at rearraignment. 9
       At that hearing, Crain’s plea attorney testified that the government had
considered bringing additional charges against Crain, but did not do so because
of   the    plea    negotiations.      The    attorney      acknowledged        that,    before
rearraignment, he had advised Crain that the court could impose up to a
lifetime term of supervised release and that the conditions of release were
generally discussed. That lawyer also testified that he knew that Crain might




       6  The ineffective assistance of appellate counsel claims failed because Crain “was
never entitled to that appeal to begin with.”
        7 See United States v. White, 307 F.3d 336, 343 (5th Cir. 2002).
        8 Specifically, the district court denied Crain’s claims that his attorney (1) failed to

object to the guidelines calculation, and (2) failed to advise him of the correct guideline range
and maximum term of supervised release, because Crain was aware of the statutory
maximum term of imprisonment and supervised release via the plea agreement.
        9 The court appointed counsel to represent Crain for the evidentiary hearing.

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                                       No. 15-60146
face some Internet restrictions, but it is unclear whether he discussed this with
Crain. 10
       For his part, Crain testified that, before he entered his plea, his attorney
never advised him that he could face a lifetime computer ban. Crain also
claimed that he pleaded guilty based on the court’s assurance at rearraignment
that he would face no more than three years of supervised release on each
count and that he first learned of the possibility of lifetime supervised release
and computer restrictions when the court imposed sentence. But, he also
admitted that when he received the PSR, his “main focus” was on the amount
of time he would be imprisoned. He maintained that he was never told that he
could return to prison for life for supervised release violations.
       Crain also testified that if he had known he faced a lifetime computer
ban or a lifetime term of supervised release, he would not have pled guilty,
because these conditions would make it impossible for him to work after his
release. He also claimed that, after reviewing the PSR, he asked his attorneys
to withdraw his plea because the guideline range was longer than he expected,
but that they told him it was too late to do so. 11 He acknowledged, however,
that he did not raise these concerns during allocution.
       After the hearing, the court denied Crain’s motion as to his remaining
claims. The court concluded that counsel could not have known, before Crain
pleaded guilty, what recommendations would be in the PSR. The court found
that Crain’s attorney advised him that he could be returned to prison if he




       10 Crain’s attorney testified “I believe that there was discussion about restriction of
Internet use. I believe I had that discussion with the A.U.S.A. on that. I don’t think that I
would have told him it was a lifetime ban.”
       11 This statement appears to conflict with Crain’s affidavit, in which he stated that it

was the recommended term of supervised release and the special conditions of supervised
release that made him want to withdraw his plea.
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                                       No. 15-60146
violated conditions of supervised release. 12 As for the failure-to-object claim,
the court ruled that any such objection would have been frivolous because a
life term was authorized by the statute and the court would not have allowed
Crain to withdraw his plea. The court also noted that Crain’s testimony that
he was “focused” on the length of his sentence belied his claim that he would
not have pled guilty.
       The district court granted a certificate of appealability (“COA”) on the
following issues: (1) whether the alleged Rule 11 errors rendered Crain’s plea
and collateral-attack waiver invalid; (2) whether counsel was ineffective for
failing to advise Crain of the conditions of supervised release, (3) whether
counsel was ineffective for failing to object to the court’s understatement of the
length of the supervised release term, and (4) “[w]hether the prosecution had
subject-matter jurisdiction over [Crain’s] case.” 13 After Crain filed his opening
brief, the government filed a motion to dismiss or for summary affirmance, and
a panel of this court ordered briefing only on whether counsel was ineffective
for failing to advise Crain of the possible special conditions of supervised
release before he entered his plea.
                                        II. ANALYSIS
A.     Validity of Collateral-Attack Waiver
       1.     Alleged Rule 11 Errors
       The government’s motion to dismiss Crain’s appeal dovetails with the
first issue Crain raises, viz., whether the court’s alleged Rule 11 errors
invalidated Crain’s guilty plea and his collateral-attack waiver. A reviewing




       12 Even if this were not the case, the court further noted that these claims would not
render the plea invalid because special conditions and potential revocation of supervised
release are collateral, not direct, consequences of a guilty plea.
       13 The district court did not address the merits of the fourth claim, and the certificate

of appealability did not cover all of Crain’s ineffective assistance of counsel claims.
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                                       No. 15-60146
court examines a defendant’s challenge to a collateral-attack waiver de novo, 14
but “[t]he district court’s factual finding that [a defendant] was fully advised
of the consequences of pleading guilty is reviewed for clear error.” 15 As Crain
acknowledges, however, the district court’s decision to uphold the waiver in
light of the alleged Rule 11 error is reviewed for plain error. 16 “To establish
plain error, [a defendant] is required to show that (1) there was error, (2) the
error was plain, (3) the error affected his substantial rights, and (4) the error
seriously affected the fairness, integrity or public reputation of judicial
proceedings.” 17 “[A] defendant who seeks reversal of his conviction after a
guilty plea, on the ground that the district court committed plain error under
Rule 11, must show a reasonable probability that, but for the error, he would
not have entered the plea.” 18
       Crain alleged five Rule 11 errors in his motion, but addresses only two
on appeal: the district court’s purported failure to advise him of (1) the
maximum term of supervised release and (2) the maximum sentence if he
violated a condition of supervised release. But, when Crain pleaded guilty, he
had already signed his plea agreement, and he testified that he had read every
provision of the agreement before he signed it. The plea agreement explicitly




       14  United States v. Jacobs, 635 F.3d 778, 780–81 (5th Cir. 2011) (per curiam).
       15  United States v. Scott, 987 F.2d 261, 264 (5th Cir. 1993).
        16 See United States v. Vonn, 535 U.S. 55, 58–59 (2002) (holding that when a defendant

“lets Rule 11 error pass without objection in the trial court[,]” he “has the burden to satisfy
the plain-error rule”); see also United States v. Narvaez, 452 F. App’x 488, 490–91 (5th Cir.
2011) (per curiam) (explaining that a challenge to an appeal waiver’s validity that has a basis
in a Rule 11 error “is in substance an attack on the court’s conduct of the Rule 11 plea
colloquy” that is reviewed for plain error when there is no contemporaneous objection
(citation omitted)); United States v. Oliver, 630 F.3d 397, 411 (5th Cir. 2011) (“Because Oliver
did not specifically object to the district court’s plea colloquy . . . this court reviews [the
defendant’s challenge to his appeal waiver] for plain error.” (citation omitted)).
        17 United States v. Redd, 562 F.3d 309, 314 (5th Cir. 2009) (internal quotation marks

and citation omitted).
        18 United States v. Dominguez Benitez, 542 U.S. 74, 83 (2004).

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                                       No. 15-60146
states that the maximum term of his supervised release was life 19 and that he
could be returned to prison for the entire supervised release term—namely, his
lifetime—for violating its conditions. There is nothing to indicate that if Crain
had received this same information from a different source—specifically, the
district court—he would have made a different decision.
       As for the second alleged error, Crain also complains that he was not
advised that the “minimum” penalty for violating a condition of supervised
release is five years. 20 This failure may not be a Rule 11 error at all: Rule 11
requires the district court to advise defendants of “any maximum possible
penalty, including imprisonment, fine, and term of supervised release,” 21 and
it is not clear that this encompasses the maximum prison term for particular
kinds of violations. 22 But even if it were error, Crain was aware from the plea
agreement that he could be returned to prison for life if he violated supervised
release conditions. The district court specifically told him that the court would
“decide what to do” with someone who violated those conditions and that the
court could send him back to prison for a violation.
       Crain’s post hoc claim that he would not have pled guilty without these
Rule 11 violations is contradicted by his statement at rearraignment that he
had thoroughly read and understood the plea agreement. “Solemn declarations
in open court carry a strong presumption of verity[,]” and “constitute a



       19 The plea agreement incorrectly stated the minimum term of supervised release as
three years, while the correct minimum is five years. 18 U.S.C. § 3583(k) (2006). Crain does
not appear to contend that this error in the plea agreement itself entitles him to withdraw
his guilty plea.
       20 Such a penalty arises only for certain kinds of supervised release violations, namely,

commission of certain criminal offenses. 18 U.S.C. § 3583(k) (2006).
       21 FED. R. CRIM. P. 11(b)(1)(H).
       22 But see United States v. Tuangmaneeratmun, 925 F.2d 797, 803 (5th Cir. 1991)

(“[T]he defendant should be informed that . . . a violation of the conditions of supervised
release can subject the defendant to imprisonment for the entire term of supervised
release[.]”).
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                                       No. 15-60146
formidable barrier in any subsequent collateral proceedings.” 23 Crain’s
testimony at the evidentiary hearing belies his own argument. He admitted
that when he received the PSR, his “main focus” was on the amount of time he
would be imprisoned, not the term or conditions of supervised release. This
further suggests that neither the possible term of supervised release nor the
minimum sentence for specific violations of its conditions were significant
factors in Crain’s decision to plead guilty. Even though Crain now states that
he was “confus[ed]” when the district court’s statement conflicted with the plea
agreement, he did not avail himself of the opportunity to clarify any confusion,
either at the plea hearing or at allocution.
       The cases that Crain cites in support are inapposite. He relies on four
cases in which this court or other Courts of Appeals held that a plea was
involuntary because the district court failed to state the correct maximum term
of supervised release or imprisonment. 24 But in each of those cases, there was
no indication that the defendant was given the correct information in the plea
agreement. 25 Crain may well have hoped for a less onerous sentence, but he
was expressly warned that it could be higher. “[W]hen the record of the Rule
11 hearing clearly indicates that a defendant has read and understands his
plea agreement, and that he raised no question regarding a waiver-of-appeal
provision, the defendant will be held to the bargain to which he agreed[.]” 26
Crain has not shown “a reasonable probability that, but for the error, he would




       23  Blackledge v. Allison, 431 U.S. 63, 74 (1977).
       24  United States v. Wallace, 551 F. App’x 193, 195 (5th Cir. 2014) (per curiam); United
States v. Rivera-Maldonado, 560 F.3d 16, 17–22 (1st Cir. 2009); Scott, 987 F.2d at 263–66;
see also United States v. Bounds, 943 F.2d 541, 542–43, 545–46 (5th Cir. 1991).
        25 Wallace, 551 F. App’x at 195; Rivera-Maldonado, 560 F.3d at 17–22; Scott, 987 F.2d

at 263–66; Bounds, 943 F.2d at 542–43. In Rivera-Maldonado, both the plea agreement and
the district court’s statements were incorrect. Rivera-Maldonado, 560 F.3d at 17–18.
        26 United States v. Portillo, 18 F.3d 290, 293 (5th Cir. 1994).

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                                         No. 15-60146
not have entered the plea.” 27 We are satisfied that the Rule 11 errors Crain
alleges do not invalidate his guilty plea or his collateral-attack waiver.
          2.     Jurisdictional Element of Plea
          The fourth issue on which the district court granted a COA was
“[w]hether the prosecution had subject-matter jurisdiction over [Crain’s] case.”
This amounts to a claim that the government did not have a factual basis
sufficient to support the plea based on the jurisdictional element. If that were
true, the conviction would have to be vacated; 28 but such a conclusion would
not void the government’s jurisdiction to prosecute the offense. The district
court determined that this claim was barred by Crain’s collateral-attack
waiver and did not address its substance. It merely issued a certificate of
appealability on the issue.
          An insufficient factual basis for a plea, however, can also invalidate a
collateral-attack waiver: “Even valid waivers do not bar a claim that the
factual basis is insufficient to support the plea[.]” 29 We therefore construe this
issue as another attack on the waiver and proceed to consider it, even though
the district court did not. Whether Crain’s waiver is valid is an issue of law
that we would review de novo. 30
          To determine whether a defendant’s factual basis is sufficient to support
his guilty plea, the district court must examine each “element[] of the offense
charged[.]” 31 The jurisdictional element of Crain’s offense required that the
images in question be “mailed, or . . . transported in interstate or foreign
commerce, or [have been] produced using materials which have been mailed or



          27 Dominguez Benitez, 542 U.S. at 83.
          28 See United States v. Hildenbrand, 527 F.3d 466, 474 (5th Cir. 2008).
          29 Hildenbrand, 527 F.3d at 474.
          30 Id. (citing United States v. Baymon, 312 F.3d 725, 727 (5th Cir. 2002)).
          31 Id. at 474–75 (quoting United States v. Marek, 238 F.3d 310, 315 (5th Cir. 2001) (en

banc)).
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so shipped or transported, by any means including by computer[.]” 32 We have
not explicitly addressed the question whether images transported over the
Internet to a computer in a different state have been “transported in interstate
commerce,” but we have indicated that images may be “transported . . . in
interstate or foreign commerce via the Internet[.]” 33
       Crain claims that the government “merely presumed that since the
images were discovered on [Crain’s] computer, the jurisdictional nexus had
been met.” This understates the government’s proffer. The government stated
that it possessed e-mails and chats between a computer in Texas, and Crain’s
computer in Mississippi and that these e-mails and chats “trad[ed] . . . visual
images depicting children engaged in sexual[ly] explicit conduct via the
Internet[.]” The images therefore traveled between Texas and Mississippi—
across state lines—via the Internet. The factual basis of the jurisdictional
element is therefore satisfied, so this alternate challenge to Crain’s plea and
collateral-attack waiver also fails. The waiver is therefore valid and bars
Crain’s claims based on the Rule 11 errors, the jurisdictional element of the
offense, and ineffective assistance of appellate counsel. We therefore dismiss
Crain’s appeal of those claims.
B.     Ineffective Assistance of Counsel
       Crain’s collateral-attack waiver does not, however, bar his claims of
ineffective assistance of counsel, because “an ineffective assistance of counsel
argument survives a waiver of appeal . . . when the claimed assistance directly



       32  18 U.S.C. § 2252(a)(4)(B) (2006); see also United States v. Lewis, 554 F.3d 208, 213
(1st Cir. 2009) (“‘Shipped or transported in interstate commerce’ here must require interstate
movement.”). This provision was later expanded to include images “shipped or transported
using any means or facility of interstate or foreign commerce or in or affecting interstate or
foreign commerce[.]” 18 U.S.C. § 2252(a)(4)(B) (Supp. 2008).
        33 United States v. Runyan, 290 F.3d 223, 243 (5th Cir. 2002) (evaluating whether

there was evidence that the defendant “had transported these images in interstate or foreign
commerce via the Internet or any other means”).
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                                       No. 15-60146
affected the validity of that waiver or the plea itself.” 34 This court “review[s] de
novo a district court's conclusions on a § 2255 petition based on ineffective
assistance of counsel[,]” and “review[s] findings of fact for clear error.” 35
       An attorney renders constitutionally ineffective assistance if his
performance is deficient and that deficient performance prejudices the
defendant. 36 A § 2255 movant must show that (1) counsel’s performance fell
below an objective standard of reasonableness, and (2) there is a reasonable
probability that, but for counsel’s deficient performance, the result of the
proceeding would have been different. 37 In the context of a guilty plea, a
movant shows prejudice by establishing “that there is a reasonable probability
that, but for counsel’s errors, he would not have pled guilty and would have
insisted on going to trial.” 38
       1.     Failure to Object to the Court’s Misstatement at Rearraignment
       As detailed above, the undisputed record evidence shows that the written
plea agreement correctly advised Crain that he faced a maximum supervised
release term of life. Crain affirmed that he had read, reviewed with counsel,
and understood this agreement, notwithstanding his conclusional argument to
the contrary. As such, no prejudice resulted from counsel’s failure to object to
the district court’s incorrect statement regarding the maximum term faced by
Crain. 39 Crain thus cannot show that the district court’s denial of relief on this
claim was error.




       34 White, 307 F.3d at 343.
       35 United States v. Pham, 722 F.3d 320, 323 (5th Cir. 2013) (citations omitted).
       36 Strickland v. Washington, 466 U.S. 668, 687 (1984).
       37 Id. at 687–88, 694.
       38 Hill v. Lockhart, 474 U.S. 52, 59 (1985).
       39 See Armstead v. Scott, 37 F.3d 202, 210 (5th Cir. 1994) (a “bare allegation” that the

defendant would have “insisted upon going to trial” was “not sufficient to establish
prejudice”).
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                                       No. 15-60146
       2.     Failure to Advise of Special Conditions of Supervised Release
       Finally, Crain claims that his attorney was ineffective for failing to
advise him of the special conditions of supervised release. Although Crain’s
§ 2255 motion nominally challenges all the special conditions of supervised
release, he effectively complains of only the lifetime computer ban. 40 This court
has generally held that the Sixth Amendment requires defense counsel to
advise defendants only about the direct consequences of pleading guilty, not
the potential collateral consequences. 41 But, in Padilla v. Kentucky, the
Supreme Court held that defense counsel is constitutionally required to
investigate and advise a client about possible deportation consequences of a
plea before the client decides whether to plead guilty. 42 The Court expressed
that it did not need to consider whether the direct/collateral distinction was
appropriate     because     of   the    “unique    nature    of   deportation.” 43    The
characteristics that made deportation “unique” were that it was “particularly
severe[,]” “intimately related to the criminal process[,]” and “nearly an
automatic result” of conviction. 44
       Crain insists that a lifetime computer ban is similarly unique, so that
defense counsel is obligated to warn a client of that potential consequence. One
federal court has suggested that Padilla’s protections could apply to other
collateral consequences. The Eleventh Circuit expanded Padilla to the realm
of civil commitment, holding that the defendant’s attorney performed


       40 At the evidentiary hearing, Crain complained only about the computer and Internet
ban. In fact, Crain testified that he knew that he would be required to register as a sex
offender. Crain’s only mention of the other special conditions in his appellate brief are
conclusory.
       41 See United States v. Amer, 681 F.3d 211, 214 (5th Cir. 2012) (“[Before Padilla v.

Kentucky,] [w]e and other courts reasoned that the Sixth Amendment did not require advice
about collateral consequences[.]”).
       42 Padilla v. Kentucky, 559 U.S. 356, 374 (2010).
       43 Id. at 365.
       44 Id. at 365–66.

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                                        No. 15-60146
deficiently when he “affirmative[ly] [mis]represent[ed] that [the defendant]
would not be exposing himself to further detention past his sentence” in the
form of civil commitment. 45 Addressing Padilla, the Eleventh Circuit explained
that “the Supreme Court has noted that when the law is unclear[,] a criminal
defense attorney must advise his client that the ‘pending criminal charges may
carry a risk of adverse [collateral] consequences.’” 46 But that appeals court did
not analyze the issue at length, and the deficient performance in that case
involved an “affirmative misrepresentation,” rather than the silence at issue
here. 47
       The Seventh Circuit, by contrast, has stated that the Supreme Court’s
focus on the “unique” nature of deportation indicates that the Court “meant to
limit its scope to the context of deportation only.” 48 Two other federal circuits
also declined to extend Padilla to other collateral consequences, 49 but neither
discussed how widely Padilla’s holding might apply, and both compared the
consequences at issue with Padilla’s emphasis on the severity of deportation. 50


       45  Bauder v. Dep’t of Corr., 619 F.3d 1272, 1275 (11th Cir. 2010) (per curiam). But see
Margaret Colgate Love, Collateral Consequences After Padilla v. Kentucky: From Punishment
to Regulation, 31 ST. LOUIS U. PUB. L. REV. 87, 108 (2011) (“While civil commitment is
indisputably severe, it is not ‘automatic’ or ‘mandatory’ in the same way that deportation and
sex offender registration are[.]”).
        46 Bauder, 619 F.3d at 1275 (second alteration in original) (quoting Padilla, 559 U.S.

at 369).
        47 Id. Padilla refused to distinguish “affirmative misadvice” from silence. Padilla, 559

U.S. at 369–70.
        48 United States v. Reeves, 695 F.3d 637, 640 (7th Cir. 2012). There, the court declined

to extend Padilla to defense counsel’s “fail[ure] to advise [the defendant] about the later effect
of a guilty plea on the potential sentence for any future crimes[,]” and emphasized that
Padilla “repeatedly underscored the severity of deportation[.]” Id. at 639–40.
        49 Parrino v. United States, 655 F. App’x 399, 403 (6th Cir. 2016) (“exclusion from

federal health-care programs”); Santiago v. Laclair, 588 F. App’x 1, 3–4 (2d Cir. 2014)
(summary order) (that defendant would “automatically be sentenced to a consecutive term of
discharged portion of [a sentence from an earlier conviction]”).
        50 See Parrino, 655 F. App’x at 403; Santiago, 588 F. App’x at 3–4. The Eleventh

Circuit has also held that a defense attorney’s “failure to inform [a defendant] of the life term
of supervised release was not so deficient as to deprive him of his Sixth Amendment right to
counsel[,]” but did so without citing Padilla, on the grounds that the attorney “informed [the
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                                       No. 15-60146
       It is true that a lifetime computer ban is a harsh penalty. And, after
Crain filed his § 2255 motion, this court ruled that such bans are impermissible
as overbroad and unreasonable. 51 It may not equate to physical “banishment
or exile” 52 or amount to the loss of liberty embodied in a civil commitment, 53
but a lifetime computer ban would “completely preclude [a defendant] from
meaningfully participating in modern society for the rest of his life.” 54 Such
bans also appear intimately related to the criminal process, perhaps even more
so than deportation: Unlike deportation, computer bans may only be imposed
after a conviction. An onerous lifetime computer ban, however, is not “nearly
an automatic result” 55 of conviction. Even though computer bans are often
ordered for sex offenders, lifetime bans are not automatic—it is far more likely
that an offender will receive only a temporary ban.
       We need not determine whether Crain’s counsel was obligated to warn
him of a possible lifetime computer ban, or—if so—whether counsel was
therefore deficient in failing to do so, because Crain has not shown that he was
prejudiced by this failure. The district court did not address the prejudice
prong, but we address it here because it is an issue that we would review de




defendant] that his potential maximum sentence if convicted was life in prison[.]” Osley v.
United States, 751 F.3d 1214, 1226 (11th Cir. 2014).
        51 United States v. Duke, 788 F.3d 392, 398–401 (5th Cir. 2015) (per curiam).
        52 Padilla, 559 U.S. at 373 (citation omitted).
        53 See Bauder, 619 F.3d at 1275.
        54 Duke, 788 F.3d at 400; see also United States v. Sealed Juvenile, 781 F.3d 747, 756

(5th Cir. 2015) (“[A]ccess to computers and the Internet is essential to functioning in today’s
society.”); Emily Brant, Comment, Sentencing “Cybersex Offenders”: Individual Offenders
Require Individualized Conditions When Courts Restrict Their Computer Use and Internet
Access, 58 CATH. U. L. REV. 779, 799 (2009) (“[A] strict ban on Internet access as a condition
of release would prohibit the offender from: getting money from an ATM; working for any
company that communicates primarily by e-mail; attending college; starting a business; and
even owning a cell phone, now that most cell phones have Internet capabilities.”).
        55 Padilla, 559 U.S. at 366.

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                                       No. 15-60146
novo. 56 The Supreme Court recently addressed the prejudice issue in Lee v.
United States, in which it considered whether an attorney’s misinformation
about the consequences of a guilty plea on immigration status prejudiced the
defendant, a question not addressed in Padilla. 57 Lee, an immigrant from
South Korea, was charged with “possessing ecstasy with intent to
distribute[.]” 58 During plea discussions, “Lee informed his attorney of his
noncitizen status and repeatedly asked him whether he would face deportation
as a result of the criminal proceedings.” 59 The attorney “told Lee that he would
not be deported as a result of pleading guilty.” 60 This was incorrect: “[A]
noncitizen convicted of such an offense is subject to mandatory deportation.” 61
At a hearing on Lee’s § 2255 motion, “both Lee and his plea-stage counsel
testified that deportation was the determinative issue in Lee’s decision
whether to accept the plea.” 62
       The Court noted that likelihood of success at trial was a strong indicator
whether a defendant would plead guilty, but also concluded that “where [a
court is] . . . asking what an individual defendant would have done, the
possibility of even a highly improbable result may be pertinent to the extent it
would have affected his decisionmaking.” 63 The Court also explained that



       56  United States v. Bass, 310 F.3d 321, 325 (5th Cir. 2002) (“A district court’s
conclusions concerning a § 2255 petitioner’s claims of ineffective assistance of counsel involve
mixed questions of fact and law, which we review de novo.”) (citation omitted); cf. United
States v. Flores, 135 F.3d 1000, 1002 (5th Cir. 1998) (“[B]ecause we may affirm on any
grounds that were urged below, we address as a threshold issue [an issue the district court
did not examine.]”).
       57 Lee v. United States, 137 S. Ct. 1958, 1962 (2017); see Padilla, 559 U.S. at 374

(“Whether Padilla is entitled to relief will depend on whether he can demonstrate
prejudice . . . , a question we do not reach[.]”).
       58 Lee, 137 S. Ct. at 1962–63.
       59 Id. at 1963.
       60 Id.
       61 Id. (citations omitted).
       62 Id. (citation and internal quotation marks omitted).
       63 Id. at 1966–67.

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                                       No. 15-60146
“[c]ourts should not upset a plea solely because of post hoc assertions from a
defendant    about     how     he    would      have     pled    but    for   his   attorney’s
deficiencies[,]”and that they “should instead look to contemporaneous evidence
to substantiate a defendant’s expressed preferences.” 64 The Court noted that
“Lee’s claim that he would not have accepted a plea had he known it would
lead to deportation [wa]s backed by substantial and uncontroverted
evidence[,]” 65 and concluded that Lee had therefore shown a “reasonable
probability that, but for [his] counsel’s errors, he would not have pled guilty
and would have insisted on going to trial.” 66
      That is not the case here. Crain presents only self-serving post hoc
assertions about how he would have pled. The contemporaneous evidence at
the time he pleaded guilty, by contrast, does not weigh in his favor. The
government points out that (1) Crain admitted to possessing child pornography
when the search warrant was executed at his home, (2) proceeding to trial may
have subjected him to additional charges and deprived him of a sentencing
credit for acceptance of responsibility, (3) he did not object to the computer ban
at sentencing, and (4) he testified that when he received the PSR, his primary
focus was on the amount of time he would spend in custody, not the term or
conditions of supervised release. Crain’s “post hoc assertion” is not sufficient to
“upset [his] plea[.]” 67 Crain thus was not prejudiced by his attorney’s failure to
inform him that he faced a possible lifetime computer ban as a condition of
supervised release. We therefore affirm the district court’s denial of Crain’s
motion as to his ineffective assistance claims.




      64 Id. at 1967.
      65 Id. at 1969.
      66 Id. (alteration in original) (quoting Hill, 474 U.S. at 59).
      67 Id. at 1967.

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                                      No. 15-60146
       We note, as an aside, that after Crain filed his § 2255 motion, but before
he filed his opening brief in this case, this court decided United States v. Duke,
holding that absolute, lifetime bans on computer usage as a condition of
supervised release were overly broad and impermissible. 68 Crain has never
invoked Duke, and, even if he had, his valid waiver would bar such a
challenge. 69 We note, however, that Crain may seek modification of conditions
of supervised release in the district court. 70
                                    III. CONCLUSION
       We DISMISS Crain’s appeal as to the alleged Rule 11 errors, the
jurisdictional element of the offense, and ineffective assistance of appellate
counsel. We AFFIRM the district court’s denial of Crain’s motion regarding his
claims of ineffective assistance of counsel in the district court.




       68 Duke, 788 F.3d at 398–401.
       69 Further, this court has not decided whether Duke is retroactive.
       70 18 U.S.C. § 3583(e)(2) (2006); FED. R. CRIM. P. 32.1(c); see also United States v.

Lyons, 482 F. App'x 891, 893 n.3 (5th Cir. 2012) (per curiam) (“[D]efendants have prompt
access to modification of supervised release[.]”) (citation omitted).
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