     Case: 13-40562       Document: 00513124004         Page: 1     Date Filed: 07/21/2015




         IN THE UNITED STATES COURT OF APPEALS
                  FOR THE FIFTH CIRCUIT


                                       No. 13-40562                       United States Court of Appeals
                                                                                   Fifth Circuit

                                                                                 FILED
UNITED STATES OF AMERICA,                                                    July 21, 2015
                                                                            Lyle W. Cayce
               Plaintiff - Appellee                                              Clerk

v.

JORGE ROLANDO GARCIA, SR.,

               Defendant - Appellant




                   Appeals from the United States District Court
                        for the Southern District of Texas
                              USDC No. 7:10-CV-11


Before JOLLY and DENNIS, Circuit Judges, and REEVES,* District Judge.
PER CURIAM:**
       In this § 2255 proceeding, Jorge Garcia raises a claim of ineffective
assistance of counsel under the Sixth Amendment based on his trial counsel’s
alleged failure to advise him about the consequences of proceeding to trial
rather than pleading guilty. Without holding an evidentiary hearing, the
district court denied the claim. Because there is a material fact-issue as to




       * District Judge of the Southern District of Mississippi, sitting by designation.
       ** Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.
R. 47.5.4.
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the advice, if any, provided to Garcia by his trial counsel, the record does not
“conclusively show that [Garcia] is entitled to no relief.” See 28 U.S.C. §
2255. Consequently, the district court abused its discretion in denying
Garcia’s § 2255 motion without an evidentiary hearing. (“Unless the motion
and the files and records of the case conclusively show that the prisoner is
entitled to no relief, the court shall grant a prompt hearing thereon,
determine the issues and make findings of fact and conclusions of law with
respect thereto.”).
       We, therefore, VACATE the district court’s order denying Garcia’s § 2255
motion and REMAND the case for further proceedings, including an
appropriate hearing to resolve all material factual disputes related to Garcia’s
claim. 1 We express no view on the merits.
                                                         VACATED AND REMANDED.




       1 We vacate only that portion of the district court’s order dealing with Ground 1 of
Garcia’s § 2255 motion (i.e., the claim of ineffective assistance of counsel related to advising
Garcia whether to plead guilty).
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                                 No. 13-40562
E. GRADY JOLLY, Circuit Judge, concurring:
      Although Judge Dennis’s special concurrence makes the case for one side
of the controversy, the Supreme Court has never decided whether there is a
Sixth-Amendment right to having counsel effectively inform a defendant of the
consequences of not entering an open guilty plea—i.e., cases where the
defendant pleads guilty in the absence of a plea offer from the government. It
is an open question. See, e.g., Missouri v. Frye, 132 S. Ct. 1399, 1405 (2012)
(discussing communication of the terms of a formal plea offer); Lafler v. Cooper,
132 S. Ct. 1376, 1387 (2012) (noting that Frye Court was not discussing
scenarios where “no plea offer is made”). If this issue comes before the Court
at a future time, the Court might find it helpful to consider both sides of the
question, after counseled briefing and argument, and not necessarily rely on
Judge Dennis’s special concurrence.




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                                  No. 13-40562
JAMES L. DENNIS, Circuit Judge, concurring:
      I concur in the court’s summary vacatur and remand, but I write
separately to provide a fuller explanation for why I think appellant Jorge
Rolando Garcia, Sr.’s claim has potential merit that the district court failed to
notice.
      Garcia was convicted of possession with intent to distribute marijuana
and conspiracy to do the same and was sentenced to 235 months of
imprisonment. He filed the present motion for habeas corpus under 28 U.S.C.
§ 2255, claiming, as pertinent here, that his trial attorney failed to provide
effective assistance of counsel under the Sixth Amendment in advising him on
the question of whether to plead guilty. He contends, specifically, that his
attorney did not advise him that, irrespective of any agreement with the
government, if he pleaded guilty he would likely receive a sentencing reduction
for acceptance of responsibility. See U.S.S.G. § 3E1.1. He further contends
that, had he known of the potential reduction for accepting responsibility and
been aware that he did not need the government’s consent to receive it, he
would have pleaded guilty.
      It is well established that criminal defendants are entitled under the
Sixth Amendment to the effective assistance of counsel when considering how
to plead. Missouri v. Frye, 132 S. Ct. 1399, 1405 (2012); Lafler v. Cooper, 132
S. Ct. 1376, 1384 (2012); Padilla v. Kentucky, 559 U.S. 356, 364 (2010). To
state a claim of the deprivation of effective assistance of counsel, the defendant
must allege, first, that the representation of his attorney was deficient in that
it fell below an objective standard of reasonableness and, second, that the
deficient performance prejudiced him. Strickland v. Washington, 466 U.S. 668,
687-88, 694 (1984).
      If Garcia’s allegation is true, that his attorney did not advise him as to
the potential for an acceptance-of-responsibility reduction, thus leaving him
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with the belief that he had nothing to gain by pleading guilty, there can be
little question that the attorney’s performance was deficient. See United States
v. Grammas, 376 F.3d 433, 437 (5th Cir. 2004).
      The next question is whether Garcia’s allegations suffice to state a claim
of prejudice. Prejudice means “a reasonable probability that, but for counsel’s
unprofessional errors, the results of the proceeding would have been different.”
Strickland, 466 U.S. at 694. In the context of Garcia’s claim presented in this
case, the question is whether there is a reasonable probability that, had Garcia
been aware of the potential sentencing reduction for accepting responsibility,
he would have admitted his criminal conduct and pleaded guilty, received the
reduction, and, at the end of the day, received a sentence less than the one that
was imposed.
      Is there a reasonable probability that, had Garcia been advised properly,
he would have admitted his criminal conduct and pleaded guilty? Garcia says
he would have, and, at this stage of the case, we have no reason to doubt it.
See United States v. Reed, 719 F.3d 369, 375 (5th Cir. 2013).
      Is there a reasonable probability that, had Garcia admitted his criminal
conduct and pleaded guilty, he would have received a sentencing reduction for
accepting responsibility? Under the Sentencing Guidelines, a defendant may
receive a sentencing reduction if he “clearly demonstrates acceptance of
responsibility for his offense.” § 3E1.1(a). When defendants enter a guilty plea
prior to trial and truthfully admit their criminal conduct, the reduction is often
granted as a matter of routine. See, e.g., United States v. Fisher, 38 F. App’x
39, 41 (2d Cir. 2002) (unpublished) (stating, in dicta, that defendants who
plead guilty are “routinely” afforded the reduction); United States v. Rogers,
972 F.2d 489, 493 (2d Cir. 1992) (same); United States v. Baird, 109 F.3d 856,
870 (3d Cir. 1997) (same); United States v. Whitson, 125 F.3d 1071, 1075 (7th
Cir. 1997) (“frequently granted”); United States v. Kimes, 624 F. Supp. 2d 565,
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572 (W.D. La. 2009) (“routinely”); United States v. Santos, No. 1:02-CR-127,
2003 WL 21088960, at *2 (E.D. Tenn. May 2, 2003) (same); Wallace v. United
States, No. 4:10-CR-116, 2013 WL 1395685, at *3 (E.D. Va. Apr. 4, 2013) (“a
matter of routine”); Lejhanec v. United States, No. 1:99-CV-4387, 1999 WL
1487594, at *6 (E.D.N.Y. Nov. 29, 1999) (“a matter of course”). In fact, it is the
law of this circuit that, if the defendant pleads guilty and admits his criminal
conduct, the district court commits reversible error if it declines to award the
reduction without a “foundation” for doing so.               United States v. Patino-
Cardenas, 85 F.3d 1133, 1136 (5th Cir. 1996). Here, nothing in the record
suggests that the district court would have any foundation for denying the
reduction. Cf. United States v. Faubion, 19 F.3d 226, 229-30 (5th Cir. 1994)
(defendant’s conduct as a fugitive and denial of knowledge of the crime were
“diametrically inconsistent with any acceptance of responsibility”). There is,
therefore, a reasonable probability that Garcia would have received the
reduction. 1
       Is there a reasonable probability that, had Garcia pleaded guilty and
received the reduction, his sentence would have been shorter than the one
imposed? Specifically, we must take note that Garcia was charged with three
counts of criminal conduct and was, at trial, only convicted of two. If he had
pleaded guilty, he would have had to plead guilty to all three counts. 2
Therefore, the question we must address is, if Garcia had pleaded guilty to the
additional count, the one of which he was acquitted, would his sentencing
exposure have differed? The short answer is no. With respect to the statutory


       1Subsection (b) of § 3E1.1 provides an additional reduction in certain instances when
the government has moved for such. It is possible, but more speculative, that Garcia could
have received that further reduction.
       2 We must assume that Garcia would have pleaded guilty to all three counts because
he does not allege that a competent attorney could have had the third count dismissed, nor
is there any basis in the record for us to presume such.
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sentencing range, the additional conviction would have made no difference.
Garcia was convicted of a crime (count five of the indictment) that exposed him
to a mandatory minimum of ten years of incarceration and a maximum of life
imprisonment.      21 U.S.C. § 841(b)(1)(A)(vii).      The crime of which he was
acquitted (count two) exposed him to less: between five and forty years of
incarceration. § 841(b)(1)(B)(vii). In other words, if Garcia had pleaded guilty
to all three counts, the statutory sentencing range would have been the same.
The same is true for the Sentencing Guidelines range. Even though Garcia
was acquitted of one count, he was nevertheless held responsible at sentencing
for the alleged conduct underlying that count.            Presentence Investigation
Report ¶ 64; see United States v. Valdez, 453 F.3d 252, 264 (5th Cir. 2006) (“A
jury's verdict of acquittal does not prevent the sentencing court from
considering conduct underlying the acquitted charge, so long as that conduct
has been proved by a preponderance of the evidence.”). In short, had Garcia
pleaded guilty to all three counts, he would have faced the same sentencing
ranges under the relevant statutes and Guidelines provisions as he faced after
trial. The only difference would have been the reduction for acceptance of
responsibility. There is, therefore, a reasonable probability that Garcia would
have received a shorter sentence than the one imposed. 3
      For these reasons, Garcia’s Sixth Amendment claim cannot be dismissed
as a matter of law. Garcia says that his attorney did not advise him as to the
possibility of receiving a sentencing reduction for acceptance of responsibility.
Had his attorney advised him properly, he would have pleaded guilty, he says.
Under the applicable law, there is more than a reasonable probability that, had



      3 We need not determine how much shorter Garcia’s probable sentence would have
been. See United States v. Rivas-Lopez, 678 F.3d 353, 357 (5th Cir. 2012) (“Any amount of
additional jail time is significant for purposes of showing prejudice.”).

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                                 No. 13-40562
he done so, he would have received a shorter sentence. Garcia has alleged
deficiency and prejudice, and the district court erred in denying him the
opportunity to prove his allegations.




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