     Case: 13-50085     Document: 00512548304    Page: 1   Date Filed: 02/28/2014




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

                                                                          FILED
                                 No. 13-50085                      February 28, 2014
                                                                     Lyle W. Cayce
                                                                          Clerk

UNITED STATES OF AMERICA,

                                            Plaintiff-Appellee,
v.

ANA VICTORIA URIAS-MARRUFO,

                                            Defendant-Appellant.



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



Before DAVIS, GARZA and DENNIS, Circuit Judges.
W. EUGENE DAVIS, Circuit Judge:
      Defendant Ana Victoria Urias-Marrufo (“Urias”) appeals from the
district court’s denial of her motion to withdraw her guilty plea.         Following
that denial, the district court entered a final judgment of conviction and
sentenced her to imprisonment of 37 months.      We vacate and remand.
                                       I.
      Urias has lived in Odessa, Texas since 1993. She is not a citizen of the
United States but obtained permanent resident status in 1996 when she was
eight years old.      On January 12, 2012, she was indicted with five other
individuals for possession with intent to distribute 100 kilograms or more of
marijuana in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2.           She was
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                                 No. 13-50085

initially represented by Raymond Fivecoat, but the court granted a motion to
substitute counsel on February 2, 2012, substituting Laura Carpenter for
Fivecoat.    On March 1, 2012, she pled guilty before a magistrate judge
pursuant to a written plea agreement.          The district court adopted the
magistrate judge’s recommendation and accepted the plea on April 4, 2012.
       Following the entry of her guilty plea but prior to sentencing, Urias
obtained new counsel, Steve Spurgin, and the district court granted Urias’s
second motion to substitute counsel on May 16, 2012.        Two days later, she
filed a motion to withdraw her guilty plea under Fed. R. Crim. P. 11, based
primarily on Padilla v. Kentucky, 559 U.S. 356 (2010), arguing that she
received ineffective assistance of counsel under the Sixth Amendment which
precluded her from making a knowing and voluntary guilty plea under Rule
11.   Specifically, in a handwritten statement made under penalty of perjury
and in her testimony at the hearing on her motion to withdraw, she claimed
that neither Fivecoat nor Carpenter informed her that her guilty plea would
subject her to certain deportation.   She asserted that if she had known for
sure at the time she pled guilty that she would be deported as a result, she
would not have entered the guilty plea.
       The district court denied the motion at the hearing and issued a
memorandum order afterward.       In short, the district court found that, under
the totality of the circumstances, including the factors set out in United States
v. Carr, 740 F.2d 339 (5th Cir. 1984), Urias should not be permitted to
withdraw her guilty plea under Rule 11.        The district court reasoned that
although Urias claimed that her first two attorneys had not informed her of
certain immigration consequences under Padilla, that issue pertained only to
a collateral attack under 28 U.S.C. § 2255 for ineffective assistance of counsel


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                                        No. 13-50085

and could not be addressed on direct appeal on a motion to withdraw her guilty
plea.     Thus, the district court denied the motion and subsequently sentenced
her to 37 months in prison.         She now appeals the district court’s denial of her
motion to withdraw her guilty plea.
                                              II.
         We have jurisdiction over this timely criminal appeal under 28 U.S.C.
§ 1291.      We review the district court’s denial of Urias-Marrufo’s motion to
withdraw her guilty plea for an abuse of discretion. 1 “A district court abuses
its discretion if it bases its decision on an error of law or a clearly erroneous
assessment of the evidence.” 2
                                              III.
         Urias argues that the district court abused its discretion when it denied
her motion to withdraw her guilty plea. There is no absolute right for a
defendant to withdraw a plea. 3 However, a defendant may withdraw a guilty
plea after the district court has accepted it but prior to sentencing it if she “can
show a fair and just reason for requesting the withdrawal.” 4 In our review of
the denial of a motion to withdraw a guilty plea, this court employs the seven-
factor Carr test:
                (1) whether or not the defendant has asserted his
                innocence; (2) whether or not the government would
                suffer prejudice if the withdrawal motion were
                granted; (3) whether or not the defendant has delayed
                in filing his withdrawal motion; (4) whether or not the

1United States v. Grant, 117 F.3d 788, 789 (5th Cir. 1997 (citing United States v. Henderson,
72 F.3d 463, 465 (5th Cir. 1995)).
2   United States v. Mann, 161 F.3d 840, 860 (5th Cir. 1998).
3   United States v. Lampazianie, 251 F.3d 519, 523–24 (5th Cir. 2001).
4   FED. R. CRIM. P. 11(d)(2)(B).

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                                         No. 13-50085

                  withdrawal would substantially inconvenience the
                  court; (5) whether or not close assistance of counsel
                  was available; (6) whether or not the original plea was
                  knowing and voluntary; and (7) whether or not the
                  withdrawal would waste judicial resources . . . . 5

We also consider, where applicable, “the reasons why a defendant delayed in
making his withdrawal motion.” 6 The above factors are non-exclusive, and we
ultimately examine the totality of the circumstances. 7
         The district court found that each of the seven Carr factors weighed
against granting Urias’s motion to withdraw. Although Urias discusses all of
the factors on appeal, her primary argument focuses on two factors in
particular. We find at the outset that the district court did not abuse its broad
discretion with respect to its findings on the other five factors, and we turn our
attention to her critical points. She claims that the district court abused its
discretion because (a) she did not have close assistance of counsel at the time
the plea was made, and (b) her plea was not knowing and voluntary because
she had ineffective assistance of counsel under Padilla because she was not
informed prior to her guilty plea that she would definitely be deported as a
consequence of pleading guilty. Although Urias’s brief conflates these two
factors, they are distinct and must be addressed separately.
                                               IV.
         Determining whether Urias received close assistance of counsel
“requires a fact-intensive inquiry.” 8 This inquiry is distinct from whether she


5   Carr, 740 F.2d at 343–44 (footnotes omitted).
6   Id. at 344.
7   Id. (citing United States v. Morrow, 537 F.2d 120, 146 (5th Cir. 1976).
8   United States v. McKnight, 570 F.3d 641, 646 (5th Cir. 2009).

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received effective assistance of counsel. 9 Ineffective assistance is a basis for
invalidating a conviction under the Sixth Amendment and is not, strictly
speaking, relevant to the decision of whether Defendant was denied close
assistance of counsel under Carr analysis. 10            In Carr, for example, the
defendant argued that the district court abused its discretion in denying his
motion to withdraw his guilty plea because his trial counsel failed to inform
the defendant of a potential defense to the charge against him. 11                The
evidence, on the other hand, showed that the defendant’s attorney closely
assisted the defendant by (1) informing him of potential conflicts of interest,
(2) negotiating a favorable plea agreement with the government, and (3)
questioning defendant about his reliance on the advice of previously retained
counsel with regards to tax matters. 12 We held in Carr that the defendant
had received close assistance of “highly effective counsel.” 13
            At the plea hearing before the magistrate judge, Urias testified that she
had discussed with her attorney the possible adverse immigration
consequences of pleading guilty to a felony offense. She acknowledged she
understood that, by pleading guilty, she “may be deported and removed from
the United States, [and] that [she] might never be permitted to enter or reside
in the United States lawfully” again. Nevertheless, Urias chose to continue
with her guilty plea.



9    Id.
10   Id.
11 Carr, 740 F.2d at 342-43. See also McKnight, 570 F.3d 641, 646 (5th Cir. 2009)
(summarizing the close-assistance analysis in Carr).
12   Id.
13   Carr, 740 F.2d at 345.

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         The record in this case reflects that counsel at the plea hearing for Urias
did not file any substantive motions, but this is not dispositive. As stated
earlier, a district court abuses its discretion if it denies a defendant’s motion to
withdraw a guilty plea based on an error of law or “a clearly erroneous
assessment of the evidence.” 14 Urias’s statements before the magistrate judge
provide a sufficient basis for the district court to find that close assistance of
counsel was available to Urias.            Thus, the district court’s finding was not
clearly erroneous and does not amount to an abuse of discretion.
                                              V.
         We next look to whether Urias’s guilty plea was knowing and voluntary,
which is inextricably tied to her ineffective assistance of counsel claim under
the Sixth Amendment. We reiterate that there is a significant distinction
between close assistance of counsel under Carr’s Rule 11 analysis and Sixth
Amendment effective assistance of counsel under Strickland v. Washington,
466 U.S. 668 (1984) and its progeny, including Padilla. Counsel’s assistance
may be close without being effective.
         To enter a knowing and voluntary guilty plea, the defendant must have
a “full understanding of what the plea connotes and of its consequence.” 15 The
defendant must have notice of the nature of the charges against her, she must
understand the consequences of her plea, and must understand the nature of
the constitutional protections she is waiving. 16 For a guilty plea to be
voluntary, it must “not be the product of ‘actual or threatened physical harm,
or . . . mental coercion overbearing the will of the defendant’ or of state-induced

14   Mann, 161 F.3d at 860.
15   Boykin v. Alabama, 395 U.S. 238, 244 (1969).
16   Matthew v. Johnson, 201 F.3d 353, 365 (5th Cir. 2000).

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emotions so intense that the defendant was rendered unable to weigh
rationally his options with the help of counsel.” 17                   The crux of Urias’s
argument is that she did not enter her guilty plea knowingly because she had
ineffective assistance of counsel and was not sufficiently informed of the
consequences of her plea. Thus, in Urias’s view, she should have been allowed
to withdraw her plea on direct appeal rather than wait until a collateral attack
to do so, and the district court erred in not addressing it.
         Claims for ineffective assistance of counsel are analyzed under the
Supreme Court’s two-prong Strickland test, which first asks whether
“counsel’s        representation       ‘fell      below   an    objective     standard      of
reasonableness.’” 18 Next, it asks “whether ‘there is a reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding would
have been different.’” 19 Padilla broke new ground by applying the Strickland
test in a new context: counsel’s advice regarding deportation. 20
         In Padilla, the Supreme Court announced for the first time that defense
counsel has an obligation under the Sixth Amendment to inform his noncitizen
client “that the offense to which he was pleading guilty would result in his
removal from this country.” 21 The Court defined the scope of this duty as
follows:
                When the law is not succinct and straightforward . . . ,
                a criminal defense attorney need do no more than


17   Id. (quoting Brady v. United States, 397 U.S. 742, 750 (1970)).
18   Padilla, 559 U.S. at 366 (quoting Strickland, 466 U.S. at 688).
19   Id. (quoting Strickland, 466 U.S. at 694).
20   Chaidez v. United States, 133 S. Ct. 1103, 1108-10, 185 L. Ed. 2d 149 (2013).
21 Id. at 360; see also id. at 367 (“We conclude that advice regarding deportation is not
categorically removed from the ambit of the Sixth Amendment right to counsel.”)

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                   advise a noncitizen client that pending criminal
                   charges may carry a risk of adverse immigration
                   consequences. But when the deportation consequence
                   is truly clear, as it was in this case, the duty to give
                   correct advice is equally clear. 22

         Thus, Padilla focuses on the first prong of the Strickland test, the
reasonableness of counsel’s representation.                The Supreme Court cautioned
that a defendant seeking to invoke the rule of Padilla would still have to prove
the Strickland test’s much more difficult second prong, i.e., convince the
district court “that a decision to reject the plea bargain would have been
rational under the circumstances.” 23
         Padilla was decided in a collateral proceeding, not a direct criminal
appeal, but the new duty it imposed on defense counsel under the Sixth
Amendment raises concerns which a court should address sooner rather than
later if clearly presented in a direct proceeding. Urias’s combining a Rule 11
issue (whether her guilty plea was knowing and voluntary) with a Sixth
Amendment issue (whether she received effective assistance of counsel) is a bit
unusual in this circuit, but it is not forbidden. “The general rule in this circuit
is that a claim of ineffective assistance of counsel cannot be resolved on direct
appeal when the claim has not been before the district court since no opportunity
existed to develop the record on the merits of the allegation.” 24                      More
specifically, “[w]e do not review a claim of ineffective assistance of counsel on
direct appeal unless the district court has first addressed it or unless the record



22   Id. at 369.
23   Id. at 372 (citing Roe v. Flores–Ortega, 528 U.S. 470, 480, 486 (2000)).
24   United States v. London, 568 F.3d 553, 562 (5th Cir. 2009) (emphasis added).

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is sufficiently developed to allow us to evaluate the claim on its merits.” 25
(Most sister circuits similarly permit ineffective assistance of counsel claims
on direct appeal when appropriately presented.                   26   )    Thus, there is no
impediment under this circuit’s precedent to our reviewing Urias’s Padilla
claim if the district court addressed it or if the record is sufficiently developed
to address the merits on appeal.
       Urias clearly presented her Padilla claim below as a claim for ineffective
assistance of counsel under the Sixth Amendment, and she re-urges that claim
on appeal. Urias correctly argues that, under Padilla, she was required to be



25 United States v. Villegas–Rodriguez, 171 F.3d 224, 230 (5th Cir. 1999) (addressing the
merits of an ineffective assistance claim even though it was raised for the first time because
the record was sufficiently developed); see also United States v. McDonald, 416 F. App'x 433,
436 (5th Cir. 2011) (addressing the merits of an ineffective assistance of counsel claim on
direct appeal where the district court had misapplied Strickland to the facts presented in
sworn affidavits by the defendant and his counsel).
26 See, e.g., United States v. Pellerito, 878 F.2d 1535, 1537-38 (1st Cir. 1989) (applying two-
step Strickland analysis to withdrawal of a guilty plea for ineffective assistance of counsel to
require defendant to show both that the representation “fell below an objective level of
reasonableness” and that prejudice would have resulted, i.e., that the defendant “would not
have pleaded guilty and would have insisted on going to trial” if not for the unreasonable
representation); United States v. Arteca, 411 F.3d 315, 319-20 (2d Cir. 2005) (similar); United
States v. Jones, 336 F.3d 245, 254 (3d Cir. 2003) (“’[A] narrow exception to the rule that
defendants cannot attack the efficacy of their counsel on direct appeal’ exists ‘[w]here the
record is sufficient to allow determination of ineffective assistance of counsel.’” (quoting
United States v. Headley, 923 F.2d 1079, 1083 (3d Cir. 1991))); United States v. Wynn, 663
F.3d 847 (6th Cir. 2011), cert. denied, 132 S. Ct. 1949, 182 L. Ed. 2d 803 (2012) (“’[O]rdinarily
we will not review a claim of ineffective assistance of counsel on direct appeal because the
record is usually insufficient to permit an adequate review of such a claim.’ An exception
exists, however, when ‘the record is adequately developed to allow the court to properly assess
the merits of the issue.’” (citations omitted)); United States v. Lundy, 484 F.3d 480, 484 (7th
Cir. 2007) (“Ineffective assistance of counsel can render a plea agreement involuntary, and is
therefore a valid basis for withdrawing a guilty plea.” (citing Hill v. Lockhart, 474 U.S. 52,
57 (1985), and United States v. Wallace, 276 F.3d 360, 366 (7th Cir. 2002)); United States v.
Cruz, 643 F.3d 639, 642 (8th Cir. 2011) (applying Strickland analysis); and United States v.
Hamilton, 510 F.3d 1209, 1213 (10th Cir. 2007) (applying rule similar to Villegas–Rodriguez,
Jones, and Wynn, supra).

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                                    No. 13-50085

advised of the certain deportation consequences of her plea prior to her plea
hearing. 27
         In this case Urias presented testimony in a handwritten statement
subject to perjury and at the hearing on her motion to withdraw her plea that
she was never informed by counsel prior to entering her guilty plea that she
would certainly be deported.        Specifically, she claimed that her original
attorney, Fivecoat, did not advise her that she was subject to mandatory
deportation as a result of the plea.    She claimed that Fivecoat knew that she
was a non-citizen and told her only that her bond would be denied because of
her resident status.     She also claimed she had not talked to Carpenter until
the day she entered her guilty plea, and Carpenter did not advise her that she
would definitely be deported as a consequence of pleading guilty.
         Urias testified that she did not become concerned about her immigration
status until after entering her guilty plea, when she spoke to “one of the girls
I have in the tank,” who asked her whether her charge was a deportable
offense.      She claimed that she told her mother, but when her mother asked
Carpenter about the immigration effects, Carpenter did not know because she
was not an immigration lawyer.        Finally, Urias asserted in her handwritten
statement: “If I had known for sure at the time I [pled] guilty that I would get
deported after I [serve] my sentence, I would not [have] said guilty.”
         Thus, the district court had before it facts which, if true, would entitle
Urias to relief under Padilla. The district court concluded, however, that the
duty established in Padilla to specifically warn of immigration consequences
certain to occur applied only to habeas claims for ineffective assistance of


27   559 U.S. at 369.

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                                  No. 13-50085

counsel under 28 U.S.C. § 2255, and not in the context of the withdrawal of a
guilty plea. Thus, the court reasoned, the distinction between possible and
certain immigration consequences only matters in claims for ineffective
assistance of counsel in a collateral attack, as in Padilla. The district court
found it sufficient, absent the Sixth Amendment considerations required by
Padilla, that Urias was made aware of the possible immigration consequences
of her plea, as evidenced by her colloquy with the magistrate judge during the
plea hearing, and therefore she had knowingly and voluntarily entered her
guilty plea.
      We find that the district court erred in concluding that it could not, under
Fifth Circuit law, address Urias’s Padilla claim. Urias presented her Padilla
claim as clearly as possible to the district court as well as facts which, if true,
would support her claim. The district court, having already been in charge of
the case and familiar with Urias, the lawyers, and any other relevant actors,
was in the best position to evaluate Urias’s credibility compared to a later court
in a habeas proceeding, and it would have added little or no burden to the
district court’s docket.   Indeed, the district court received Urias’s sworn
statement and heard her testimony at the motion to withdraw her plea. The
court made no findings on these facts with respect to the Padilla claim only
because it erroneously declined to address that claim.
      Padilla, which announced a new, clearly defined, and relatively limited
duty for criminal defense attorneys, concerns a narrow factual inquiry
compared to most Strickland claims: whether the defendant was informed by
defendant’s counsel of certain immigration consequences, and whether
prejudice resulted therefrom. It is counsel’s duty, not the court’s, to warn of
certain immigration consequences, and counsel’s failure cannot be saved by a


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                                       No. 13-50085

plea colloquy. 28 Thus, it is irrelevant that the magistrate judge asked Urias
whether she understood that there might be immigration consequences and
that she and her attorney had discussed the possible adverse immigration
consequences of pleading guilty.
       We hold that when a Padilla claim is sufficiently presented during a
motion to withdraw a plea, both legally and factually, a district court errs in
failing to address the claim.          Moreover, if the court finds that a Padilla
violation occurred, that finding compels the court to permit the defendant to
withdraw the guilty plea.
       Here, we note that the court indicated at the hearing on the motion to
withdraw that it found at least some of Urias’s explanations incredible with
respect to her other Rule 11 claims. Because the district court did not make
factual findings on the Padilla claim specifically, however, we vacate and
remand for the district court to address the merits of that claim. On remand,
the district court has discretion to hold an additional evidentiary hearing but
is not required to do so. The district court’s findings of fact are entitled to
great deference, and we neither upset any of the district court’s prior findings
of fact nor mandate a particular result on remand. We remand only for the
district court to consider additional evidence if needed and, for the first time,
address Urias’s squarely presented Padilla claim.




28 See Marroquin v. United States, 480 F. App'x 294, 299 (5th Cir. 2012) (Dennis, J.,
concurring) (“[T]he judicial plea colloquy is no remedy for counsel's deficient performance in
fulfilling these obligations.”).

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                               No. 13-50085

                                    VI.
      Accordingly, we vacate and remand for further proceedings consistent
with this opinion.




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                                       No. 13-50085

EMILIO M. GARZA, Circuit Judge, specially concurring:
         The majority holds that a district court must consider a Padilla claim
that is sufficiently presented, both legally and factually, as part of a Rule 11
motion to withdraw a plea.             In other words, Padilla is not relegated to
collateral proceedings. Ante at 12.       I join this holding in full.   However, I read
the majority only to hold that Urias’s claim—that her attorney did not advise
her of the certainty of deportation—must be reviewed under Rule 11, not that
Padilla requires counsel to advise that deportation is a certain consequence of
a guilty plea.
         The scope of the duty established in Padilla v. Kentucky, 559 U.S. 356
(2010), is unclear.       The Court initially states, “we agree              . . . that
constitutionally competent counsel would have advised [Padilla] that his
conviction for drug distribution made him subject to automatic deportation.”
Id. at 360.      This seems to suggest that “certainty” would be the requisite
advice.     However, the most definite statement of the Court’s holding is this:
“We now hold that counsel must inform her client whether his plea carries a
risk of deportation.”    Id. at 374.    This, on the other hand, suggests that advice
about “risk” is sufficient to discharge counsel’s duty.
         Our circuit has subsequently described the Padilla holding thusly: “[T]he
Supreme Court held . . . that the Sixth Amendment imposes on attorneys
representing noncitizen criminal defendants a constitutional duty to advise the
defendants about the potential removal consequences arising from a guilty
plea.”    United States v. Amer, 681 F.3d 211, 212 (5th Cir. 2012) (emphasis
added).     And, in the most recent pronouncement from the Supreme Court, the
Padilla holding was restated as follows: “We held that criminal defense
attorneys must inform non-citizen clients of the risks of deportation rising from


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                                       No. 13-50085

guilty pleas.”      Chaidez v. United States, 133 S. Ct. 1103, 1106 (2013)
(emphasis added).         Neither Chaidez nor Amer indicates that counsel is
obligated under the Sixth Amendment to explain that deportation is “certain”
to result from a guilty plea. 1
       The scope of the Padilla duty is an open question, which need not be
resolved in this appeal.        The sole question before us is whether the district
court erred in determining that Padilla was inapplicable in the Rule 11
context.    This can be answered without determining that Padilla required
Urias’s counsel to warn that deportation was “certain.”                 Because we vacate
and remand for further proceedings, namely consideration of Padilla in a new
Rule 11 decision, I would leave the interpretation and application of Padilla to
the district court in the first instance.




1 In United States v. Bonilla, the Ninth Circuit determined that a “criminal defendant who
faces almost certain deportation is entitled to know more than that it is possible that a guilty
plea could lead to removal; he is entitled to know that it is a virtual certainty.” 637 F.3d
980, 984 (9th Cir. 2011). However, Bonilla does not contemplate, much less resolve, the
internal tension in Padilla, discussed above. Accordingly, the case is not a particularly
persuasive precedent.

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