United States v. Rodriguez

49 F.4th 1205

UNITED STATES of America, Plaintiff-Appellee,

v.Cosme RODRIGUEZ, Defendant-Appellant.

No. 21-15117

United States Court of Appeals, Ninth Circuit.

Argued and Submitted August 31, 2022 San Francisco, California

Filed September 23, 2022

Michael B. Bigelow (argued), Carmichael, California, for Defendant-Appellant.

Jason Hitt (argued), Assistant United States Attorney; Camil A. Skipper, Appellate Chief; Phillip A. Talbert, United States Attorney; United States Attorney's Office, Sacramento, California; for Plaintiff-Appellee.

Before: Sidney R. Thomas, Ronald M. Gould, and Carlos T. Bea, Circuit Judges.

Opinion by Judge Bea ;

Partial Concurrence and Partial Dissent by Judge S.R. Thomas

BEA, Circuit Judge:

Cosme Rodriguez, a Mexican citizen and United States legal permanent resident, was arrested while attempting to sell five pounds of methamphetamine to a confidential informant. He was charged with possession of methamphetamine with intent to distribute and conspiracy to distribute methamphetamine—both offenses for which Rodriguez could be removed from the United States were he convicted. Rodriguez pleaded guilty to the conspiracy count. The Government then dismissed the possession with intent to distribute count.

Rodriguez later moved to vacate his conviction under 28 U.S.C. § 2255, raising three claims of ineffective assistance of counsel. The district court denied Rodriguez's first and second claims on their merits and denied Rodriguez's third claim on the ground that Rodriguez, through his plea agreement, had waived his right to bring the claim in a post-conviction proceeding.

For the reasons stated below, the record does not conclusively establish that Rodriguez is entitled to no relief on his first claim. It was an abuse of discretion to deny the first claim without an evidentiary hearing. We therefore reverse the district court's judgment on the first claim and remand for the district court to determine through an evidentiary hearing (1) whether Rodriguez's attorney provided deficient performance by telling Rodriguez that prevention of removal was "do-able," and (2) whether, in the absence of this statement, Rodriguez would have proceeded to trial or received a better plea deal. We affirm the district court's judgment on the second and third claims.

I. BACKGROUND

In 2011, the United States Drug Enforcement Administration used a confidential source (hereafter "source") to infiltrate a drug trafficking ring in Northern California. The confidential source met with Rodriguez (and Rodriguez's co-defendant, Maria Hernandez) in person in late January 2011. At the meeting, Rodriguez and Hernandez agreed to sell methamphetamine to the source.

About two weeks later, and after some additional negotiations between the source and Hernandez, Rodriguez called and spoke with the source, and eventually drove with Hernandez to the source's house. Rodriguez showed the source a small bag of methamphetamine, and then showed the source several larger packages of methamphetamine in the trunk of the car that he and Hernandez were driving. The source alerted nearby police and Rodriguez and Hernandez were then arrested. The police found five one-pound packages of methamphetamine in the car.

After receiving his Miranda warnings, Rodriguez admitted that he was delivering methamphetamine to "that guy" (referring to the source) and that he was supposed to be paid for doing so.

A grand jury charged Rodriguez with (1) conspiracy to distribute and possess with intent to distribute methamphetamine and (2) possession with intent to distribute methamphetamine under 21 U.S.C. §§ 846, 841(a)(1). The conspiracy charge had a statutory mandatory minimum of 10 years and a maximum term of life. With representation by counsel, Rodriguez pleaded guilty to the conspiracy charge under the terms of a written plea agreement. Included in that plea agreement was a waiver of the right to appeal and collaterally attack his sentence, reading in relevant part:

Regardless of the sentence he receives, the defendant also gives up any right he may have to bring a post-appeal attack on his conviction or his sentence. He specifically agrees not to file a motion under 28 U.S.C. § 2255 or § 2241 attacking his conviction or sentence.

The plea agreement also contained the following language under the caption "Impact of Plea on Defendant's Immigration Status":

Defendant recognizes that pleading guilty may have consequences with respect to his immigration status if he is not a citizen of the United States. Under federal law, a broad range of crimes are removable offenses, including the offense to which the defendant is pleading guilty. (Indeed, by pleading guilty to Count 1, removal is presumptively mandatory.) Removal and other immigration consequences are the subject of a separate proceeding, however, and defendant understands that no one, including his attorney or the district court, can predict to a certainty the effect of his conviction on his immigration status. Defendant nevertheless affirms that he wants to plead guilty regardless of any immigration consequences that his plea may entail, even if the consequences is [sic.] his automatic removal from the United States.

At Rodriguez's plea hearing, he had a thorough colloquy with the district judge, in which Rodriguez said that he was pleading guilty voluntarily and knowingly, even after the judge stated that removal was "a possible consequence." The district court accepted Rodriguez's guilty plea, adjudicated him guilty, and sentenced him to twelve months and one day in prison followed by sixty months of supervised release. This was a significant, but permissible, departure from the statutory minimum of ten years imprisonment and was based on Rodriguez's good behavior on pretrial electronic monitoring, his strong role in his family and community, and his criminal history.

After his sentencing, Rodriguez filed a motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. In his motion, Rodriguez makes three claims of ineffective assistance of counsel: Rodriguez claims that his attorney (1) incorrectly told Rodriguez that avoiding removal (from the United States to Mexico) was "difficult" but "do-able" when in fact removal was virtually certain, (2) "wrongly urged [Rodriguez] not to withdraw his guilty plea and withheld advice that would have counseled in favor of a motion to withdraw prior to sentencing," and (3) "provided ineffective assistance in failing to investigate, pursue or advise him about the possibility of [pleading guilty to] a non-felony charge." The government moved to dismiss the motion, arguing that Rodriguez had waived any right collaterally to attack his sentence by signing a plea agreement that contained a collateral-attack waiver.¹ The government did not dispute Rodriguez's motion on its merits.

The district court found that Rodriguez's first and second claims challenged the validity of his plea agreement and thus were not waived through the plea agreement but found that Rodriguez had waived his third claim because that claim did not "implicate the validity of the plea agreement." The district court then rejected Rodriguez's two unwaived claims on the merits, but without an evidentiary hearing.

The district court granted a certificate of appealability as to the merits of Rodriguez's first claim and as to whether Rodriguez's third claim was waived.² Rodriguez timely appealed.

II. STANDARD OF REVIEW

This court reviews de novo "the scope and validity" of waivers of the right to appeal or collaterally to attack a sentence. Davies v. Benov , 856 F.3d 1243, 1246 (9th Cir. 2017). "A district court's decision to deny an evidentiary hearing on a § 2255 motion is reviewed for abuse of discretion." United States v. Chacon-Palomares , 208 F.3d 1157, 1158–59 (9th Cir. 2000). In this context, the district court abuses its discretion "when it fails to apply the correct legal standard or bases its decision on unreasonable findings of fact." Nachshin v. AOL, LLC , 663 F.3d 1034, 1038 (9th Cir. 2011). A district court's decision to deny a motion under 28 U.S.C. § 2255 is reviewed de novo. See United States v. Navarro , 160 F.3d 1254, 1255 (9th Cir. 1998).

III. WAIVER

As a general rule, a defendant may waive his right to appeal and/or collaterally to attack his plea or sentence.³ Such a waiver is enforced "if ‘(1) the language of the waiver encompasses [the defendant's] right to appeal on the grounds raised, and (2) the waiver is knowingly and voluntarily made.’ " Davies , 856 F.3d at 1246 (quoting United States v. Jeronimo , 398 F.3d 1149, 1153 (9th Cir. 2005) ).

A claim that challenges whether the waiver was knowing and voluntary is not waived. Washington v. Lampert , 422 F.3d 864, 871 (9th Cir. 2005). And because "waivers of appeal must stand or fall with the agreement of which they are a part," United States v. Lo , 839 F.3d 777, 784 (9th Cir. 2016) (quoting United States v. Portillo-Cano , 192 F.3d 1246, 1250 (9th Cir. 1999) ), we assess the knowing and voluntary nature of an appeal/collateral-attack waiver by assessing the knowing and voluntary nature of the plea agreement as a whole.

A plea agreement is made knowingly if the defendant understands the terms and, to a certain extent,⁴ the consequences of the agreement. See Lo , 839 F.3d at 783–85. A plea agreement is made voluntarily if the defendant is not "induced by promises or threats" to enter the agreement. Doe v. Woodford , 508 F.3d 563, 570 (9th Cir. 2007) (quoting Iaea v. Sunn , 800 F.2d 861, 866 (9th Cir. 1986) ).

Rodriguez's first claim is that his attorney misinformed him of the likely immigration consequences of his plea. This claim attacks whether Rodriguez had knowledge of the effect of his guilty plea and is therefore not waived by Rodriguez's collateral-attack waiver. See Lampert , 422 F.3d at 868.

Rodriguez's second claim is that after he accepted his guilty plea, his attorney rendered ineffective assistance by dissuading Rodriguez...