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United States v. Murillo

United States Court of Appeals, Fourth Circuit

June 24, 2019

UNITED STATES OF AMERICA, Plaintiff - Appellee,
v.
SERGIO CARRILLO MURILLO, Defendant-Appellant.

          Argued: March 20, 2019

          Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Anthony John Trenga, District Judge. (1:16-cr-00073-AJT-2)

         ARGUED:

          Stephen Walter Spurgin, SPURGIN LAW OFFICE, El Paso, Texas, for Appellant.

          Richard Daniel Cooke, OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia, for Appellee.

         ON BRIEF:

          G. Zachary Terwilliger, United States Attorney, Michelle P. Tonelli, Special Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee.

          Before MOTZ, KING, and THACKER, Circuit Judges.

          THACKER, Circuit Judge:

         On March 24, 2016, a grand jury indicted Sergio Carrillo Murillo ("Appellant") for conspiracy to distribute and possession with intent to distribute cocaine. Three months later, Appellant pled guilty to conspiracy to distribute cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 846.

         Following his arrest, and throughout the plea negotiation process, Appellant's purported primary concern was the impact a criminal conviction could have on his status as a lawful permanent resident of the United States. His attorney advised him that, if he pled guilty to the lesser included offense, deportation was a mere possibility that he could fight in immigration court. But Appellant's attorney was wrong: conspiracy to distribute cocaine is an "aggravated felony" under the Immigration and Nationality Act, see 8 U.S.C. § 1101(a)(43)(B), and a noncitizen convicted of such a crime is subject to mandatory deportation, see id. § 1227(a)(2)(A)(iii).

         On September 7, 2017, Appellant moved under 28 U.S.C. § 2255 to vacate his conviction on the ground that he received ineffective assistance of counsel in violation of the Sixth Amendment. The district court denied his motion, and Appellant appealed. For the reasons that follow, we reverse the decision of the district court and remand for further proceedings.

         I.

         In 1995, when Appellant was seven years old, he and his family moved from Mexico to the United States. Appellant has lived in the United States ever since. Today, Appellant is a lawful permanent resident. He no longer has family in Mexico, and he is engaged to be married to an American citizen. As such, "[s]taying in the United States with [his] family has always been [his] number one priority." J.A. 65. [1]

         Twenty-one years after he came to the United States, Appellant got into some legal trouble. On February 10, 2016, Appellant traveled with another man from New Mexico to Virginia to sell a kilogram of cocaine. Unknowingly, the pair sold the drugs to a confidential informant. The confidential informant recorded the transaction while law enforcement officers observed it. After the exchange, Appellant was arrested. On March 24, 2016, a grand jury indicted Appellant on two counts of cocaine-related offenses: (1) conspiracy to distribute in violation of 21 U.S.C. §§ 841(a) and 846; and (2) possession with intent to distribute in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2.

         Shortly after his arrest, Appellant retained attorney Katherine Martell ("Martell") to represent him. Given his circumstances, Appellant wanted an attorney with immigration law experience, and he had heard Martell touting her knowledge of immigration law on Spanish radio.[2]

         On Appellant's behalf, Martell negotiated a plea agreement with the Government. The Government offered to drop the possession with intent to distribute charge if Appellant would plead guilty to the conspiracy charge. That deal allowed Appellant to avoid a mandatory minimum sentence of five years. See 21 U.S.C. § 841(b)(1)(B)(ii). After discussing a draft of the plea agreement with Appellant, Martell noted in the margin of the draft, "Ask to omit immigration waivers." J.A. 109. Specifically, Martell sought to omit five immigration-related clauses from the draft:

• (1) "Consent Given for Removal from the United States" (which would have required Appellant not to contest removal proceedings brought against him);
• (2) "Waiver of Rights Related to Removal from the United States" (which would have required Appellant to waive his rights to apply for all forms of relief or protection from removal or deportation);
• (3) "Exception for Changed Circumstances Arising After Plea" (which would have allowed Appellant to apply for asylum, withholding of removal, or protection under Article 3 of the Convention Against Torture based only on circumstances arising after the entry of his plea);
• (4) "Abandonment of Pending Applications for Relief from Removal" (which would have required Appellant to abandon any existing immigration benefit he holds or any pending application for relief from removal or deportation); and
• (5) "The Defendant's Cooperation in the Defendant's Removal" (which would have required Appellant to agree to assist the Department of Homeland Security in any future removal proceedings). Id. at 108-10.

         Indeed, Martell successfully negotiated with the Government to omit from the final plea agreement those five clauses and one more: "Plea Agreement Binding for Purposes of Removal Proceedings" (requiring Appellant to acknowledge that his waiver of immigration-related rights is binding in any future removal proceedings). Compare id. at 108-110 (draft plea agreement), with Supp. J.A. Vol. I at 1-13 (final plea agreement).

         However, although it did not include an explicit waiver of rights related to removal from the United States, the final plea agreement did mention potential immigration consequences. Specifically, the plea agreement acknowledged that deportation was a possibility and provided that Appellant wanted to plead guilty regardless:

[Appellant] recognizes that pleading guilty may have consequences with respect to [Appellant's] immigration status if [Appellant] is not a citizen of the United States. Under federal law, a broad range of crimes are removable offenses, including the offenses to which [Appellant] is pleading guilty. Because removal and other immigration consequences are the subjects of a separate proceeding, [Appellant] understands that no one, including [Appellant's] attorney or the District Court, can predict to a certainty the effect of [Appellant's] conviction on [Appellant's] immigration status. [Appellant] nevertheless affirms that [Appellant] wants to plead guilty regardless of any immigration consequences that [Appellant's] plea may entail, even if the consequence is [Appellant's] automatic removal from the United States.

Supp. J.A. Vol. I at 10-11. Crucially, throughout her discussions with Appellant regarding the plea agreement, Martell assured Appellant that he would be able to fight deportation in immigration court.

         On June 21, 2016, Appellant pled guilty to the conspiracy charge. At Appellant's plea hearing, both Martell and the district court characterized the likelihood of deportation flowing from Appellant's plea as a possibility: First, after Martell informed the district court that Appellant was a lawful permanent resident, the district court asked, "Possibility of deportation then?" Martell responded, "Possibility." J.A. 16. Second, the district court informed Appellant that he "may be deported" as a result of his plea. Id. at 21 (emphasis supplied). Appellant then confirmed that he understood that he "may be deported" as a result of his plea. Id. (emphasis supplied). He also acknowledged that he reviewed and understood his plea agreement.

         After finding that Murillo was competent to enter his plea and that his plea was knowing, voluntary, and supported by facts, the district court accepted it. Appellant then pled guilty to an "aggravated felony" under the Immigration and Nationality Act. See 8 U.S.C. § 1101(a)(43)(B) (defining "aggravated felony" as "illicit trafficking in a controlled substance (as defined in section 802 of Title 21), including a drug trafficking crime (as defined in section 924(c) of Title 18)"). Any noncitizen -- including a lawful permanent resident -- who pleads guilty to an "aggravated felony" is subject to mandatory deportation. See id. § 1227(a)(2)(A)(iii) ("Any alien who is convicted of an aggravated felony at any time after admission is deportable."); see also Lee v. United States, 137 S.Ct. 1958, 1963 (2017) (noting that a lawful permanent resident who pled guilty to an "aggravated felony" was "subject to mandatory deportation").

         Thereafter, on September 8, 2016, the district court sentenced Appellant to 24 months in prison and three years of supervised release. Approximately six months later, while Appellant was incarcerated, he learned from an immigration officer that, upon completion of his sentence, he would be deported.

         On September 7, 2017, Appellant filed a motion under 28 U.S.C. § 2255 to vacate his conviction, asserting that his attorney had provided him constitutionally ineffective assistance of counsel. Appellant filed several affidavits in support of his motion. In his affidavit, Appellant stated that at no time did Martell inform him that he would be deported if he pled guilty. To the contrary, in her affidavit, Appellant's fiancée stated that when she asked Martell if Appellant's sentence of 24 months would affect his residency, Martell responded, "[N]o because [Appellant] had been a resident for over twenty years that would help him stay here." J.A. 68. Similarly, Appellant's fiancée's mother stated in her affidavit that Martell asserted, "because [Appellant] had already been here for over twenty years, he would not be deported." Id. at 70. ...


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