FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 09-10307
Plaintiff-Appellee, D.C. No.
v. 5:07-cr-00251-
JOSE HERNANDEZ BONILLA, Jr., RMW-1
Defendant-Appellant.
OPINION
Appeal from the United States District Court
for the Northern District of California
Ronald M. Whyte, Senior District Judge, Presiding
Argued and Submitted
October 8, 2010—San Francisco, California
Filed March 11, 2011
Before: Stephen Reinhardt and Marsha S. Berzon,
Circuit Judges, and Louis H. Pollak, Senior District Judge.*
Opinion by Judge Reinhardt
*The Honorable Louis H. Pollak, Senior United States District Judge
for the Eastern District of Pennsylvania, sitting by designation.
3419
3422 UNITED STATES v. BONILLA
COUNSEL
Amber Sax Rosen, Assistant U.S. Attorney, for the plain-
tiff-appellee.
Robert E. Carey, Jr., Palo Alto, California, for the defen-
dant-appellant.
OPINION
REINHARDT, Circuit Judge:
Jose Hernandez Bonilla, Jr. appeals the district court’s
denial of his pre-sentencing motion to withdraw his guilty
plea. Bonilla pled guilty to possession of an unregistered fire-
arm and to being a felon in possession of a firearm. He has
been a lawful permanent resident of the United States for over
thirty years; his wife and two children are all U.S. citizens.
When shortly after he had entered his plea Bonilla was for the
first time informed that he would be deported on the basis of
his plea, he moved to withdraw it, asserting that he would not
have pled had he known about the immigration consequences.
We hold that the district court’s denial of Bonilla’s motion to
withdraw his plea was an abuse of its discretion.
I. BACKGROUND
A. Factual Background
The defendant, Bonilla, was born in Mexico in 1973 and
was brought to the United States three years later. Thirty
years afterward, he was indicted when police in Watsonville,
California, responding to a gang altercation, observed a
sawed-off shotgun in the front seat of a nearby, unoccupied
car. The car belonged to Bonilla, who had previously been
convicted of a felony.1 His fingerprints were found on the
1
The only light that the record sheds on his earlier offense comes from
the affidavit of an officer who stated that “[o]n March 15, 2007, I ran a
UNITED STATES v. BONILLA 3423
gun, which was not registered to him. A federal grand jury
returned a two count indictment charging Bonilla with pos-
sessing an unregistered firearm under 18 U.S.C. § 922(g)(1),
and with being a felon in possession of a firearm under 26
U.S.C. § 5861(d).
After Bonilla’s indictment, his wife, who, due to his mental
health condition, sometimes speaks on his behalf, contacted
an investigator at the Federal Public Defender’s Office to ask
whether it was possible that Bonilla could be deported in con-
nection with his indictment. The investigator told Bonilla’s
wife only to contact his attorney. When she asked his lawyer
at an early court appearance whether it was possible that
Bonilla could be deported if he pled guilty, the attorney told
her that she would look into the matter but never did, and
failed to provide any information about immigration conse-
quences to Bonilla or his wife prior to the plea hearing. At the
Rule 11 colloquy, Bonilla admitted that he knew that he pos-
sessed the firearm and that it was not registered to him. He
did not ask any questions of the court, and entered a plea of
guilty as to both counts of the indictment without any plea
agreement.
After Bonilla entered the guilty pleas, his wife again asked
his lawyer about the immigration consequences of his plea.
This time, his lawyer said that she would provide an answer
after talking with an immigration specialist. Several days
later, she told Bonilla’s wife over the phone that as a result
of his guilty plea, Bonilla would be deported after serving his
sentence. Indeed, a conviction under either of the counts to
which he pled would have constituted an aggravated felony,
criminal history search on Jose Hernandez Bonilla and learned that on Jan-
uary 14, 1992, Bonilla was convicted in Santa Cruz County of California
Penal Code Section 23, Accessory. This conviction is a felony.” Nothing
in the record or in Section 23 indicates the nature of this offense. Bonilla
would have been 19 at the time.
3424 UNITED STATES v. BONILLA
rendering his deportation presumptively mandatory, see 8
U.S.C. § 1227(a)(2)(A)(iii), and conviction of an aggravated
felony precludes a non-citizen permanent resident like Bonilla
from seeking relief from deportation. See id. § 1229b(a)(3).
Bonilla’s lawyer explained that she had mistakenly believed,
at the time he pled, that he was a United States citizen.
Shortly thereafter, Bonilla’s lawyer declared a conflict of
interest in representing him in his ineffective assistance
appeal; new counsel was appointed that day.
Bonilla filed a motion to withdraw his plea six months
before sentencing was to take place. He contended that his
entry of the plea was not knowing or voluntary because he
had not understood that pleading guilty would in all likeli-
hood subject him to deportation. “I understood that no one
ever indicated that I would be deported, although no one had
answered my wife’s questions,” Bonilla declared in an affida-
vit in support of the motion. “At the time of the plea of guilty,
I believed that I would not be deported because of that plea.
. . . Had I known that I would be deported as a result of my
plea of guilty, I would never ha[ve] entered that plea to these
charges; instead, I would have either sought a different type
of plea (which would not result in my necessarily being
deported) or, alternatively, I would have gone to trial.”
B. Procedural Background
The district court denied Bonilla’s motion to withdraw his
plea. It relied on Ninth Circuit authority in effect at the time,
which held that attorneys were not required to advise clients
about immigration consequences of a plea because deporta-
tion was simply a “collateral consequence” of the plea. See
United States v. Amador-Leal, 276 F.3d 511, 514-15 (9th Cir.
2002). The court reasoned that because Bonilla had stated in
his declaration that he was aware that his wife had asked his
attorney whether pleading guilty might affect his immigration
status, and because he had not brought that issue to the court’s
UNITED STATES v. BONILLA 3425
attention during the plea colloquy, he “was at least aware of
the possibility of deportation.”
The district court noted that the issue whether the failure to
advise an immigrant defendant of the deportation conse-
quences of a possible plea constitutes ineffective assistance of
counsel was at that time pending before the Supreme Court in
Padilla v. Kentucky, 130 S. Ct. 1473 (2010). The court none-
theless concluded that Bonilla had not received ineffective
assistance because even if Padilla were retroactively to render
the performance of Bonilla’s counsel deficient for Sixth
Amendment purposes, see Griffith v. Kentucky, 479 U.S. 314,
328 (1987) (holding that “a new rule for the conduct of crimi-
nal prosecutions is to be applied retroactively to all cases,
state or federal, pending on direct review”), counsel’s failure
to advise Bonilla did not give rise to “a reasonable probability
that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Strickland v. Wash-
ington, 466 U.S. 668, 694 (1984). Specifically, the court
found that Bonilla’s willingness to enter a plea without having
received an answer to his wife’s question demonstrated that
he was not adversely affected by his counsel’s failure to
inform him about whether pleading guilty carried a risk of
deportation. Finding that the failure to receive proper advice
from his counsel about the immigration consequences of
pleading guilty did not prejudice his decision, the district
court denied Bonilla’s motion to withdraw his plea. Id.
The district court sentenced Bonilla to a period of twenty-
four months imprisonment on each count, with the sentences
to run concurrently. Bonilla appeals the district court’s denial
of his motion to withdraw his plea.
II. ANALYSIS
[1] We review for abuse of discretion the district court’s
denial of Bonilla’s motion to withdraw his plea in accordance
with the “fair and just reason” standard for withdrawal under
3426 UNITED STATES v. BONILLA
Federal Rule of Criminal Procedure 11(d)(2)(B). As we have
recently explained, the “ ‘fair and just’ standard is generous
and must be applied liberally.” United States v. McTiernan,
546 F.3d 1160, 1167 (9th Cir. 2008). A defendant who moves
to withdraw a guilty plea before a sentence is imposed is not
required to show that he would not have pled, but only that
the proper legal advice of which he was deprived “could have
at least plausibly motivated a reasonable person in [the defen-
dant’s] position not to have pled guilty . . . .” United States
v. Garcia, 401 F.3d 1008, 1011-12 (9th Cir. 2005). A pre-
sentence motion to withdraw a plea should be freely allowed
if a defendant can show a “fair and just reason” for requesting
the withdrawal. See United States v. Davis, 428 F.3d 802, 808
(9th Cir. 2005). “Erroneous or inadequate legal advice may
. . . constitute a fair and just reason for plea withdrawal.”
McTiernan, 546 F.3d at 1167. Here, the reason Bonilla gave
for withdrawal of the plea was “inadequate legal advice” con-
cerning the immigration consequences of his guilty plea.
[2] Addressing the responsibility of criminal defense coun-
sel to advise clients about immigration consequences, Padilla
held, first, that because of the “unique nature of deportation”
and “recent changes in our immigration law [that] have made
removal nearly an automatic result for a broad class of noncit-
izen offenders,” “advice regarding deportation is not categori-
cally removed from the ambit of the Sixth Amendment right
to counsel.” 130 S. Ct. at 1481-82. Next, Padilla defined the
scope of a criminal defense attorney’s duty to advise his non-
citizen client about the immigration consequences of a guilty
plea:
When the law is not succinct and straightforward
. . . , a criminal defense attorney need do no more
than advise a noncitizen client that pending criminal
charges may carry a risk of adverse immigration
consequences. But when the deportation conse-
quence is truly clear, as it was in this case, the duty
to give correct advice is equally clear.
UNITED STATES v. BONILLA 3427
Id. at 1483 (footnote omitted). Padilla then expressly rejected
the notion that Strickland guarantees apply only to the active
furnishing of erroneous advice about immigration conse-
quences of a plea. Instead, the Court extended the right to
counsel to protect against the passive omission of correct
advice about the possibility of deportation:
A holding limited to affirmative misadvice would
invite two absurd results. First, it would give counsel
an incentive to remain silent on matters of great
importance, even when answers are readily avail-
able. Silence under these circumstances would be
fundamentally at odds with the critical obligation of
counsel to advise the client of the advantages and
disadvantages of a plea agreement.” Libretti v.
United States, 516 U.S. 29, 50-51 (1995). When
attorneys know that their clients face possible exile
from this country and separation from their families,
they should not be encouraged to say nothing at
all.[ ] Second, it would deny a class of clients least
able to represent themselves the most rudimentary
advice on deportation even when it is readily avail-
able. It is quintessentially the duty of counsel to pro-
vide her client with available advice about an issue
like deportation and the failure to do so “clearly sat-
isfies the first prong of the Strickland analysis.”
Id. at 1484 (footnote and second citation omitted).
[3] The Government does not dispute that given Padilla,
Bonilla received “inadequate legal advice” about the immi-
gration consequences of his plea. McTiernan, 546 F.3d at
1167. Indeed, Bonilla received no advice about immigration
consequences before entering his plea, only learning after-
ward that pleading guilty would almost certainly result in
deportation. See 8 U.S.C. § 1227(a)(2)(A)(iii) (“Any alien
who is convicted of an aggravated felony at any time after
admission is deportable.”); id. § 1101(a)(43)(E)(ii) (making a
3428 UNITED STATES v. BONILLA
conviction under, inter alia, 18 U.S.C. § 922(g)(1) an aggra-
vated felony). It bears emphasizing that by entering a plea of
guilty without a plea agreement as to both counts of the
indictment, Bonilla did not stand to benefit from a plea agree-
ment in a way that might have made the plea an attractive
alternative to trial. To the contrary, unknown to Bonilla at the
time of his plea hearing, entering a plea would mean that after
he served his sentence, he would almost certainly be deported
and separated from his wife and children, all three U.S. resi-
dents and citizens. A criminal defendant who faces almost
certain deportation is entitled to know more than that it is pos-
sible that a guilty plea could lead to removal; he is entitled to
know that it is a virtual certainty. See Padilla, 130 S. Ct. at
1483. There can be little doubt that the district court abused
its discretion in concluding that, because Bonilla was willing
to enter a plea when he “was at least aware of the possibility
of deportation,” his counsel’s failure to advise him that he
would almost certainly be deported did not constitute a “fair
and just reason” for the withdrawal of his plea. McTiernan,
546 F.3d at 1167.
[4] Even if Bonilla was aware, when he pled, of the “possi-
bility” that he might incur some risk of deportation by enter-
ing a plea, this does not show that he would not have gone to
trial rather than plead guilty had he been properly advised that
a plea would make his deportation virtually certain. More-
over, it was reasonable for Bonilla to have inferred that he
likely would not be deported if he pled, from the fact that his
attorney did not prior to his entry of the plea tell his wife
about the immigration consequences, despite the fact that she
had requested that information. That Bonilla, through his
wife, contacted his lawyer and the investigator at the Federal
Public Defender’s Office to ask whether he could be subject
to deportation proceedings in connection with his plea demon-
strated that this was a matter of considerable importance to
him. Because a reasonable person in Bonilla’s position could
well have interpreted his lawyer’s silence to mean that plead-
ing guilty would not place him in jeopardy of deportation, it
UNITED STATES v. BONILLA 3429
is evident that counsel’s failure to advise Bonilla of the immi-
gration consequences “could have at least plausibly motivat-
ed” him to plead guilty rather than go to trial. Garcia, 401
F.3d at 1012.
Far less plausible is the district court’s assumption that
Bonilla declined to ask the court about immigration conse-
quences during his Rule 11 colloquy because he would have
pled regardless of possible deportation. Neither the fact that
Bonilla’s wife asked his lawyer whether pleading guilty might
have immigration consequences, nor the fact that Bonilla
failed at his plea colloquy to ask the judge for advice regard-
ing this possibility, is inconsistent with Bonilla’s having
believed that he would not be deported if he pled. Indeed,
when Bonilla finally learned that by pleading he would in all
likelihood be deported, he timely moved to withdraw his plea.
[5] The Government relies on our decision in United States
v. Mayweather, 623 F.3d 762 (9th Cir. 2010) to support its
contention that Bonilla’s awareness of the possibility that a
guilty plea might carry a risk of deportation is enough to show
that he does not have “fair and just reason” to withdraw his
plea. The Government’s reliance on Mayweather is mis-
placed. Mayweather holds, in relevant part, that defense coun-
sel’s failure to pursue a suppression motion was not fair and
just reason for the defendant to withdraw his guilty plea under
circumstances in which, “prior to pleading, the defendant was
aware of the prospect of making a suppression motion.” Id. at
769. We reasoned that because Mayweather had “supplied the
requisite pre-plea knowledge in his post-plea affidavit” that he
could have made a suppression motion, “nothing arguably
prevented [him] from raising the suppression issue before the
court prior to pleading.” Id. We found it significant that,
although Mayweather participated actively during the Rule 11
proceeding, when defense counsel “stated that his client was
not pleading guilty ‘because of any illegally obtained evi-
dence,’ Mayweather was conspicuously silent.” Id. We also
emphasized that Mayweather had neglected to “candidly con-
3430 UNITED STATES v. BONILLA
vey[ ] to the court what he knows,” and so was not entitled to
withdraw his plea under the fair and just reason standard. Id.
In addition to the fact that Bonilla did not lack candor in his
dealings with the court, his case differs in two other decisive
respects from Mayweather’s. First, there is no evidence that
Bonilla, like Mayweather, knew before his plea that the basis
on which he would later request withdrawal actually existed.
Specifically, Mayweather had pre-plea knowledge regarding
the validity of the ground on which he later sought to with-
draw his plea. Mayweather stated in his post-plea affidavit
that he had “made it very clear to [his lawyer] that [he]
wanted to litigate . . . a motion to suppress the January 14,
2008 search of [his] apartment.” Id.
[6] Although Bonilla may have known prior to his plea
about the possibility that there might be a reason not to plead
to the indictment, because of his lawyer’s failure to answer
his wife’s question he did not know whether that possibility
was likely to have any real consequences. He learned only
after he had pled that the plea would in fact make his deporta-
tion virtually certain. Unlike the court in Mayweather, we do
not find any evidence in this case that the defendant would
have still pled rather than have gone to trial had he received
the correct advice prior to his plea.
The second critical respect in which Bonilla’s case is dis-
tinguishable from Mayweather relates to the facts surrounding
each defendant’s failure, during his Rule 11 colloquy, to raise
with the court the ground on which he would later seek to
withdraw his plea. Mayweather failed to inform the court that
he had instructed his lawyer to make a suppression motion
even though during his plea hearing the subject of suppression
was explicitly addressed by his lawyer. Bonilla’s silence, by
contrast, came only in response to the court’s generalized
question, “Do you have any questions before I ask you how
you plead?” Neither Bonilla’s lawyer nor the judge at Bonil-
la’s plea hearing ever addressed the subject of deportation.
UNITED STATES v. BONILLA 3431
Indeed, Bonilla’s lawyer later admitted that at the time of the
plea hearing she had mistakenly thought that Bonilla was a
citizen, which accounted in part for her less than satisfactory
performance in failing to advise Bonilla as to the immigration
consequences of his plea.
[7] There can be no question that the immigration conse-
quences about which Bonilla learned after entering a plea
“could have at least plausibly motivated a reasonable person
in [the defendant’s] position not to [plead] guilty . . . .” Gar-
cia, 401 F.3d at 1011-12. As Bonilla stated in his declaration,
he would at the very least have attempted to negotiate a plea
to a lesser offense. In any event, if defense counsel’s failure
to provide material advice “plausibly could have motivated
his decision to plead guilty[,] [n]othing in Rule 11(d)(2)(B)
requires a defendant to show more in order to satisfy the ‘fair
and just reason’ standard.” Davis, 428 F.3d at 808. Bonilla
met this “fair and just reason” standard for pre-sentence with-
drawal of his plea by virtue of his counsel’s failure to provide
advice upon request, and would have done so even had no
such request been made. The district court’s failure to grant
Bonilla’s motion to withdraw his plea constituted a failure to
apply the rule generously and liberally and resulted in an
abuse of its discretion.
Conclusion
[8] Had Bonilla’s lawyer provided him with the advice that
his wife requested about possible immigration consequences
of his plea, such advice “could have at least plausibly moti-
vated a reasonable person in [the defendant’s] position not to
have pled guilty . . . .” Garcia, 401 F.3d at 1011-12. The dis-
trict court’s denial of his motion to withdraw his plea was
therefore unreasonable, and constituted an abuse of discretion
under the “fair and just reason” standard. See Davis, 428 F.3d
at 808. We VACATE the plea and conviction and REMAND
for further proceedings consistent with this decision.
VACATED and REMANDED.