United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 8, 2018 Decided July 3, 2018
No. 15-3027
UNITED STATES OF AMERICA,
APPELLEE
v.
CARLOS AGUIAR, ALSO KNOWN AS LOS,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 1:04-cr-00355-3)
Erica J. Hashimoto, appointed by the court, argued the
cause for appellant. On the briefs were Steven H. Goldblatt,
appointed by the court, Amit R. Vora, Supervisory Attorney,
and Caleb Redmond and Joseph Flanagan, Student Counsel.
Carlos Aguilar, pro se, filed the brief for appellant.
James A. Ewing, Assistant U.S. Attorney, argued the cause
for appellee. With him on the brief were Jessie K. Liu, U.S.
Attorney, and Elizabeth Trosman, T. Anthony Quinn, and
Nicholas P. Coleman, Assistant U.S. Attorneys. Suzanne G.
Curt, Assistant U.S. Attorney, entered an appearance.
2
Before: ROGERS, GRIFFITH, and SRINIVASAN, Circuit
Judges.
Opinion for the Court filed by Circuit Judge ROGERS.
Opinion, dissenting in part, filed by Circuit Judge
GRIFFITH.
ROGERS, Circuit Judge: This is an appeal from the denial
of a collateral attack pursuant to 28 U.S.C. § 2255 on a
conviction by a jury of crimes relating to a series of armed bank
robberies. Carlos Aguiar contends the district court erred in
denying the motion because his trial and appellate counsel
failed to object to the closure of voir dire, in violation of his
Sixth Amendment right to a public trial, and because trial
counsel failed to explain the sentencing consequences under 18
U.S.C. § 924(c) of rejecting the government’s plea offer and
going to trial, in violation of his Sixth Amendment right to the
effective assistance of counsel. The first contention fails in
light of Weaver v. Massachusetts, 137 S. Ct. 1899 (2017),
because Aguiar has not shown prejudicial error from the voir
dire closure. The second contention regarding the plea offer
requires a remand because “the motion and the files and records
of the case” do not “conclusively show” Aguiar is “entitled to
no relief.” 28 U.S.C. § 2255(b).
I.
In superseding indictments, Aguiar and five co-defendants
were charged with RICO and armed bank robbery conspiracies,
two armed bank robberies, three counts of unlawful possession
of a firearm by a convicted felon, and two counts of possession
or use of a fully automatic assault weapon in connection with a
crime of violence in violation of 18 U.S.C. § 924(c)(1)(B)(ii).
Earlier Aguiar had rejected the government’s offer of a plea to
3
three counts: RICO conspiracy, felon in possession of a
firearm, and § 924(c)(1)(B)(ii), with a likely total sentence of
between 47 and 51 years, including a mandatory 30 years on
the § 924(c) count. A jury found Aguiar guilty of all charges
except possession or use of fully automatic assault weapons,
instead finding him guilty of possession or use of semi-
automatic weapons in violation of §§ 924(c)(1)(B)(i) & (C)(i).
He was sentenced to an aggregate term of 60 years’
imprisonment, including mandatory consecutive terms of 10
and 25 years’ imprisonment for the § 924(c) convictions, and
ordered to pay restitution of $361,000. On direct appeal, this
court affirmed the judgment of conviction. See United States
v. Burwell, et al., 642 F.3d 1062 (D.C. Cir. 2011), aff’d, 690
F.3d 500 (D.C. Cir. 2012).
Thereafter, on September 12, 2012, Aguiar, pro se, filed a
motion pursuant to 28 U.S.C. § 2255(a) to vacate the judgment
of conviction on the grounds of ineffective assistance of trial
counsel. He argued that counsel failed to investigate and object
to the exclusion of Aguiar’s family members from voir dire, in
violation of his Sixth Amendment public-trial right, and failed
to explain to him the sentencing consequences for the two
§ 924(c) counts of rejecting the plea offer and going to trial, in
violation of his Sixth Amendment right to effective assistance
of counsel. Under the two-part test of Strickland v.
Washington, 466 U.S. 668, 687 (1984), Aguiar had to show
counsel’s performance was deficient “under prevailing
professional norms,” id. at 688, and that the deficient
performance was prejudicial, creating a “reasonable
probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different,” id. at 694.
The district court denied Aguiar’s motion without an
evidentiary hearing because he had not proffered factual
allegations to require a hearing and “the files and records of the
case” showed he was entitled to no relief. United States v.
4
Aguiar, 82 F. Supp. 3d 70, 74, 76 (D.D.C. Feb. 12, 2015); 28
U.S.C. § 2255(b). As the court resolved in United States v.
Abney, 812 F.3d 1079, 1086–87 (D.C. Cir. 2016), our review
of the denial of a § 2255 motion on the ground of ineffective
assistance of counsel is de novo. See United States v.
Stubblefield, 820 F.3d 445, 448 (D.C. Cir. 2016) (citing
Abney). The district court’s denial of an evidentiary hearing is
reviewed for abuse of discretion. See United States v.
Morrison, 98 F.3d 619, 625–26 (D.C. Cir. 1996).1
II.
The protections afforded by the Sixth Amendment to the
Constitution that “the accused shall enjoy the right to a . . .
public trial” extend to voir dire. Presley v. Georgia, 558 U.S.
209, 213 (2010). Voir dire is “presumptively . . . a public
process with exceptions only for good cause shown.” Press-
Enterprise Co. v. Sup. Ct. of Cal., 464 U.S. 501, 505 (1984).
Consequently, “the party seeking to close the hearing must
advance an overriding interest that is likely to be prejudiced,
the closure must be no broader than necessary to protect that
interest, the trial court must consider reasonable alternatives to
closing the proceeding, and it must make findings adequate to
support the closure.” Waller v. Georgia, 467 U.S. 39, 48
1
Upon Aguiar’s motion for a certificate of appealability
(“COA”), see 28 U.S.C. § 2253(c), a special panel initially granted
the motion only on Aguiar’s voir dire closure challenge. Responding
to his motion for partial reconsideration, the panel referred all of his
challenges to the merits panel. The government, which objected in
the district court that Aguiar’s reconsideration motion was untimely,
has abandoned that position on appeal. Appellee’s Br. 40. The court
has no occasion to address whether, as Aguiar maintains, a merits
panel has inherent authority to expand a COA issued by a special
panel.
5
(1984); see CNN v. United States, 824 F.2d 1046, 1048 (D.C.
Cir. 1987).
It is undisputed that the courtroom where voir dire was
conducted for the trial of Aguiar and his co-defendants was
closed, that defense counsel did not object, and that the district
court did not conduct the Waller test. According to affidavits
of Aguiar’s mother and sister, when they attempted to observe
voir dire on the first day of trial, a court security officer
“informed [them] that [they] could not enter the courtroom
because the jury selection had started, and that nobody was
being allowed to enter until the jury selection was finished.”
Affid. of Lily Aguiar, at 1 (Sept. 12, 2012); see Affid. of
Mariana Aguiar, at 1 (Sept. 12, 2012). The district court
concluded that the alleged closure was “so trivial that it did not
violate the Sixth Amendment,” Aguiar, 82 F. Supp. 3d at 84–
85 (citing United States v. Perry, 479 F.3d 885, 890 (D.C. Cir.
2007)), and confirmed it had “never ordered that the courtroom
be closed” and “that Aguiar’s mother and sister were not
permitted into the courtroom by a security officer who was not
acting under the authority of the [district] [c]ourt,” id. at 84.
When, as here, a defendant first objects to a voir dire
closure in a collateral attack on his conviction, the Supreme
Court instructed in Weaver v. Massachusetts, 137 S. Ct. 1899,
1907 (2017), that, notwithstanding a structural error, see id. at
1908, “not every public-trial violation will in fact lead to a
fundamentally unfair trial” or “always deprive[] the defendant
of a reasonable probability of a different outcome,” id. at 1911.
[W]hen a defendant raises a public-trial violation via
an ineffective-assistance-of-counsel claim, Strickland
prejudice is not shown automatically. Instead, the
burden is on the defendant to show either a reasonable
probability of a different outcome in his or her case
6
or, as the Court has assumed for these purposes, to
show that the particular public-trial violation was so
serious as to render his or her trial fundamentally
unfair.
Id. (internal citation omitted). The Court rejected Weaver’s
challenge to the closure of voir dire because he had “offered no
evidence or legal argument” that but for counsel’s error there
was a reasonable probability of a different outcome, or that his
trial was rendered fundamentally unfair. Id. at 1912–13.
In circumstances strikingly similar to Aguiar’s, Weaver’s
mother and her minister were excluded from the courtroom for
two days during voir dire. Id. at 1913. “The closure was
limited to the jury voir dire; the courtroom remained open
during the evidentiary phase of the trial; the closure decision
apparently was made by court officers rather than the judge;
there were many members of the venire who did not become
jurors but who did observe the proceedings; and there was a
record made of the proceedings that does not indicate any basis
for concern, other than the closure itself.” Id. Weaver made
“no suggestion that any juror lied during voir dire; no
suggestion of misbehavior by the prosecutor, judge, or any
other party; and no suggestion that any of the participants failed
to approach their duties with the neutrality and serious purpose
that our system demands.” Id.
Assuming Aguiar’s counsel’s failure to object to the
closure of voir dire constituted deficient performance under
Strickland’s first prong, Weaver is dispositive of Strickland’s
second prong. Aguiar proffered no evidence that had the
district court conducted voir dire in open court, there was a
reasonable probability the result of the proceeding would have
been different, or that the voir dire proceedings were
fundamentally unfair. He, like Weaver, suggests no
7
misconduct by any party. The closed proceedings were held
on the record, in the presence of all parties and their counsel,
and Aguiar points to nothing in the closed proceedings that
would remove his challenge from the reach of Weaver. The
evidentiary and sentencing phases of the trial were held in open
court, as were peremptory strikes and the district court’s final
rulings on pretrial motions. Aguiar’s suggestion that during
certain gaps in the closed voir dire proceedings the district
court impermissibly discussed ongoing logistical, procedural,
and evidentiary issues with the parties overlooks the record
showing that the district court used these breaks to reference
issues for final resolution later in open court. As in Weaver,
then, Aguiar “does not indicate any basis for concern, other
than the closure itself.” Id. Accordingly, the district court
properly found that he failed to show the requisite prejudice
under Strickland.
III.
The Sixth Amendment right to the effective assistance of
counsel extends to the “critical stage” of plea bargaining.
Lafler v. Cooper, 566 U.S. 156, 162–63, 165 (2012).
Constitutionally adequate representation requires counsel to
adhere to “prevailing professional norms” and thereby “play[]
a role that is critical to the ability of the adversarial system to
produce just results.” Strickland, 466 U.S. at 685, 688. The
Supreme Court concluded “the proper standard for attorney
performance is that of reasonably effective assistance,” id. at
687, with the consequence that counsel’s representation is
constitutionally deficient if it falls “below an objective standard
of reasonableness,” Hill v. Lockhart, 474 U.S. 52, 57 (1985);
Strickland, 466 U.S. at 687–88. Reasonably effective
assistance requires that counsel be more than a mere bystander
and avoid making “errors so serious that counsel was not
8
functioning as the ‘counsel’ guaranteed the defendant by the
Sixth Amendment.” Strickland, 466 U.S. at 687.
The duty to provide reasonably effective representation at
sentencing presumes knowledge of statutory penalties and
familiarity with the U.S. Sentencing Guidelines. See Abney,
812 F.3d at 1089; United States v. Gaviria, 116 F.3d 1498,
1512 (D.C. Cir. 1997). Representation is deficient when
counsel fails to protect his client’s interests in accord with the
prevailing norms for criminal defense counsel or offers a
“‘plainly incorrect’ estimate of the likely sentence due to
ignorance of applicable law of which he ‘should have been
aware.’” United States v. Booze, 293 F.3d 516, 518 (D.C. Cir.
2002) (quoting Gaviria, 116 F.3d at 1512). The former
situation is illustrated in Abney, 812 F.3d at 1092, where
counsel’s failure to seek a continuance of sentencing so his
client could benefit from a likely imminent favorable
amendment to the Sentencing Guidelines, as other defense
counsel had done, meant Abney was unable to benefit from a
five-year reduction in a mandatory minimum that would have
been available. The latter situation is illustrated in Booze, 293
F.3d at 518–19, where counsel’s erroneous advice about a
likely sentence upon conviction at trial resulted in the
defendant rejecting a plea offer involving a sentence two-thirds
lower than the sentence that was imposed after trial. Similarly,
in Gaviria, 116 F.3d at 1512, counsel’s advice, contrary to the
court’s precedent, that his client would be sentenced as a career
offender, and thereby face thirty years to life imprisonment,
resulted in Gaviria’s rejection of a plea offer with a likely
sentence of fifteen to twenty-two years’ imprisonment.
The Supreme Court has clarified that counsel’s
representational duty extends to advising the defendant about
the consequences of pleading guilty beyond the criminal
conviction itself. In Padilla v. Kentucky, 559 U.S. 356, 366
(2010), the Court concluded that even though removal is a civil
9
proceeding, “advice regarding deportation is not categorically
removed from the ambit of the Sixth Amendment right to
counsel.” Because the law has “enmeshed criminal convictions
and the penalty of deportation,” id. at 365–66, and because
“deportation is a particularly severe penalty,” id. at 365
(internal quotation marks and citation omitted), the Court held
counsel’s failure to advise the defendant that pleading guilty
would make him eligible for deportation was contrary to
reasonable professional norms under Strickland’s first prong,
id. at 368–69. Counsel must advise defendants of “clear” and
“easily determined” immigration-related collateral
consequences of entering a guilty plea. Id. Because “there is
no relevant difference between an act of commission and an act
of omission in this context,” id. at 370 (internal quotation
marks and citation omitted), the Court rejected the
government’s view that Strickland should be limited to
situations where the defendant has received “affirmative
misadvice” on matters in the criminal case, id. at 369–70.
Aguiar contends he was denied the effective assistance of
counsel when trial counsel failed to explain to him that, upon
rejecting the plea offer and going to trial, the government’s
superseding indictment would include more than one § 924(c)
count and increase his mandatory minimum sentencing
exposure, even to as much as life imprisonment. He maintains
his “counsel needed only elementary reasoning to know what
would happen if Aguiar rejected the plea offer.” Appellant’s
Br. 49. In an affidavit attached to his § 2255 motion, Aguiar
states:
My attorney . . . informed me verbally that the
government had offered me a thirty (30) year
[mandatory minimum] plea to resolve my case. He
failed to inform me and explain to me the
consequences of the consecutive sentences exposure[]
10
I was actually facing, if I was convicted at trial. He
failed to advise me regarding the d[e]sirability of
accepting the plea offered, rather than to proceed to
trial. Had I been aware[] that I was actually facing a
total of 35-years for the two (2) § 924(c) counts
consecutively with an additional 30-years for the
remaining counts, I would ha[ve] accepted the 30-year
plea offer and pleaded guilty in a timely manner
instead of proceeding to trial.
The district court rejected Aguiar’s argument without
holding an evidentiary hearing, reasoning that Aguiar’s
“counsel’s performance did not fall below an objective
standard of reasonableness under prevailing professional
norms by failing to explain to him the sentencing implications
of violations to which he was not charged at the time that the
plea offer was extended and expired without acceptance.”
Aguiar, 82 F. Supp. 3d at 80.
Even assuming the absence of pending charges would
distinguish Aguiar’s circumstances from those of the
defendants in Abney, Booze, and Gaviria, the question after
Padilla is whether there were “clear” and “easily determined”
severe sentencing consequences of Aguiar’s rejection of the
plea offer. Padilla, 559 U.S. at 368–69. The indictment
pending at the time of the plea offer repeatedly described
Aguiar’s involvement in four armed bank robberies: it stated
three times that Aguiar acted “while armed with firearms,”
once that he “equi[pped] [himself] with handguns, pistols,
[and] assault weapons,” three times that he was “armed with
assault weapons and pistols,” three times that he “demand[ed]
money at gunpoint,” and once that he “hid . . . weapons.”
Indictment at 2–8 (Aug. 5, 2004). The references to possession
and use of a firearm during commission of a violent crime
would alert competent counsel that the government had
11
grounds to seek Aguiar’s indictment on multiple counts of
violating § 924(c). Doing so would be consistent with
prosecutorial policy on firearms offenses in the United States
Attorneys’ Manual.2 But even if the indictment alone did not
alert counsel, the plea offer did. Counsel did not have to be
clairvoyant. The plea offer included a § 924(c) count and
stated that the government would “not file additional § 924(c)
violations” if Aguiar accepted the plea offer. Plea Offer at 2
(Sept. 17, 2004) (emphasis added).
In Padilla, the Supreme Court, in reaffirming that
“negotiation of a plea bargain is a critical phase of litigation for
2
Section 112 of the United States Attorneys’ Manual, Criminal
Resource Manual (1997), states in relevant part:
Charges under 18 U.S.C. § 924(c) can be filed whenever a
firearm is used or carried during the course of a violent or
drug trafficking crime. The mandatory consecutive and
enhanced punishment under this section, which can
significantly increase a sentence especially where firearms
are used in numerous criminal acts of the gang, make this
statute one of the most potent tools in prosecuting gang
activity, especially those engaged in multiple criminal acts.
. . . Firearms violations should be aggressively used in
prosecuting violent crime. They are generally simple and
quick to prove. The mandatory and enhanced punishments
for many firearms violations can be used as leverage to
gain plea bargaining and cooperation from offenders.
Available at www.justice.gov/usam/criminal-resource-manual-112-
firearms-charges. Similarly, just months prior to Aguiar’s arrest and
indictment, the Attorney General “strongly encourag[ed]” the use of
“statutory enhancements” like § 924(c). Hon. John Ashcroft, U.S.
Dep’t of Justice, Memorandum from Attorney General Setting Forth
Charging & Plea Policies, 16 F. Sentencing Rep. 129, 131 (Sept. 22,
2003).
12
purposes of the Sixth Amendment right to effective assistance
of counsel,” concluded that counsel’s Sixth Amendment duty
to provide reasonable assistance to his client extends beyond
the pending charges in an indictment. 559 U.S. at 373.
Although at the time the plea offer was pending Aguiar had yet
to be indicted for violating § 924(c), it would have been “clear”
and “easily determined” by competent counsel that upon
rejection of the plea offer the government would seek a
superseding indictment charging Aguiar with more than one
§ 924(c) count and that upon his conviction on both counts the
“severe” sentencing consequences, id. at 365, extended to
mandatory life imprisonment under § 924(c)(i)(C)(ii). Even if
Aguiar were to be convicted only of possession or use of semi-
automatic weapons, his mandatory sentence would increase to
35 years’ imprisonment under §§ 924(c)(1)(B)(i), (C)(i).
Reasonably effective assistance under Strickland’s first prong
required counsel to advise Aguiar of these sentencing
consequences of rejecting the plea offer. A failure to do so is
legally indistinguishable from affirmatively misinforming the
defendant as a result of ignorance of relevant law. See id. at
370.
Whether Aguiar can also show prejudice under
Strickland’s second prong depends on whether there is a
reasonable probability that the “outcome of the plea process
would have been different with competent advice.” Lafler, 566
U.S. at 163. That is, “but for the ineffective advice of counsel
there is a reasonable probability that . . . the defendant would
have accepted the plea and the prosecution would not have
withdrawn it . . . , that the court would have accepted its terms,
and that the conviction or sentence, or both, under the offer’s
terms would have been less severe than under the judgment and
sentence that in fact were imposed.” Id. at 164.
13
Aguiar points to the fact that the “loss of the plea
opportunity led to a trial resulting in a conviction on more
serious charges [and] the imposition of a more severe
sentence,” namely, 60 years’ imprisonment (including 35
years’ mandatory minimum imprisonment on the § 924(c)
counts). Appellant’s Br. 51 (quoting Lafler, 566 U.S. at 168).
Had he accepted the plea offer, Aguiar faced a mandatory
minimum sentence of 30 years for one count of possession or
use of a fully automatic assault weapon during a crime of
violence under § 924(c)(1)(B)(ii). By rejecting the plea offer
and going to trial on two counts of § 924(c), upon conviction
he faced either mandatory life for possession or use of a fully
automatic assault weapon, or a 35-year mandatory minimum
(five years greater than under the plea offer) for possession or
use of a semi-automatic assault weapon. Had he known that by
going to trial he risked these “severe” mandatory sentencing
consequences, Lafler, 566 U.S. at 166, he maintains there is a
“reasonable probability” he would have accepted the plea offer,
id. at 164.
The government responds that Aguiar cannot show either
deficiency or prejudice under Strickland because he was
informed of the risk of additional § 924(c) charges prior to
rejecting the plea offer. The record evidence on which the
government relies is less illuminating than the government
suggests. At a September 2004 status hearing on the last day
the plea offer was available, the prosecutor stated that the
government would “likely . . . supersede with a RICO
indictment,” which “will also add other incidents, including
two incidents of assault.” Status Hg. Tr. at 11 (Sept. 27, 2004).
At no point did the prosecutor mention the possibility and
sentencing implications of multiple § 924(c) convictions.
Rather, the prosecutor only stated that the government would
add “other incidents” to the four already-charged bank
robberies.
14
At a January 2005 status hearing, after Aguiar had rejected
the plea offer and a superseding indictment had been filed
charging him with two violations of § 924(c), neither the
prosecutor nor the district court mentioned that upon
conviction Aguiar would face mandatory life imprisonment for
possession or use of a fully automatic assault weapon, or five
additional years of mandatory imprisonment upon conviction
of possession or use of a semi-automatic assault weapon. The
district court commendably sought to “to discuss the pleas and
put them on the record” in order to ensure no defendant, if
convicted at trial, would claim in a later § 2255 motion “that
they did not get a full discussion of the plea.” Status Hg. Tr. at
15 (Jan. 31, 2005). But when Aguiar and his counsel were
invited to step forward, no mention was made of mandatory
minimum sentences of life imprisonment or an additional five
years. The prosecutor stated that Aguiar “is charged with
having personally participated in four of the bank robberies,”
that a plea offer was made to one count of § 924(c), id. at 33,
and that Aguiar’s likely Guidelines sentence under the plea was
between about 35 and 37 years (including the 30-year
mandatory minimum for the one § 924(c) violation), with the
possibility of 30 years to life imprisonment if he were found to
be a career offender, id. at 34. Aguiar’s counsel stated without
elaboration that he had discussed with Aguiar career offender
status, the difference between a RICO conspiracy and the drug
conspiracy, and what § 924(c) involves. Id. at 35. Aguiar
confirmed that he had this discussion with counsel but he too
did not elaborate. Id. When the district court inquired what
would happen at trial, the prosecutor stated, referring to a
sentencing analysis:
The differences mainly . . . would be three levels for
acceptance of responsibility and . . . whether or not
there are one or more than one conviction under
15
§ 924(c). But frankly, Your Honor, adding, all it
really does to the calculation is add back in the three
additional level[s] that he otherwise would get for
acceptance of responsibility, and so his new range
would be 457 to 481 months [38 to 40 years].
Id. at 35–36. The record on appeal does not include the
prosecutor’s sentencing analysis nor otherwise indicate it was
made part of the record of this status hearing. Absent
elaboration of the advice counsel gave Aguiar about § 924(c),
this colloquy does not show that he was specifically advised of
the mandatory minimum, consecutive, sentencing
consequences of rejecting the plea offer, including life
imprisonment upon conviction of two § 924(c) counts.
What Aguiar needed to know before he decided whether
or not to accept the plea offer was the worst-case scenario if he
rejected the plea and went to trial. Although this “court must
indulge a strong presumption that counsel’s conduct falls
within the wide range of reasonable professional assistance,”
Strickland, 466 U.S. at 689, “[t]he record is quite sketchy
regarding plea discussions,” United States v. Winstead, 890
F.3d 1082, 1088 (D.C. Cir. 2018). “[T]he motion and the files
and records of the case” do not “conclusively show” Aguiar
was advised that a consequence of rejecting the plea offer was
mandatory life imprisonment or at least a longer mandatory
minimum sentence. 28 U.S.C. § 2255(b). Consequently, the
district court erred in denying his ineffective assistance of
counsel claim without holding an evidentiary hearing given the
inconclusiveness of the record and the failure to apply the legal
standard announced in Padilla, 559 U.S. at 365, 368–69.
Therefore, we remand for an evidentiary hearing on this part of
Aguiar’s Sixth Amendment challenge. 28 U.S.C. § 2255(b);
cf. Winstead, 890 F.3d at 1088 (citing United States v. Rashad,
331 F.3d 908, 910 (D.C. Cir. 2003)). Aguiar will have the
16
opportunity to proffer any “contemporaneous evidence” about
“how he would have pleaded but for his attorney’s [alleged]
deficiencies,” as did the defendant in Lee v. United States, 137
S. Ct. 1958, 1967 (2017).
Our colleague’s partial dissent is twice flawed. First, our
colleague ignores that the district court’s reason for denying an
evidentiary hearing was erroneous as a matter of law, in view
of the inconclusive state of the record and the standard
announced in Padilla, 559 U.S. at 365, 368–69, and that such
error was necessarily an abuse of discretion. See, e.g., Koon v.
United States, 518 U.S. 81, 100 (1996) (citing Cooter & Gell
v. Hartmarx Corp., 496 U.S. 384, 405 (1990)); Kickapoo Tribe
v. Babbitt, 43 F.3d 1491, 1497 (D.C. Cir. 1995). Second, our
colleague would affirm the district court and hold that Aguiar
has not established Strickland prejudice for lack of
contemporaneous evidence. See Lee, 137 S. Ct. at 1967. This
misreads Lee. In Lee, the Supreme Court addressed the
contemporaneous evidence that had been produced at the
evidentiary hearing on Lee’s § 2255 claim of ineffective
assistance of counsel, id. at 1967–68; such a hearing has yet to
be held on Aguiar’s § 2255 motion. The question now is
whether Aguiar has made sufficient allegations to warrant an
evidentiary hearing to prove his claim, not whether he has
satisfied his ultimate burden of proof. See 28 U.S.C. § 2255(b).
Our colleague would evidently conclude that Aguiar could not
show prejudice even if his counsel never advised of the
§ 924(c) sentencing risk and it were clear Aguiar would have
accepted the plea had that advice been given because Aguiar
did not contemporaneously state he would have accepted the
plea. Nothing in Lee supports this approach. The gravamen of
Aguiar’s claim is that because of counsel’s deficiency, he had
no reason to suspect he needed to make such a statement, and
thus did not know the full consequence of his decision to reject
the plea. The Supreme Court did not suggest in Lee that a
17
defendant must hypothesize his counsel’s advice might be
erroneous and state contemporaneously that his plea decision
would differ if that were so.
Accordingly, we affirm the denial of Aguiar’s Sixth
Amendment challenge on the ground of voir dire closure, and
we reverse and remand the plea bargaining challenge.
GRIFFITH, Circuit Judge, dissenting in part: I cannot join
Part III of the majority opinion. Even assuming that Aguiar’s
counsel performed deficiently when explaining the plea offer,
Aguiar failed to present sufficient evidence of prejudice. The
only evidence Aguiar advanced to make this showing was an
affidavit he executed years after his conviction. The Supreme
Court has held that such post hoc assertions, without more, are
insufficient to show prejudice. I see no abuse of discretion in
the district court’s decision to forgo an evidentiary hearing, and
I would affirm its judgment in full.
* * *
Aguiar petitioned for relief under 28 U.S.C. § 2255. In this
context, we review for abuse of discretion the district court’s
decision to deny an evidentiary hearing. See United States v.
Morrison, 98 F.3d 619, 625 (D.C. Cir. 1996) (collecting cases).
The district court’s decision not to hold a hearing should be
“generally respected as a sound exercise of discretion,”
especially where, as here, “the judge deciding the section 2255
motion also presided at petitioner’s trial.” United States v.
Gooch, 842 F.3d 1274, 1280 n.3 (D.C. Cir. 2016). Our cases
have repeatedly stressed that this standard is highly deferential.
See, e.g., United States v. Baxter, 761 F.3d 17, 25 n.5 (D.C. Cir.
2014); United States v. Toms, 396 F.3d 427, 437 (D.C. Cir.
2005); United States v. Pollard, 959 F.2d 1011, 1030-31 (D.C.
Cir. 1992). Indeed, one is hard-pressed to identify a single case
over the past several decades in which we have found such an
abuse of discretion.
Although the majority acknowledges that we review for
abuse of discretion, Maj. Op. at 4, it does not seem to apply that
standard. Instead, the majority reverses the district court and
remands the case because the record is “quite sketchy regarding
plea discussions.” See id. at 15. This standard is drawn from
cases in which defendants brought ineffective-assistance
claims on direct appeal, not on collateral review under § 2255.
2
See id. (relying on United States v. Winstead, No. 12-3036, slip
op. at 13 (D.C. Cir. May 25, 2018), and United States v.
Rashad, 331 F.3d 908, 912 (D.C. Cir. 2003)). These cases do
not provide the correct standard for determining whether to
remand Aguiar’s claim. When a defendant raises an
ineffective-assistance claim on direct appeal, our “normal
practice” is to remand when we “cannot definitely reject” the
claim. Winstead, slip op. at 13 (citing Rashad, 331 F.3d at 912).
We follow that practice because the district court is the forum
best suited to pass on such claims in the first instance. See
United States v. Eshetu, 863 F.3d 946, 957 (D.C. Cir. 2017).
Here, however, the majority concludes in the § 2255 context
that the district court abused its discretion by failing to hold an
evidentiary hearing. I see no basis for that conclusion.
To succeed on his ineffective-assistance claim, Aguiar
must satisfy both of Strickland’s prongs: he must show that his
lawyer’s performance was deficient and that this deficiency
prejudiced his defense. See Strickland v. Washington, 466 U.S.
668, 687, 697 (1984). Here, the majority did not need to
address the performance prong because, even assuming a
deficient performance, the record contains virtually no
evidence of prejudice.
To establish prejudice, Aguiar “must show that there is a
reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.”
Id. at 694. The probability of a different result must be
“substantial, not just conceivable.” Harrington v. Richter, 562
U.S. 86, 112 (2011). This showing is almost as demanding as
a “more-probably-than-not standard.” Id. at 111-12. In the
plea-offer context, Aguiar must show a “reasonable
probability” that he would have accepted the plea offer if his
attorney had performed adequately. See, e.g., Lafler v. Cooper,
566 U.S. 156, 164 (2012). Specifically, he must present
3
evidence that he would have accepted the plea offer if his
lawyer had correctly explained the sentencing exposure he
could face if the government sought a new indictment charging
him with additional firearm crimes. Aguiar failed to present
any evidence that could make this showing. 1
Aguiar’s only evidence that he would have accepted the
plea offer is his affidavit, which he executed approximately six
years after his conviction. There he said: “Had I been aware[]
that I was actually facing a total of 35-years for the two (2)
§ 924(c) counts, consecutively with an additional 30-years for
the remaining counts, I would ha[ve] accepted the 30-year plea
offer and pleaded guilty in a timely manner instead of
proceeding to trial.” See Maj. Op. at 10. The Supreme Court
has told us that these assertions, without more, are insufficient
to show prejudice.
In Lee v. United States, 137 S. Ct. 1958 (2017), the Court
set out a clear rule for assessing prejudice in this plea-offer
context. We must look for contemporaneous evidence of
whether the defendant would have accepted his plea offer; the
defendant’s assertions after conviction are not enough: “Courts
should not upset a plea solely because of post hoc assertions
from a defendant about how he would have pleaded but for his
attorney’s deficiencies. Judges should instead look to
1
Aguiar must also “demonstrate a reasonable probability the
plea would have been entered without the prosecution canceling it or
the trial court refusing to accept it.” Missouri v. Frye, 566 U.S. 134,
147 (2012). The Supreme Court has emphasized that this “showing
is of particular importance because a defendant has no right to be
offered a plea, nor a federal right that the judge accept it.” Id. at 148-
49 (internal citations omitted). Aguiar did not even attempt to make
this showing, and the majority pays this shortcoming no mind. This
failure alone justifies affirming the district court.
4
contemporaneous evidence to substantiate a defendant’s
expressed preferences.” Id. at 1967. 2
The record contains no contemporaneous evidence that
Aguiar ever considered accepting his plea offer. In fact, it
suggests just the opposite. At the January 2005 status hearing,
the district court repeatedly emphasized that the hearing was
intended to ensure that the defendants had understood their plea
offers and would not later claim in a § 2255 challenge that they
“did not get a full discussion of the plea.” J.A. 157. By that
time, Aguiar had already been charged under a superseding
indictment with the additional firearm crime—the charge at the
center of Aguiar’s § 2255 claim. See J.A. 76-109. Thus, Aguiar
already knew at the status hearing that he would face more
charges at trial than he would have under the plea offer. Yet
even with this information, Aguiar never once hinted during
the hearing that he had considered accepting the plea offer. Nor
did he express any surprise or concern about the additional
firearm charge in the superseding indictment.
At the hearing, Aguiar’s counsel confirmed to the district
court that he and Aguiar had discussed the plea offer, Aguiar’s
career offender status, and what § 924(c) involves. J.A. 176-
77. Counsel also suggested to the court that Aguiar’s rejection
2
The majority suggests that Lee is inapplicable because the
defendant in that case had received an evidentiary hearing but Aguiar
has not. See Maj. Op. at 16. That reading is unpersuasive. Lee never
purported to limit its applicability to petitioners who have already
received an evidentiary hearing. To the contrary, Lee set out a general
instruction about the kind of evidence courts should consider when
assessing prejudice in the plea-offer context, i.e., contemporaneous
evidence. Thus, even though the amount of evidence Aguiar needs
to secure an evidentiary hearing is less than Lee needed to prevail on
the merits, Aguiar’s claim still fails because he has not presented any
evidence of the kind that can show prejudice under Lee.
5
of the plea offer had been unwavering: “He rejected it then and
he’s rejecting it now.” J.A. 176. After addressing counsel, the
court turned to Aguiar and asked, “Is this the discussion, Mr.
Aguiar, that you had with your attorney about the plea offer
. . . ?” J.A. 177. Aguiar said yes. Id.
In the absence of any contemporaneous evidence, Aguiar
offers only a post hoc assertion that he would have accepted his
plea offer. See Aguiar Br. 52. But that assertion is not enough
under Lee. 3 The majority seems to shift the burden onto the
government to show that Aguiar was “specifically advised”
that his sentencing exposure could increase if he opted for trial.
See Maj. Op. at 15. But that is not where the burden lies. To
establish prejudice, Aguiar must show a “reasonable
probability” that he would have accepted the plea offer, and he
has not come close to satisfying that standard.
Of course, it is always possible that a district court may
find additional evidence on remand. But we review for abuse
of discretion, not the mere possibility of finding additional
evidence. I would affirm the district court’s decision to forgo
an evidentiary hearing as a sound exercise of its discretion.
I respectfully dissent.
3
Aguiar’s affidavit is unhelpful for yet another reason. It is a
particularly poor indicator of whether Aguiar would have accepted
the plea offer because it misstates his sentencing exposure under the
offer. In his affidavit, Aguiar says he “would ha[ve] accepted the 30-
year plea offer” if his lawyer had properly advised him. Maj. Op. at
10. But Aguiar’s actual sentencing exposure was not 30 years; he
was facing “a likely total sentence of between 47 and 51 years.” Id.
at 2-3. Given this significant discrepancy, Aguiar’s affidavit is even
less probative of whether he would have accepted the plea offer. In
other words, not even in his post hoc assertion does Aguiar claim he
would have accepted his true likely sentence instead of going to trial.