Case: 20-50481 Document: 00516044211 Page: 1 Date Filed: 10/06/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
October 6, 2021
No. 20-50481 Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Antonio Maurice Gardner,
Defendant—Appellant.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 6:18-CR-330-1
Before Higginbotham, Stewart, and Wilson, Circuit Judges.
Patrick E. Higginbotham, Circuit Judge:
Antonio Maurice Gardner entered a plea of guilty without filing a
motion to suppress the evidence against him. The district court, without an
evidentiary hearing, denied his motion to withdraw his plea. We hold that
Gardner alleged sufficient facts to require a hearing upon the motion to
withdraw, and if granted, his motion to suppress. We vacate and remand.
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I
In November 2018, Gardner was indicted on a single count of
possession with intent to distribute a mixture or substance containing a
detectable amount of methamphetamine.1 He retained counsel Jason Bailey
and pleaded guilty before a magistrate judge on March 12, 2019, without a
plea agreement.
Three months later, on June 12, 2019, the probation officer filed
Gardner’s initial presentence report (PSR), and the district court set
sentencing for July 18, 2019. On the day of sentencing, Bailey orally moved
for a continuance to file objections to the PSR, which the district court
granted.
Less than a week later, Gardner, pro se, moved to appoint new
counsel, saying that he felt misled by Bailey because Bailey previously told
him that objections to the PSR had been filed. As will become plain, it is
significant that Gardner then also asserted that Bailey gave him inconsistent
information as to the availability of audio or video footage of the search that
led to his arrest, leaving him unsure of “what to believe.” About a week later,
Bailey moved to withdraw, citing “[i]rreconcilable differences” between
himself and Gardner. On August 6, 2019, the court granted Bailey’s motion
to withdraw and appointed new counsel, Christopher Bullajian, in his place.
With Gardner’s sentencing set to occur just two days after his
appointment, Bullajian moved for a continuance, which the district court
granted, delaying sentencing until September 19, 2019. On September 9,
2019, Bullajian moved for a second continuance, explaining that two recent
felony trials had prevented him from effectively consulting with Gardner.
1
See 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C).
2
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The district court granted the continuance and set sentencing for October 31,
2019. On October 25, 2019, Bullajian moved again for a continuance, seeking
“additional time to review discovery to effectively represent [Gardner].”
The district court granted the motion and set sentencing for December 5,
2019. On November 22, 2019, Bullajian moved for a fourth continuance,
explaining that it had taken him “substantial” time to become familiar with
the facts of the case and that he now understood that Gardner “wishe[d] to
withdraw his guilty plea based o[n] his desire to file a motion to suppress that
his former attorney did not file.” Bullajian sought a continuance to explore
these issues and evaluate Gardner’s likelihood of success in pursuing a plea-
withdrawal motion. The district court granted the motion and set sentencing
for March 5, 2020.
On February 25, 2020, Gardner, through his new counsel Bullajian,
moved to withdraw his guilty plea. He alleged that his plea was not voluntarily
made due to the ineffectiveness of former counsel Bailey. In support of this
allegation, Gardner claimed that the controlled substances seized from his
house were the product of an improperly executed “knock and talk”; that he
told Bailey he wanted to file a suppression motion because it would end the
Government’s case against him, but Bailey told him “that a motion to
suppress would be filed after the entering of the plea.” In short, that he
wagered a plea of guilty “with the full understanding from his attorney that a
motion to suppress would be forthcoming.” Gardner explained that he
continued to ask Bailey about filing a motion to suppress, but when Bailey
finally told him that moving was no longer an option, he then moved to
appoint new counsel. Given these circumstances, Gardner argued that he had
demonstrated a “fair and just reason for withdrawing his plea.”
A defendant entering an unconditional plea, as Gardner did, waives
his rights to challenge his conviction, including any violations of the Fourth
3
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Amendment.2 However, the Federal Rules of Criminal Procedure provide
that a defendant may, with the court and government’s consent, instead
enter a conditional plea which “reserve[s] in writing the right to have an
appellate court review an adverse determination of a specified pretrial
motion. A defendant who prevails on appeal may then withdraw the plea.”3
The district court denied the motion to withdraw the plea the next
day, without a response from the Government and without an evidentiary
hearing, eventually sentencing Gardner to 240 months’ imprisonment and
six years’ supervised release. Gardner seeks remand to the district court for
an evidentiary hearing, arguing that the district court abused its discretion by
ruling on his motion to withdraw his plea without one, depriving him of the
opportunity to pursue his suppression motion.4
II
We review the district court’s decision not to hold an evidentiary
hearing for an abuse of discretion.5 A district court may abuse its discretion
2
Fed. R. Crim. P. 11(b)(1)(N).
3
Fed. R. Crim. P. 11(a)(2).
4
Gardner alternatively asks us to conclude that his plea was rendered involuntary
due to counsel’s ineffective assistance and to reverse the district court’s denial of his plea-
withdrawal motion. But “[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 is
sufficiently developed to allow us to evaluate the claim on its merits.” United States v.
Villegas-Rodriguez, 171 F.3d 224, 230 (5th Cir. 1999).
5
United States v. Powell, 354 F.3d 362, 370 (5th Cir. 2003).
4
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in declining to hold a hearing on a motion when a defendant “alleges
sufficient facts which, if proven, would justify relief.” 6
A defendant may withdraw a guilty plea after the court accepts the
plea, but before it imposes a sentence, if he “can show a fair and just reason
for requesting the withdrawal.”7 In determining whether a defendant has
shown a “fair and just” reason for withdrawal, the district court must
examine the totality of the circumstances, informed by the factors set forth
in United States v. Carr.8 These include: (1) whether the defendant asserted
actual innocence; (2) whether withdrawal of the plea would prejudice the
government; (3) the extent of the defendant’s delay, if any, in filing the
motion to withdraw; (4) whether withdrawal would substantially
inconvenience the court; (5) whether the defendant was benefitted by the
close assistance of counsel; (6) whether the guilty plea was knowing and
voluntary; and (7) the extent to which withdrawal would waste judicial
resources.9 The district court can, but is not required to, make specific
findings in denying a defendant’s plea-withdrawal motion.10
Although the record before us is limited, it appears that some of these
factors could be seen to weigh against Gardner. Yet the near eight-month
delay between the appointment of Gardner’s new counsel and his withdrawal
motion are the result of his new counsel, who was put to trial in other courts.11
6
Id. (internal quotation marks and citation omitted).
7
Fed. R. Crim. P. 11(d)(2).
8
740 F.2d 339, 343–44 (5th Cir. 1984).
9
Id.
10
Powell, 354 F.3d 362 at 371.
11
See United States v. Lord, 915 F.3d 1009, 1014 (5th Cir. 2019) (collecting cases
where “much shorter delays [than eight months] have been deemed unacceptable”).
5
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A defendant may offset his considerable delay by proffering “substantial
reasons” for withdrawal.12 Gardner argues that he has met this high bar by
alleging that his plea was involuntary due to ineffective assistance of counsel.
Because a guilty plea requires the waiver of constitutional rights, it
must be “voluntary, knowing, and intelligent.”13 “This requires that the
defendant understand the nature of the charges against him, the
consequences of his plea, and the nature of the constitutional protections that
he is waiving.”14 “Where, as here, a defendant is represented by counsel
during the plea process and enters his plea upon the advice of counsel, the
voluntariness of the plea depends on whether counsel’s advice was within the
range of competence demanded of attorneys in criminal cases.”15 We agree
that here where delay is at the hands of appointed counsel called to trial in
other cases, delays of a genre inherent in the dynamic of an active, well
moving docket, the delay ought not weigh heavily against the defendant. The
district court abuses its discretion when it fails to permit a defendant to
withdraw a plea rendered involuntary due to counsel’s ineffective
assistance.16
12
See Carr, 740 F.2d at 344 (“[T]he longer a defendant delays in filing a withdrawal
motion, the more substantial reasons he must proffer in support of his motion.”).
13
Lord, 915 F.3d at 1016 (citing Brady v. United States, 397 U.S. 742, 748 (1970)).
14
United States v. Strother, 977 F.3d 438, 445 (5th Cir. 2020) (citing United States
v. Urias-Marrufo, 744 F.3d 361, 366 (5th Cir. 2014)).
15
Hill v. Lockhart, 474 U.S. 52, 56 (1985) (internal quotation marks and citation
omitted); see also United States v. Rumery, 698 F.2d 764, 766 (5th Cir. 1983)
(“[W]here . . . counsel has induced his client to plead guilty based on patently erroneous
advice, we may find that the plea itself was involuntary and unknowing.”).
16
See Urias-Marrufo, 744 F.3d at 369 (concluding that a district court must permit
a defendant to withdraw his plea upon finding it was involuntary due to counsel’s
ineffective assistance under Padilla v. Kentucky, 559 U.S. 356 (2010)); United States v.
McDonald, 416 F. App’x 433, 436 (5th Cir. 2011) (unpublished) (per curiam) (“Courts
6
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Accordingly, we must consider whether Gardner sufficiently alleged
facts demonstrating that counsel rendered ineffective assistance, such that
he was entitled to an evidentiary hearing on his plea-withdrawal motion.17
Challenges to guilty pleas based on ineffective assistance of counsel must
satisfy Strickland v. Washington’s two-part test:18 (1) that “counsel’s
representation fell below an objective standard of reasonableness,” 19 and (2)
that “counsel’s constitutionally ineffective performance affected the
outcome of the plea process.”20
As to counsel’s performance, Gardner alleged in his plea-withdrawal
motion that his counsel advised him that he could file a suppression motion
after entering an unconditional guilty plea. It is well settled that an
unconditional guilty plea ordinarily waives the right to challenge all non-
jurisdictional defects in the trial court proceedings, including any objection
to searches and seizures that violate the Fourth Amendment.21 At the same
must always be diligent to ascertain whether a plea of guilty was understandingly made, and
when it appears before sentencing that such a plea was entered by a defendant
who . . . acted as a result of mistake, it is an abuse of discretion not to permit the plea to be
withdrawn.” (alteration in original) (quoting United States v. Pressley, 602 F.2d 709, 710–
11 (5th Cir. 1979))).
17
See Powell, 354 F.3d at 370.
18
Hill, 474 U.S. at 58 (citing Strickland v. Washington, 466 U.S. 668 (1984)).
19
Id. at 57 (internal quotation marks and citation omitted).
20
Id. at 59 (“In other words, in order to satisfy the ‘prejudice’ requirement, the
defendant must show that there is a reasonable probability that, but for counsel’s errors, he
would not have pleaded guilty and would have insisted on going to trial.”).
21
United States v. Cothran, 302 F.3d 279, 286 (5th Cir. 2002); see also Tollett v.
Henderson, 411 U.S. 258, 267 (1973) (concluding that when defendant enters an
unconditional guilty plea, “he may not thereafter raise independent claims relating to the
deprivation of constitutional rights that occurred prior to the entry of the guilty plea. He
may only attack the voluntary and intelligent character of the guilty plea by showing that
the advice he received from counsel was not within” professional standards).
7
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time, the Federal Rules of Criminal Procedure clearly lay out the method for
entering a conditional plea. Any contrary advice as to the effect of an
unconditional plea offered by Gardner’s counsel was not “within the range
of competence demanded of attorneys in criminal cases” as it did not account
for the potential of a conditional plea.22 Therefore, Gardner’s allegations
satisfy Strickland’s performance prong.
As for prejudice, Gardner argued that he would not have pleaded
guilty had he known that he was waiving his right to file a motion to suppress,
believing that his suppression motion would eviscerate the Government’s
case against him.23 While we cannot from our perch evaluate the merits of
this allegation, it satisfies Strickland’s prejudice prong, if true.24
Because Gardner’s motion alleged facts sufficient to justify relief
under Strickland and its progeny, the district court abused its discretion by
summarily denying his motion without a hearing.25 To the extent the
Government suggests that Gardner’s colloquy with the magistrate judge
22
See Hill, 474 U.S. at 57 (internal quotation marks and citation omitted);
McDonald, 416 F. App’x at 436 (unpublished) (per curiam) (concluding that defendant
satisfied Strickland’s performance prong by demonstrating that counsel advised him that
he would be able to challenge a non-jurisdictional defect following his unconditional plea);
see also Anaya v. Lumpkin, 976 F.3d 545, 552 (5th Cir. 2020) (recognizing that unreasonable
performance under Strickland often arises when counsel is “ignoran[t] of a point of law”
(quoting Hinton v. Alabama, 571 U.S. 263, 274 (2014))).
23
“It was based on [counsel’s erroneous] advice, that the Defendant decided to
enter his plea of guilty.”
24
See Hill, 474 U.S. at 59; United States v. Cavitt, 550 F.3d 430, 441 (5th Cir. 2008)
(determining that defendant’s allegations satisfied Strickland’s prejudice prong where he
claimed that he would not have pleaded guilty had he known he could file a viable
suppression motion); McDonald, 416 F. App’x at 436 (concluding that defendant satisfied
Strickland’s prejudice prong by demonstrating that he would have not pleaded guilty had
he been correctly informed of the consequences of an unconditional plea).
25
See Powell, 354 F.3d at 370.
8
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during the plea hearing ultimately evidences the voluntariness of his plea, we
disagree.26 It is the “critical obligation of counsel”—not the court—“to
advise the client of the advantages and disadvantages” of pleading guilty. 27
Regardless, nothing in that colloquy is in tension with Gardner’s
understanding that his counsel could thereafter move to suppress. 28
Counsel’s failure to meet this obligation “cannot be saved by a plea
colloquy.”29
We vacate the district court’s denial of Gardner’s plea-withdrawal
motion and remand for an evidentiary hearing before our able district judge.
26
Gardner indicated some initial confusion over what he was admitting to during
the plea colloquy:
Magistrate: Have you read this indictment?
Gardner: Yes, sir.
Magistrate: Do you agree that it’s a true and accurate summary of the
facts that the government would prove beyond a
reasonable doubt?
Gardner: Um.
Magistrate: With respect to the quantity of drugs, I assume you might
have a disagreement with respect to that; but other than
that, is that what you did, sir?
Gardner: Yes, sir.
27
Padilla v. Kentucky, 559 U.S. 356, 370 (2010) (internal quotation marks and
citation omitted).
28
See Fed. R. Crim. P. 11(b).
29
See. Urias-Marrufo, 744 F.3d at 369.
9