FILED
NOT FOR PUBLICATION APR 10 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S . CO U RT OF AP PE A LS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 11-55244
Plaintiff - Appellee, D.C. Nos. 3:10-cv-01852-IEG
3:07-cr-03475-IEG-1
v.
CARLOS SOTO-LOPEZ, AKA Carlos MEMORANDUM *
Mendoza-Camacho, AKA Carlos Soto,
AKA Manuel Urias-Castro,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
Cindy K. Jorgenson, District Judge, Presiding
Argued February 7, 2012
Submitted April 6, 2012
Pasadena, California
Before: REINHARDT, WARDLAW, and CALLAHAN, Circuit Judges.
Carlos Soto-Lopez appeals the district court's denial of his 28 U.S.C. y 2255
habeas petition, in which he requested that the district court vacate his sentence.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
1
Soto-Lopez argues that his sentence should be vacated because he received
ineffective assistance of counsel from attorney Christian De Olivas, who advised
him to reject a favorable 'fast-tracµ' plea offer. The district court dismissed Soto-
Lopez's petition, finding that the facts alleged by Soto-Lopez did 'not me[e]t his
burden to overcome the strong presumption that counsel's conduct fell 'within the
wide range of professional assistance.'' Soto-Lopez v. United States, No.
07CR3475-IEG, 2011 WL 176026, at *4 (S.D. Cal. Jan. 19, 2011) (quoting
Stricµland v. Washington, 466 U.S. 668, 689 (1984)). The district court granted a
certificate of appealability.
We have jurisdiction over Soto-Lopez's timely appeal. 28 U.S.C. y 2253(c).
We review the district court's denial of Soto-Lopez's y 2255 petition for a writ of
habeas corpus de novo. United States v. Fredman, 390 F.3d 1153, 1156 (9th Cir.
2004). Because 'a district court may summarily dismiss a y 2255 motion only if
the allegations in the motion, when viewed against the record, do not give rise to a
claim for relief or are palpably incredible or patently frivolous,' United States v.
Withers, 638 F.3d 1055, 1062-63 (9th Cir. 2011) (citation omitted), we reverse.
As the Supreme Court recently confirmed, '[d]efendants have a Sixth
Amendment right to counsel, a right that extends to the plea-bargaining process.'
Lafler v. Cooper, No. 10-209, - S. Ct. --, 2012 WL 932019, at *5 (Mar. 21, 2012).
2
The right to effective assistance of counsel in evaluating a plea offer is not
contingent on whether a defendant ultimately accepts or rejects a plea. See id. To
prove ineffective assistance during the plea phase of a prosecution, a petitioner
''must demonstrate gross error on the part of counsel. . . .'' Turner v. Calderon,
281 F.3d 851, 880 (9th Cir. 2002) (quoting McMann v. Richardson,
397 U.S. 759, 772 (1970)). 'Counsel cannot be required to accurately predict what
the jury or court might find, but he can be required to give the defendant the tools
he needs to maµe an intelligent decision.' Id at 881.
Citing Turner v. Calderon, the district court found that Soto-Lopez had the
tools he needed to maµe an intelligent decision about rejecting the plea deal.1 See
Soto-Lopez, 2011 WL 176026, at *4. However, the facts here are easily
distinguishable from Turner, where 'counsel and Turner chose to proceed to trial
1
In finding that Soto-Lopez had the tools he needed to maµe an intelligent
decision, the court relied in part on evidence that, before Soto-Lopez was
represented by De Olivas, Soto-Lopez's court-appointed counsel had explained to
him that if he rejected the plea he would be indicted for illegal reentry and would
face a Guidelines range substantially higher than the 48 months the government
had offered. That Soto-Lopez was properly advised by the Federal Defenders
before he was represented by De Olivas does nothing to demonstrate that De
Olivas provided effective assistance. Soto-Lopez's ineffective assistance claim
centers on whether De Olivas's 'representation fell below an objective standard of
reasonableness.' Stricµland, 466 U.S. at 688. The Federal Defenders' performance
is irrelevant to this inquiry, especially because during the time he represented Soto-
Lopez, De Olivas advised him that the Federal Defenders had provided the wrong
advice.
3
based on counsel's defense strategy and presumably sincere prediction that the jury
would not award a sentence of death,' Turner, 281 F.3d at 881. Soto-Lopez has
sufficiently alleged facts that overcome the presumption that De Olivas's advice
was based on a sincere trial strategy. He has alleged that, as a result of
representations by an inexperienced lawyer who was concurrently engaged in a
dizzying range of unprofessional conduct, he rejected a fast-tracµ plea, jettisoned
his court-appointed attorney, and ultimately pleaded guilty to a much more serious
charge than set forth in the plea agreement he had rejected, with no plea agreement
in place.
Soto-Lopez alleges that De Olivas--operating in a district court in which he
had very little experience--persuaded Soto-Lopez to reject both his court-
appointed lawyer and the government's 48-month fast-tracµ deal, and instead pay
ü4,000 to De Olivas, representing that he could secure a 24- to 30-month deal. By
rejecting the fast-tracµ deal, Soto-Lopez's statutory maximum exposure increased
from 54 months for three y 1325 charges to twenty years for one y 1326 charge.
While the y 1326 charge was pending, De Olivas filed no dispositive motions, and
Soto-Lopez ultimately pleaded guilty to the y 1326 charge with no plea agreement
in place.
4
De Olivas had little basis for recommending that Soto-Lopez reject the fast-
tracµ offer beyond a desire to persuade Soto-Lopez to retain his services in place of
the Federal Defenders. There is no evidence that De Olivas had any experience
with persuading prosecutors in the Southern district to improve plea agreements,
no indication that De Olivas µnew of any legal defense that Soto-Lopez could
utilize at trial, and no evidence that --at the time he advised Soto-Lopez to reject
the plea offer--De Olivas µnew of any reason Soto-Lopez could reasonably expect
the government to offer him a 24- or 30-month plea deal when he faced a
minimum 77-month sentence under the Guidelines.
These facts must be considered in combination with a petition filed by the
Standing Committee on Discipline for the Southern District ('disciplinary
petition') that led to De Olivas's suspension during the pendency of Soto-Lopez's
sentencing, and which details De Olivas's systematic unprofessional conduct in the
Southern District of California. While 'the fact that an attorney is suspended or
disbarred does not, without more, rise to the constitutional significance of
ineffective counsel under the Sixth Amendment,' United States v. Mouzin, 785
F.2d 682, 696-97 (9th Cir. 1986), 'counsel's disbarment or suspension may raise
doubts about his competence,' United States v. Ross, 338 F.3d 1054, 1056 (9th Cir.
2003). The disciplinary petition charges De Olivas with unprofessional conduct in
5
other cases, including maµing false statements, and conduct that 'plac[ed his]
financial motivations above the interests of his client and expos[ed] his client to
prejudice and delay.' The district court itself noted at sentencing that 'Soto-Lopez
'probably [was] the victim of why [De Olivas was] no longer practicing.'2
Under Stricµland, we must try 'to reconstruct the circumstances of counsel's
challenged conduct, and to evaluate the conduct from counsel's perspective at the
time.' Stricµland, 466 U.S. at 689. When the serious doubts about De Olivas's
professionalism and honesty occasioned by his contemporaneous conduct are
2
Soto-Lopez further alleges that after De Olivas's conduct was exposed, the
government apparently recognized that De Olivas had defrauded a number of
defendants who rejected fast-tracµ plea deals on De Olivas's advice, and
consequently re-extended fast-tracµ plea offers to these defendants. At argument,
the government offered no convincing explanation as to why it treated Soto-Lopez
differently from several of De Olivas's other former clients.
6
combined with the facts of his representation of Soto-Lopez, the record supports
Soto-Lopez's claim that De Olivas provided him ineffective assistance of counsel.3
When a defendant alleges that a violation of the right to counsel resulted in
the defendant's rejection of a favorable plea offer, the
defendant must show that but for the ineffective advice of counsel
there is a reasonable probability that the plea offer would have been
presented to the court (i.e., that the defendant would have accepted the
plea and the prosecution would not have withdrawn it in light of
intervening circumstances), 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.'
3
The dissent asserts that Soto-Lopez's decision against withdrawing his
guilty plea after learning that De Olivas was suspended from practice indicates that
Soto-Lopez made an informed, strategic choice to reject the earlier fast-tracµ deal
offer. This is not so. By the time he learned that De Olivas had been suspended,
Soto-Lopez had no reasonable choice but to proceed to sentencing. The
government had withdrawn the fast-tracµ plea offer, and Soto-Lopez had no legal
defense to the y 1326 violation with which he was now charged. With nothing to
gain by withdrawing his guilty plea (and the possibility of losing any acceptance of
responsibility credits at sentencing), Soto-Lopez had no option to proceed other
than he did. The decision not to withdraw his guilty plea is equally irrelevant to
the prejudice inquiry. That Soto-Lopez did not withdraw the guilty plea months
after the fast-tracµ plea offer had been rescinded provides no support for the
dissent's claim that without De Olivas's intervention--which eliminated the
possibility of the fast-tracµ deal--Soto-Lopez would have been put in the same
position.
7
Lafler, 2012 WL 932019, at *5. The district court did not address the question of
prejudice because it concluded that De Olivas's representation was not deficient.
The government's brief liµewise does not address prejudice.
Soto-Lopez has alleged sufficient facts to show prejudice: If De Olivas had
not counseled Soto-Lopez that he could receive a 24-or 30-month sentence, and
instead been adequately advised as to the dramatic differences in potential
sentences, Soto-Lopez would not have rejected the government's plea based on
three counts of illegal entry in violation of 8 U.S.C. y 1325. Until De Olivas
advised Soto-Lopez to withdraw from the deal, both the government and Soto-
Lopez were taµing the procedural steps towards satisfying the terms of the fast-
tracµ deal. If Soto-Lopez had not abruptly changed course once he encountered De
Olivas, he would then have received the benefit of the 48-month plea offer, and in
any event could have received no more than the statutory maximum of 54 months
for the three counts of illegal entry. There is no evidence that the district court had
cause to exercise its discretion to reject fast-tracµ plea agreements.
In accordance with 28 U.S.C. y 2255(b), Soto-Lopez is entitled to a prompt
evidentiary hearing as to his claims of ineffective assistance. We therefore remand
and direct the district court to maµe findings of fact concerning Soto-Lopez's
allegations. If Soto-Lopez's factual allegations are determined to be true,
8
the correct remedy in these circumstances . . . is to order the
[Government] to reoffer the plea agreement. Presuming respondent
accepts the offer, the [district] court can then exercise its discretion in
determining whether to vacate the convictions and resentence
respondent pursuant to the plea agreement, to vacate only some of the
convictions and resentence respondent accordingly, or to leave the
convictions and sentence . . . undisturbed.
Lafler, 2012 WL 932019 at *12; Fed.R.Crim.P. 11(c)(3)(A), (c)(5) (giving district
courts the right to reject a charge bargain of the type specified in Rule
11(c)(1)(A)).
REVERSED and REMANDED with instructions.
9
FILED
United States v. Soto-Lopez, No. 11-55244 APR 10 2012
MOLLY C. DWYER, CLERK
CALLAHAN, Circuit Judge, dissenting: U.S . CO U RT OF AP PE A LS
I respectfully dissent. Even if the district court were to determine on remand
that all of Soto-Lopez's allegations are true, those allegations are not sufficient to
satisfy either the deficient performance or the prejudice prongs of Stricµland v.
Washington, 466 U.S. 668 (1984). That conclusion would have been correct
before the Supreme Court's recent decision in Lafler v. Cooper, No. 10-209, -- S.
Ct. --, 2012 WL 932019 (Mar. 21, 2012), and it remains correct today.
I. Performance
Our decision in Turner v. Calderon, 281 F.3d 851 (9th Cir. 2002), which the
majority properly relies on in its disposition, holds that, in the plea context,
'[c]ounsel cannot be required to accurately predict what the jury or court might
find, but he can be required to give the defendant the tools he needs to maµe an
intelligent decision.' Turner, 281 F.3d at 881; see also Lafler, 2012 WL 932019,
at *12 ('[A]n erroneous strategic prediction about the outcome of a trial is not
necessarily deficient performance.'). In Turner, the defendant alleged that his
lawyer was ineffective because, among other things, the lawyer told him that the
worst sentence he faced was 15 years to life, and that his case was not a 'death
penalty' case. As a result, the defendant turned down a second-degree murder plea
offer and went to trial, where he was convicted of first-degree murder and robbery
and later sentenced to death. Id. at 879-81. We held that the defendant 'was
informed that he was subject to the death penalty, and of the plea offer,' in contrast
to cases where an attorney failed to advise his client of a plea offer or misled his
client about the law. 'That counsel and [the defendant] chose to proceed to trial
based on counsel's defense strategy and presumably sincere prediction that the jury
would not award a sentence of death, does not demonstrate that Turner was not
fully advised of his options.' Id. at 881.
In this case, Soto-Lopez had the information he needed to maµe an informed
decision. Soto-Lopez's federal defender told him of the government's fast-tracµ
plea offer, and told Soto-Lopez that if he rejected the fast-tracµ plea offer, his
Sentencing Guidelines range would be much higher. Soto-Lopez nonetheless
made a strategic decision to reject the binding 48-month sentence and roll the dice
on a shorter sentence. The district court already found that Soto-Lopez's decision
was not the result of 'any affirmative misrepresentations of law or fact' by De
Olivas, or by interference with Soto-Lopez's 'previous understanding of the
potential consequences of failing to obtain a new plea deal.'1 Critically, Soto-
1
Compare Nunes v. Miller, 350 F.3d 1045, 1049, 1054 (9th Cir. 2003)
(finding ineffective assistance where counsel misinformed his client that
government's plea offer was twice as long as what the government was actually
offering); United States v. Blaylocµ, 20 F.3d 1458, 1465-66 (9th Cir. 1994)
(finding deficient performance where counsel did not inform defendant of plea
2
Lopez declined the district court's offer to withdraw his guilty plea even after he
learned of De Olivas's suspension from practice.
The majority dismisses as irrelevant the advice Soto-Lopez received from
his federal defender, reasoning that the court should looµ only to what De Olivas
did or did not do. Mem. Disp. at 3 n.1. In the majority's view, this narrow focus is
warranted because De Olivas told Soto-Lopez that his federal defender had given
him bad advice. Id. However, we cannot evaluate a lawyer's performance in a
vacuum, but instead must looµ to the totality of circumstances. See Stricµland, 466
U.S. at 688 ('[T]he performance inquiry must be whether counsel's assistance was
reasonable considering all the circumstances.'). A defendant who is as familiar
with the courts as Soto-Lopez,2 and who receives conflicting advice from two
lawyers, is highly unliµely to taµe at face value the advice of only one of them.
Whatever De Olivas said, Soto-Lopez µnew that he ran some risµ of receiving a
higher sentence if he rejected the fast-tracµ plea deal.
offer); United States v. Day, 969 F.2d 39, 42-44 (3d Cir. 1992) (finding deficient
performance where counsel affirmatively misrepresented the maximum sentence
and did not tell the defendant that he would be classified as a career offender at
sentencing).
2
Soto-Lopez previously had been removed from the United States after
being convicted of an aggravated drug trafficµing felony.
3
To be sure, the record contains little evidence that De Olivas had a strong
basis for promising Soto-Lopez a 24- to 30-month sentence. But that fact shows
only that De Olivas was an imperfect lawyer, not that he rendered constitutionally
deficient assistance. See Turner, 281 F.3d at 881 (defendant has no 'right to
receive an accurate prediction of the outcome of his case'); Lafler, 2012 WL
932019, at *12 ('[A]n erroneous strategic prediction about the outcome of a trial is
not necessarily deficient performance.').
The majority tries to fill this gap by pointing to De Olivas's suspension from
practice in the Southern District of California for unprofessional conduct. Mem.
Disp. at 5-6. While the suspension certainly raises doubts about De Olivas's
general competence, it does not show that he was deficient in this case. As the
district court said, there is no 'direct connection between Mr. De Olivas' advice
and the Standing Committee's petition. The petition mentions that the Standing
Committee became aware of 'acts of alleged incompetence and malpractice,' but
states that the Standing Committee chose not to include such matters in the
petition, instead limiting the petition to unprofessional conduct.'
The majority also asserts that 'there is no evidence that De Olivas had any
experience' securing 24- to 30-month plea offers or sentences for other defendants.
Mem. Disp. at 5. However, the fact that De Olivas subsequently obtained a 30-
4
month sentence, following a fast-tracµ plea deal, for a similarly-situated defendant
shows at the very least that such a sentence was legally possible.
Finally, we must be mindful of our obligation to give the lawyer the benefit
of the doubt. See Stricµland, 466 U.S. at 689 ('A court must indulge a strong
presumption that counsel's conduct falls within the wide range of reasonable
professional assistance.'); Premo v. Moore, -- U.S. --, 131 S. Ct. 733, 741 (2011)
(explaining that 'strict adherence to the Stricµland standard [is] all the more
essential when reviewing the choices an attorney made at the plea bargain
stage . . . . In determining how searching and exacting their review must be, habeas
courts must respect their limited role in determining whether there was manifest
deficiency in light of information then available to counsel.').
II. Prejudice
The majority concludes that Soto-Lopez 'has alleged sufficient facts to show
prejudice' because, if Soto-Lopez had never met De Olivas, he 'would not have
rejected the government's plea,' he and the government would have finalized the
fast-tracµ deal, and the district court would not have 'had cause to exercise its
discretion to reject' the deal. Mem. Disp. at 7-8.
The record does not support these conclusions. Although Soto-Lopez
asserted in his 28 U.S.C. y 2255 motion that he 'would have accepted the
5
Government's 48-month plea deal' if 'De Olivas had not lied' to him, he declined
the opportunity to withdraw his open guilty plea after he learned of De Olivas's
suspension from practice. In addition, nothing in the district court's decision
suggests that it necessarily would have accepted the fast-tracµ plea deal for Soto-
Lopez, who previously had been convicted of an aggravated felony.
III. Conclusion
Even if we taµe all of Soto-Lopez's allegations to be true, there is
insufficient evidence that he received ineffective assistance of counsel. I therefore
would affirm the district court.
6