Case: 21-30608 Document: 00516586006 Page: 1 Date Filed: 12/21/2022
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
December 21, 2022
No. 21-30608 Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
David Tran, (78),
Defendant—Appellant.
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:17-CR-217
Before Graves, Willett, and Engelhardt, Circuit Judges.
Per Curiam:*
David Tran appeals the district court’s denial of his motion to
withdraw his guilty plea without an evidentiary hearing. Because we find that
the district court abused its discretion, we VACATE and REMAND for an
evidentiary hearing.
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
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Facts and Procedural History
David Tran1 was charged by superseding indictment with four counts
pertaining to a drug conspiracy. Tran’s first two attorneys were allowed to
withdraw, and Robert C. Jenkins was then appointed as his counsel. 2 Trial
was set for February 10, 2020.
On February 3, 2020, Tran wrote a letter to the court seeking a
continuance because Jenkins allegedly had only met with him once for less
than ten minutes and was not prepared for trial. Tran also indicated that he
had difficulty translating between English and Vietnamese. The district
court ultimately denied the motion. On February 10, 2020, following jury
selection, Tran pleaded guilty to all four counts without the benefit of a plea
agreement and sentencing was scheduled.
Tran and Jenkins both signed the factual basis outlining the
circumstances of the offenses. The district court also conducted a colloquy
with Tran before accepting his plea. There was no discussion of any
suppression motion, or the waiver thereof, and the difference between
conditional and unconditional pleas.
On September 21, 2020, Tran, pro se, sought to remove Jenkins as
counsel. Tran asserted that Jenkins refused to visit, consult with him, answer
calls or texts, or provide requested information. Tran also asserted that
Jenkins had “committed grievous errors” prior to his plea and that he
planned to pursue collateral claims based on counsel’s deficient
1
The pleadings refer to the appellant as “David Tran (78)” based on his year of
birth and the fact that a codefendant, who is not relevant here, has the same name.
2
Gary Schwabe and Stephen H. Shapiro were the first two lawyers.
2
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performance. Thus, Tran said counsel had a conflict of interest. Tran’s
motion for replacement counsel was denied.
On October 6, 2020, Jenkins moved for a continuance of sentencing,
indicating that he needed more time to review the Presentence Investigation
Report (PSR) with Tran and that COVID had interfered with his ability to
meet with Tran. The district court granted the continuance. Sentencing was
rescheduled for January 13, 2021.
On November 27, 2020, Tran filed a second letter motion to dismiss
Jenkins for cause, citing irreconcilable differences. Tran also sent letters
dated October 6 and 28, 2020, which were filed December 3, 2020, advising
the district court that he continued to have communication and
representation issues with Jenkins. The district court referred Tran’s
request to dismiss Jenkins to the magistrate judge for hearing and
determination. Jenkins filed a motion to withdraw on January 7, 2021. The
district court then continued sentencing to March 3, 2021.
Following a hearing on the motion to withdraw and motion to dismiss
counsel on January 15, 2021, the district court granted the motion to
withdraw and ordered the Federal Public Defender to appoint new counsel,
which was Annalisa Mirón. Mirón subsequently filed an unopposed motion
and memorandum for continuance of sentencing. Mirón said that she needed
additional time to meet with Tran, conduct necessary investigation, and
prepare for sentencing in light of the pandemic. The district court granted
the motion and continued the matter until April 21, 2021. Counsel filed a
second motion for continuance on April 12, 2021, that was also granted.
Counsel filed a third motion for continuance on June 15, 2021. In that
motion, counsel set out Tran’s lack of understanding that, upon pleading
guilty, he waived the right to challenge the admissibility of any evidence
obtained via wiretap. Counsel also indicated that she was investigating the
3
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merits of a motion to withdraw Tran’s plea as not knowing and voluntary and
needed more time. The district court granted the motion and continued
sentencing.
On July 21, 2021, Tran filed a “Motion for Withdrawal of Guilty Plea”
pursuant to Rule 11(d)(2)(a) of the Federal Rules of Criminal Procedure.
Tran asserted that he did not know or did not understand that pleading guilty
foreclosed the possibility of further challenges to the wiretap evidence. In his
supporting memorandum, Tran advised the court that Jenkins was later
suspended from the practice of law in Louisiana for one year and one day due
to the deficient representations of other clients. A hearing on the motion was
scheduled for August 11, 2021, but later canceled. The government filed a
memorandum in opposition to the motion. The district court denied the
motion on the briefs by Order and Reasons filed September 10, 2021. Tran
was sentenced on September 29, 2021, to 140 months imprisonment as to
each count and five years of supervised release as to each count, all to be
served concurrently. He then timely filed this appeal. 3
Standard of Review
Rule 11 allows a defendant such as Tran to withdraw his guilty plea
before sentencing if he can “show a fair and just reason for requesting the
withdrawal.” Fed. R. Crim. P. 11(d)(2)(B); see also Kercheval v. United States,
274 U.S. 220, 224 (1927) (“the court in exercise of its discretion will permit
one accused to substitute a plea of not guilty and have a trial if for any reason
the granting of the privilege seems fair and just.”). This court reviews a
district court’s denial of a motion to withdraw a guilty plea for an abuse of
discretion. See United States v. Powell, 354 F.3d 362, 370 (5th Cir. 2003); see
3
On October 21, 2021, Mirón filed an ex parte motion to withdraw and substitute
CJA attorney John Guenard. That motion was granted on October 25.
4
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also United States v. Lampazianie, 251 F.3d 519, 523 (5th Cir. 2001). The
district court abuses its discretion in denying a motion to withdraw based on
an error of law or a clearly erroneous assessment of the evidence. See United
States v. McKnight, 570 F.3d 641, 648-49 (5th Cir. 2009); see also United States
v. Mann, 161 F.3d 840, 860 (5th Cir. 1998). There is no absolute right to
withdraw a guilty plea. See Powell, 354 F.3d at 370.
This court also reviews the district court’s denial of an evidentiary
hearing for an abuse of discretion. Id. An evidentiary hearing is required if
Tran has alleged facts that, if proven, would justify relief. Id; see also United
States v. Mergist, 738 F.2d 645, 648 (5th Cir. 1984).
Discussion
I. Whether the district court abused its discretion in denying Defendant-
Appellant’s Motion to Withdraw Guilty Plea without an evidentiary
hearing.
Tran bears the burden of establishing the fair and just reason for
requesting the withdrawal. Fed. R. Crim. P. 11(d)(2)(B); see also United
States v. Carr, 740 F.2d 339, 343-44 (5th Cir. 1984). In applying the standard,
the court considers the following factors: (1) whether Tran has asserted his
innocence; (2) whether the government would suffer prejudice if the motion
was granted; (3) whether Tran delayed in filing the motion to withdrawal; (4)
whether withdrawal would substantially inconvenience the court; (5)
whether close assistance of counsel was available to Tran; (6) whether Tran’s
original plea was knowing and voluntary; and (7) whether withdrawal would
waste judicial resources; “and, as applicable, the reason why defenses
advanced later were not proffered at the time of the original pleading, or the
reasons why a defendant delayed in making his withdrawal motion.” Id. The
court considers the totality of the circumstances in applying these factors. Id.
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Tran argued the Carr factors in his motion. On appeal, Tran also
relies on this court’s decision to vacate and remand in a similar situation in
United States v. Gardner, 15 F.4th 382 (5th Cir. 2021). But that opinion was
withdrawn and superseded by United States v. Gardner, No. 20-50481, 2022
WL 422167 (5th Cir. Feb. 11, 2022). However, the court merely concluded
in the substituted opinion that because the district court provided no analysis
it was unable to assess the denial for an abuse of discretion. Thus, it
remanded for the district court to consider Gardner’s Carr factors in the first
instance. That is not the case here, where the district court considered the
factors. Also, while Gardner is not Tran’s sole authority, the cases it relies
on are still good law.
Here, the district court set out the applicable law, including the Carr
factors, and offered a short analysis before denying relief. Specifically, the
district court found that: (1) Tran had not asserted his innocence; (2)
withdrawal would prejudice the government; (3) Tran delayed in filing his
motion; (5) Tran had adequate assistance of counsel; and (6) Tran’s plea was
knowing and voluntary. The court did not make explicit findings as to factors
(4) and (7) but made the general statement that “[i]n considering the factors,
this court finds that they weigh against” granting Tran’s motion.
Of particular significance, the district court said that “these
suppression issues were investigated by Defendant’s prior counsel before he
entered his plea. Indeed, Defendant had the benefit of discussing his case
with three different attorneys prior to entering his plea.” The district court
also said that Tran confirmed in his plea colloquy that he had an opportunity
to discuss possible defenses with counsel and that his plea was knowing and
voluntary. However, as discussed below herein, there is authority indicating
that the plea colloquy is not sufficient to remedy a deficiency by counsel.
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The district court cited document 124 as authority for its finding that
the suppression issues were investigated by Tran’s prior counsel before he
entered his plea. Document 124 is the government’s motion in limine to
preclude Tran from arguing any suppression issue at trial. The district
court’s order is unclear as to whether it was taking judicial notice of
everything contained in the motion or if it was referencing only a particular
part of the government’s characterization of events that it perhaps finds
somehow establishes what Tran’s prior counsel investigated.
The district court further said that Tran “had the benefit of discussing
his case with three different attorneys prior to entering his plea.” The court
did not elaborate on what those discussions were. But reliance on any
discussion about defenses with counsel does not counter the fact that Tran
asserts Jenkins told him he could still raise the suppression issues after
entering his plea. The district court cited United States v. McDonald, 416 F.
App’x 433, 436 (5th Cir. 2011), and disposed of Tran’s assertion by stating
that Tran “does not, however, present any evidence establishing such a
conversation took place.” The district court also did not cite any evidence
establishing that the discussions it found to have occurred actually took place.
Further, McDonald is unpublished.
Beyond not being controlling authority, McDonald does not appear to
support the district court’s findings. But it is worth a closer look for various
reasons. McDonald’s two suppression motions were heard and denied by
the district court. Id., 416 F. App’x at 434. McDonald then pleaded guilty.
However, McDonald later moved to withdraw his plea on the basis that it was
not knowing and voluntary because counsel erroneously informed him that
he could appeal the denial of the motions to suppress even if he pleaded
guilty. The district court denied the motion. On appeal, this court concluded
that the district court abused its discretion in denying McDonald’s motion.
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Of particular relevance, this court noted that it “does not review
claims of ineffective assistance of counsel on direct appeal unless the claim
was addressed by the district court or the record is sufficiently developed to
allow evaluation of the claim on its merits.” Id. 416 F. App’x at 435 (citing
United States v. Villegas-Rodriguez, 171 F.3d 224, 230 (5th Cir. 1999)). This
court concluded that “[t]he record in this case allows review of McDonald’s
claim in his direct appeal.” Id. We also said that the two-part Strickland test
applies to challenges based on ineffective assistance of counsel. See
Strickland v. Washington, 466 U.S. 668, 687 (1984). We quoted Hill v.
Lockhart, 474 U.S. 52 (1985), as follows: “Where . . . 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.” Id. at 56. Also, the defendant must show that counsel’s ineffective
performance affected the outcome of the plea process.” 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.” Id.
This court concluded that the erroneous advice by counsel regarding
McDonald’s appeal rights, including the denial of suppression motions, was
error and constituted deficient performance. In doing so, this court noted
that McDonald submitted affidavits from himself and counsel indicating that
he was advised he could appeal the suppression rulings even if he pleaded
guilty. This court then concluded: “That finding should have ended the
analysis because both prongs of the Strickland analysis were thus satisfied—
erroneous advice and prejudice that affected the defendant’s decision to
plead guilty. Accordingly, McDonald’s plea was not knowing and
voluntary.” McDonald, 416 F. App’x at 436. However, this court also said
that the district court stated that McDonald’s “recourse for ineffective
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assistance was a petition for habeas relief” and it “also assumed that
McDonald would only be prejudiced by counsel’s erroneous advice on the
appealability of the suppression issues if the district court’s suppression
ruling was incorrect.” Id. “This was error.” Id. In other words, the claim
is not dependent on the outcome of any suppression order. This court
reiterated that, when a “defendant waives his constitutional rights by
pleading guilty, it is crucial that the waiver be knowing and voluntary.” Id.
When a plea of guilty is made “as a result of mistake, it is an abuse of
discretion not to permit the plea to be withdrawn.” Id. (citing United States
v. Pressley, 602 F.2d 709, 710-11 (5th Cir. 1979)).
Under United States v. Urias-Marrufo, 744 F.3d 361 (5th Cir. 2014),
the issue of whether a defendant received ineffective assistance of counsel
“is distinct from” and “not, strictly speaking, relevant to the decision of
whether [he] was denied close assistance of counsel under Carr.” Id. at 365.
Further, there is a distinction between close assistance of counsel under
Carr’s Rule 11 analysis and a claim that a plea was not knowing and voluntary
as the result of ineffective assistance. As a general matter, this court will only
review a claim of ineffective assistance pursuant to the Carr analysis if the
record is sufficiently developed to address the merits on appeal or if the
district court addressed it. See Urias-Marrufo, 744 F.3d at 365; see also United
States v. Isgar, 739 F.3d 829, 841 (5th Cir. 2014); and McDonald, 416 F. App’x
at 435.
However, whether a defendant received ineffective assistance of
counsel is not the same as whether he was denied close assistance of counsel
under Carr. See Urias-Marrufo, 744 F.3d at 365-67. Urias-Marrufo raised a
claim under Padilla v. Kentucky, 559 U.S. 356 (2010), asserting that the
district court abused its discretion in denying her motion to withdraw her
guilty plea. See Urias-Marrufo, 744 F.3d at 363. Because counsel did not
inform her that her guilty plea would subject her to certain deportation,
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Urias-Marrufo argued that she received ineffective assistance of counsel
under the Sixth Amendment which precluded her from making a knowing
and voluntary guilty plea. Id. She also asserted that if she had known she
would be deported as a result of pleading guilty, she would not have done so.
The district court found that all seven Carr factors weighed against
Urias-Marrufo. This court concluded that the district court did not abuse
its discretion on five of the factors. But the court concluded further inquiry
was needed on the remaining two factors, whether Urias-Marrufo had close
assistance of counsel at the time of the plea and whether her plea was knowing
and voluntary. Id. at 365.
Pursuant to United States v. McKnight, 570 F.3d 641, 646 (5th Cir.
2009), this court conducted a fact-intensive inquiry to determine whether
Urias-Marrufo received close assistance of counsel under the Carr analysis.
See Urias-Marrufo, 744 F.3d at 365. This court reiterated, “[i]neffective
assistance is a basis for invalidating a conviction under the Sixth Amendment
and is not, strictly speaking, relevant to the decision of whether Defendant
was denied close assistance of counsel under Carr analysis.” Id.
Significantly, Urias-Marrufo said at her plea hearing that she had discussed
with her attorney the possible adverse immigration consequences, including
deportation, of pleading guilty. In light of that statement, this court
concluded that the district court did not abuse its discretion in finding that
Urias-Marrufo received close assistance of counsel.
This court then looked to “whether Urias’s guilty plea was knowing
and voluntary, which is inextricably tied to her ineffective assistance of
counsel claim under the Sixth Amendment.” Urias-Marrufo, 744 F.3d at
365-66. “The crux of Urias’s argument is that she did not enter her guilty
plea knowingly because she had ineffective assistance of counsel and was not
sufficiently informed of the consequences of her plea.” Id. at 366. “Thus,
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in Urias’s view, she should have been allowed to withdraw her plea on direct
appeal rather than wait until a collateral attack to do so, and the district court
erred in not addressing it.” Id. The court explained that Padilla was decided
in a collateral proceeding, not a direct criminal appeal, but that it raises
concerns that should be addressed sooner rather than later if it is clearly
raised in a direct appeal. See id. at 367. The court noted that Urias-Marrufo
clearly raised her Padilla claim in the district court as a claim for ineffective
assistance of counsel under the Sixth Amendment. See id. at 368. The
district court found that the duty established in Padilla applied only to habeas
claims for ineffective assistance of counsel. Further, absent Sixth
Amendment considerations, the district court found it sufficient that she
“was made aware of the possible immigration consequences of her plea, as
evidenced by her colloquy… and therefore she had knowingly and voluntarily
entered her guilty plea.” Id. (Emphasis original).
This court concluded that the district court erred in concluding it
could not address Urias-Marrufo’s Padilla claim. See id. “It is counsel’s
duty, not the court’s, to warn of certain immigration consequences, and
counsel’s failure cannot be saved by a plea colloquy.” Id. at 369. “Thus, it
is irrelevant that the magistrate judge asked Urias whether she understood
that there might be immigration consequences and that she and her attorney
had discussed the possible adverse immigration consequences of pleading
guilty.” Id.
Here, the district court found that Tran confirmed in his plea colloquy
that he had an opportunity to discuss possible defenses with his attorney.
However, as stated above, this court has said that is not sufficient. While
McDonald says that the defendant and his counsel submitted affidavits, it in
no way requires the submission of affidavits for a successful motion to
withdraw a plea. Like Urias-Marrufo, Tran asserted that he would not have
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pleaded guilty if he had known he would not be able to appeal any suppression
issues.
In United States v. Lord, 915 F.3d 1009 (5th Cir. 2019), this court said
that “we look to whether counsel was available to the defendant throughout
the proceedings.” Id. at 1016. Whether counsel was “available to the
defendant throughout the proceedings” is slightly different than whether the
defendant was represented by counsel. This is particularly so when there
were bases for each attorney to be removed or withdraw. There is no
requirement that counsel be suspended in connection to his representation
of Tran. Tran does not have to prove ineffective assistance of counsel to get
his guilty plea withdrawn. Tran repeatedly attempted to address the
suppression issues. He did not just delay for over a year. He attempted to
raise it with counsel, and he attempted to raise it with the court. The record
indicates that Tran also received correspondence from the district court
indicating that he could not file pro se motions because he was represented
by counsel.
For these reasons, we conclude that the district court abused its
discretion by not conducting a hearing. 4
Conclusion
Based on the record and the applicable authority, Tran has provided
sufficient evidence that the district court abused its discretion in denying an
evidentiary hearing on the motion to withdraw his guilty plea. Thus, we
VACATE and REMAND for an evidentiary hearing.
4
We recognize that, given the case history here, the potential for dilatory and/or
vexatious tactics by defendants might cause district judges to be skeptical of revisiting well-
Boykinized guilty pleas. This case, however, is one in which sufficient grounds are alleged
warranting the evidentiary hearing, at least based on the record before us.
12