FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 09-50580
Plaintiff-Appellee, D.C. No.
v. 3:09-cr-01776-
JOSE ANGEL DELGADO-RAMOS, DMS-1
Defendant-Appellant.
OPINION
Appeal from the United States District Court
for the Southern District of California
Dana M. Sabraw, District Judge, Presiding
Submitted March 9, 2011*
Pasadena, California
Filed April 7, 2011
Before: Pamela Ann Rymer, Consuelo M. Callahan, and
Sandra S. Ikuta, Circuit Judges.
Per Curiam Opinion;
Concurrence by Judge Rymer
*The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
4721
UNITED STATES v. DELGADO-RAMOS 4723
COUNSEL
Lynn H. Ball, San Diego, California, for defendant/appellant
Jose Delgado-Ramos.
Aaron B. Clark, Assistant United States Attorney, San Diego,
California, for plaintiff/appellee United States.
OPINION
PER CURIAM:
[1] Jose Delgado-Ramos appeals his conviction for
attempted entry after deportation, see 8 U.S.C. § 1326(a)-(b),
on the ground that the district court failed to inform him of the
immigration consequences of his plea during the plea collo-
quy. Delgado entered his plea without the benefit of a plea
agreement. Because Padilla v. Kentucky, 130 S. Ct. 1473
(2010), was decided after he was sentenced, Delgado did not
4724 UNITED STATES v. DELGADO-RAMOS
raise a Padilla argument to the district court. Therefore, our
review is for plain error. See United States v. Vonn, 535 U.S.
55, 63 (2002); United States v. Recio, 371 F.3d 1093, 1100
(9th Cir. 2004). Under this standard, a defendant must show
that: (1) the district court committed an error; (2) the error
was plain; (3) the error affected his substantial rights; and (4)
the error “seriously affect[s] the fairness, integrity or public
reputation of judicial proceedings.” Recio, 371 F.3d at 1100
(alteration in original) (quoting United States v. Olano, 507
U.S. 725, 736 (1993)) (internal quotation marks omitted). In
order to demonstrate that a non-structural error in a plea pro-
ceeding affected his “substantial rights,” a defendant must
“show a reasonable probability that, but for the error, he
would not have entered the plea.” United States v. Dominguez
Benitez, 542 U.S. 74, 83 (2004).
[2] In United States v. Amador-Leal, 276 F.3d 511 (9th
Cir. 2002), we held that Rule 11 and due process do not
require a district court to inform a defendant of the immigra-
tion consequences of his plea. Id. at 517. Delgado argues,
however, that the Supreme Court’s recent decision in Padilla
“casts doubt” on the continued force of Amador-Leal and
requests that we remand this case to the district court so that
he “can plead anew.”
For a three-judge panel to hold that an intervening Supreme
Court decision has “effectively overruled” circuit precedent,
the intervening decision must do more than simply “cast
doubt” on our precedent. Rather, it must “undercut the theory
or reasoning underlying the prior circuit precedent in such a
way that the cases are clearly irreconcilable.” Miller v. Gam-
mie, 335 F.3d 889, 900 (9th Cir. 2003) (en banc). That high
standard is not met here.
I
We have historically applied different tests for a defendant
seeking to withdraw a guilty plea based on a due process vio-
UNITED STATES v. DELGADO-RAMOS 4725
lation and a defendant seeking to withdraw a guilty plea based
on ineffective assistance of counsel. See Torrey v. Estelle, 842
F.2d 234, 235-37 (9th Cir. 1988).
“Due process . . . require[s] that a defendant’s guilty plea
be voluntary and intelligent.” Id. at 235 (citing Boykin v. Ala-
bama, 395 U.S. 238, 242 (1969)). A guilty plea can be volun-
tary even “if the defendant did not correctly assess every
relevant factor entering into his decision,” Brady v. United
States, 397 U.S. 742, 757 (1970), so long as it is “entered by
[a defendant] fully aware of the direct consequences” of his
plea, id. at 755 (quoting Shelton v. United States, 246 F.2d
571, 572 n.2 (5th Cir. 1957) (en banc)). Thus, we have held
that a court conducting a plea colloquy must advise the defen-
dant of the “direct consequences of his plea,” but “need not
advise him of ‘all the possible collateral consequences’ ” of
the plea. Torrey, 842 F.2d at 235 (quoting United States v.
King, 618 F.2d 550, 552 (9th Cir. 1980)).
In Fruchtman v. Kenton, 531 F.2d 946 (9th Cir. 1976), in
response to a defendant’s claim that his guilty plea was not
“voluntary” because the district court failed to inform him of
the immigration consequences of his plea, we held that the
risk of deportation is a collateral consequence of a guilty plea
and thus that the court’s failure to advise the defendant of that
risk did not violate Rule 11. See id. at 949. In Amador-Leal,
the defendant claimed a due process violation on the same
ground we had rejected in Fruchtman, i.e., the district court’s
failure to inform him of the immigration consequences of the
plea, but argued that Fruchtman was no longer good law
because AEDPA rendered the immigration consequences of a
guilty plea virtually “automatic.” Amador-Leal, 276 F.3d at
516. We again rejected this argument, holding that “[w]hat
renders the plea’s immigration effects ‘collateral’ is not that
they arise ‘virtually by operation of law,’ but the fact that
deportation is ‘not the sentence of the court which accept[s]
the plea but of another agency over which the trial judge has
no control and for which he has no responsibility.’ ” Id. at 516
4726 UNITED STATES v. DELGADO-RAMOS
(second alteration in original) (quoting United States v. Gon-
zalez, 202 F.3d 20, 27 (1st Cir. 2000), abrogated on other
grounds by Padilla, 130 S. Ct. 1473). Amador-Leal thus reaf-
firmed our longstanding rule that a district court has no obli-
gation under Rule 11 and due process to advise a defendant
of the immigration consequences of his plea. See id.
[3] In contrast, we assess a defendant’s claim that an attor-
ney’s advice in the plea context constituted ineffective assis-
tance of counsel under the test set forth in Strickland v.
Washington, 466 U.S. 668 (1984), and Hill v. Lockhart, 474
U.S. 52 (1985). Under Strickland, we ask whether counsel’s
advice regarding the plea “was within the range of compe-
tence demanded of attorneys in criminal cases,” Torrey, 842
F.2d at 237 (internal quotation marks omitted) (quoting Hill,
474 U.S. at 56)), and whether the defendant was prejudiced
by counsel’s deficient performance, id. In this context, we
held that an attorney’s failure to advise a defendant of the col-
lateral consequences of a plea (including immigration conse-
quences) did not amount to ineffective assistance of counsel.
United States v. Fry, 322 F.3d 1198, 1200 (9th Cir. 2003).
II
[4] The defendant in Padilla raised an ineffective assis-
tance of counsel claim, not a due process claim. 130 S. Ct. at
1478. In Padilla, the Court considered whether a defense
attorney who fails to advise a client that his plea carries a risk
of deportation has rendered ineffective assistance of counsel
under the Sixth Amendment. See id. at 1486-87. The Ken-
tucky court in that case had rejected Padilla’s Strickland claim
“on the ground that the advice he sought about the risk of
deportation concerned only collateral matters” because, in the
state court’s view, “collateral consequences are outside the
scope of representation required by the Sixth Amendment.”
Id. at 1481 (internal quotation marks omitted) (quoting Com-
monwealth v. Padilla, 253 S.W.3d 482, 483-84 (Ky. 2008)).
In disagreeing with this approach, the Court pointed out that
UNITED STATES v. DELGADO-RAMOS 4727
it had “never applied a distinction between direct and collat-
eral consequences to define the scope of constitutionally ‘rea-
sonable professional assistance’ required under Strickland,”
id., and held that the distinction was “ill-suited to evaluating
a Strickland claim concerning the specific risk of deporta-
tion,” id. at 1482; see also id. at 1483 (“[P]reserving the cli-
ent’s right to remain in the United States may be more
important to the client than any potential jail sentence.” (quot-
ing INS v. St. Cyr, 533 U.S. 289, 323 (2001))).
Turning to the merits of Padilla’s ineffective assistance of
counsel claim, the Court applied Strickland, focusing on
whether “prevailing professional norms” require attorneys to
advise their clients regarding the risk of deportation. Id. at
1482. After reviewing a wide range of guidelines enunciating
performance standards for lawyers, the Court concluded that
“[t]he weight of prevailing professional norms supports the
view that counsel must advise her client regarding the risk of
deportation.” Id. Noting the importance of immigration issues
to a typical client, and that the immigration consequences in
Padilla’s case should have been clear to the attorney, the
Court concluded that the defendant had “sufficiently alleged
constitutional deficiency to satisfy the first prong of Strick-
land,” id. at 1483, and remanded to the state court to deter-
mine prejudice, id. at 1487.
[5] Because the defendant in Padilla raised only a Sixth
Amendment claim, the Court had no occasion to consider the
scope of a district court’s obligation under Rule 11, whether
a defendant’s due process rights are violated if the court fails
to inform him of the immigration consequences of his plea, or
the continued viability of the distinction between direct and
collateral consequences in the due process context (which
traces back to Brady’s statement that a plea is voluntary so
long as a defendant is informed of the direct consequences of
the plea). Rather, the Court indicated only that where the
immigration consequences of a plea are clear, an attorney’s
failure to provide such information falls below professional
4728 UNITED STATES v. DELGADO-RAMOS
norms, see id. at 1486, and therefore failure to advise a defen-
dant of the immigration consequences of a plea can constitute
a Sixth Amendment violation under some circumstances, see
id. at 1486-87. While Padilla’s holding is directly applicable
to our Sixth Amendment analysis in Fry, it sheds no light on
the obligations a district court may have under Rule 11 and
due process. Accordingly, we cannot say that Padilla “under-
cut[s] the theory or reasoning underlying” our decision in
Amador-Leal “in such a way that the cases are clearly irrecon-
cilable.” See Miller, 335 F.3d at 900. Because Amador-Leal
remains the law of the circuit, the district court did not err in
failing to advise Delgado of the immigration consequences of
his plea. See Recio, 371 F.3d at 1100. Furthermore, because
Delgado does not assert on appeal that he would not have
entered the plea “but for the [district court’s alleged] error,”
he has not demonstrated the “probability of a different result”
and thus cannot show that the district court’s action affected
his “substantial rights.” Dominguez Benitez, 542 U.S. at 83.
AFFIRMED.
RYMER, Circuit Judge, concurring in the judgment:
Without expressing an opinion on the effect, if any, of
Padilla v. Kentucky, 130 S. Ct. 1473 (2010), on United States
v. Amador-Leal, 276 F.3d 511 (9th Cir. 2002), I would affirm
because on the facts in this case, there is no way that
Delgado-Ramos can show prejudice. See United States v.
Dominguez Benitez, 542 U.S. 74, 83 (2004).