United States v. Sergio Carrillo Murillo - Affirmation of Conviction

PUBLISHED UNITED STATES CO URT OF APPEALS FOR THE FOURTH C IRCUIT No. 23-6510 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. SERGIO CARRILLO MURILLO, Defendant – Appella nt. Appeal from the Unit ed States District Co urt for the Eastern Dis trict of Virginia, at Alexandria. Anthony John Trenga, Senior District Judge. (1:16-c r-00073-AJT-2) ARGUED: Octob er 31, 2024 Decided: March 5, 2026 Before WILKINSON, KING, and THACKER, Circuit Judges. Affirmed by published opinion. Judge King wrote the majo rity opinion, in which Judge Wilkinson joined. Jud ge Thacker wrote a dis senting opinion. ARGUED: Stephen Walter Spurgin, SPURGIN LAW OF FICE, El Paso, Texas, for Appellant. Jacqueline Romy Bechar a, OFFICE OF THE UNIT ED STATES ATTORNE Y, Alexandria, Virginia, f or Appellee. ON BRIEF: Jessica D. Aber, United States Attor ney, Richard D. Cooke, As sistant United Sta tes Attorney, OF FICE OF THE UNITED STA TES ATTORNEY, Richmo nd, Virginia, for A ppellee.

2 KING, Circuit Judge: This is the second appeal to this C ourt in these 28 U.S.C. § 2255 pr oceedings by defendant Sergio Carrillo Murillo, wh o uses the surname “Carrillo. ” The proceedings began in September 20 17, when Carrillo filed his § 2255 motion in th e Eastern District of Virginia, seeking to vacate the convicti on res ulting from his June 2016 guilty plea to a 21 U.S.C. § 846 offense of conspiracy to distribute cocaine. Because that offense cons titutes an “aggravated felony” under the Immigration and Nationality Act, and because Carrill o was a lawful permane nt resident but not a citizen of the Unit ed States, the conviction rendered him subject to mandatory deporta tion from this country. See Lee v. United States, 582 U.S. 357, 361 - 62 (2017) (ob serving that “a noncitizen convicted of s uch an [‘aggravated felony’ u nder the Immigration and Natio nality Act] is subject to mandatory deportation” (citing 8 U.S.C. §§ 1101(a)(43)(B), 1227(a)(2)(A)(iii))). By his § 2255 motion, Carrillo assert ed a Sixth Amendment ineffective assistance of counsel claim an d alleged that his crimi nal defense lawyer deficiently and prejudicially failed to advise him that he would be subje ct to mandatory deportation to his native Me xico because of his guilty plea. See Str ickland v. Wa shington, 46 6 U.S. 668, 6 87 (1984) (explai ning that an ineffective assistance claim requires showings “that counsel’s performance was defi cient” and “that the deficient performance prejudice d the defense”). In the previous appea l, we reviewed the di strict court’s rejection of Carrillo’s ineffective assistance c laim and denial of his § 2255 motion on the ground that he failed to demonstrate Strickland prejudice. See United States v. Carrillo Muril lo, 927 F.3d 808 (4th Cir. 2019) (“ Carril lo Murillo I ”). Based o n our conclusion that Carrillo di d demonstrate

3 Strickland prejudice, we reversed the district court’s jud gment. And because the distr ict court had not considere d whether Carrillo esta blished Strickland defic ient performance, we remanded for the court to decide that issue in t he first instance. On remand, the district court again rejected Carrillo’s inef fective assistance claim and denied his § 2255 motion, this ti me on the ground that he failed t o establish Strickland deficient performance. In this resultant appea l, as explained herein, we are now sati sfied to affirm. I. A. In February 2016, Carrillo and a coconspirat or transporte d a kilo gram of cocaine into Virginia, where they sold the drugs to a confiden tial informant who recorded the transaction while law enforcement of ficers observed it. Carillo was p romptly arrested an d then charged in M arch 2016 by the gran d jury in the Eastern Di strict of Virginia with t he 21 U.S.C. § 846 cocaine conspiracy offense to whic h he later plea ded guilty, plus a 21 U.S.C. § 841(a)(1) o ffense of possession of cocaine with intent to distribute. C arrillo retained criminal defense lawyer Katherine Martell, who negotiated a plea agreement under which the government agreed to drop the § 841(a)(1) charge in exchange for Ca rrillo’s guilty plea to the § 846 charge, allowing him to avoid a mandat ory minimum five -yea r sentence. Although there were im migration- related provi sions in a draft of the plea agreement that would have req uired Carrillo to, inter alia, refrain from contesti ng his removal fro m

4 the United States and waive his rig hts to apply for asylum and othe r such relief, Martell negotiated the omissio n of those adverse provisions from the f inal version of the plea agreement at Carrillo’s request. Carrillo agreed, however, t o a provision of the fi nal plea agreement entitl ed “Impact of Guilty Plea on Immigratio n Status,” which included an affirmation “that defendant wants to plead guilty regar dless of any immigration consequences that defe ndant’s plea may entail, even if the con sequence is the defendant’ s automatic removal fr om the United States. ” See United States v. Carrillo Murillo, No. 1:16- cr -00073, ¶ 19 (E. D. Va. June 21, 2016), ECF No. 47. During the June 2016 plea hearing, both the district court and Mart ell referred to Carrillo’s deportation as a “ [p] ossibility” and something that “may” occur as a result of his guilty plea. See J.A. 19, 24. 1 Upon confirming that Carrillo under stood he may be deported — and finding that Carrillo was competent to enter his plea and th at the plea was k nowing, voluntary, and support ed by the facts — the court accepted the plea. Thereafter, in September 2016, the court sentenced Carril lo to 24 months in pr ison. According to Carrillo, he learned several months later that he would be deported upon completion of his sentence. Carrillo proceeded to file his 28 U.S.C. § 2255 motion in September 2017, asserting his Sixth Amendment ineffective assi stance of counsel claim and seeking vacatur of his convictio n on the pre mise that Martell defic iently and prejudi cially failed to advise him 1 Citations herein to “J.A. __” refer to the contents of the Joint Appendix filed by the parties in the prese nt appeal, rather than t he prior one.

5 that his guilty plea would render him subject to mandatory deporta tion. 2 Carrillo proffered evidence including affi davits of several fa mily membe rs and his ow n declaration under penalty of perjury. At the directio n of the district court, Martell sub mitted a declaration, also under penalty of p erjury, in response. In June 2018, w ithout conducting an evidentiary hearing, the di strict court entered its Order rejecting Car rillo’s ineffective assistance claim and denying his § 2255 motion on the ground that he failed to demo nstrate Strickland prejudice. Se e United States v. Carrillo Murillo, No. 1:16 - cr -000 73, at 5 (E.D. Va. June 26, 2018), ECF No. 98 (the “Initial Order ”) (resol ving that “[t]he recor d as a whole concl usively establishes that [Carrillo] is not entitled to the relief sought,” re ndering an evidentiary hearing unnec essary under 28 U.S.C. § 2255(b)). The court invoked Carrillo’s affirmation in his plea agreement “that defendant wa nts to plead guilty regardl ess of any immigration consequences th at defendant’s plea may entail, even if t he consequence is the defendant ’s automatic remova l from the United States.” Id. at 6. As the court saw it, that affirmation precluded Carrillo from making the necessary showin g of “a reasonable probability t hat, but for coun sel’s error[s], he would not have pleaded guilty and would have insisted on going to trial.” Id. at 4 -6 (quo ting Hill v. Lockhart, 474 U.S. 52, 59 (1985)). Additiona lly, the court faulted Carrillo for failing to show “that it would hav e been rational und er the circumstances to 2 As an additio nal theory of ine ffective assistance, Carri llo alleged that Marte ll deficiently and prejudicially failed to attem pt to negotiate a plea agreement witho ut the mandatory deportation consequence s. Because he has since abandoned that theory, we do not further discuss it he rein.

6 reject the plea offer tha t did not subject hi m to a manda tory five - year sentence.” Id. at 5 - 6 (addressing Carrillo’s obligation to “ convince the c ourt ” that rejecting the plea offer “ would have been rational under the circu mstances” (quoting Pa dilla v. Kentucky, 559 U.S. 356, 372 (2010))). In early July 2018, Carrillo file d motions in th e district court to alter or amend the judgment pursuant to Federal Rule of Civil Procedure 59 (e) and for a certificate of appealability under 28 U.S.C. § 2 253(c). The court promptly denied Carrillo’s Rule 59(e) motion, now charac terizing it as “[d]ispositi ve” of the Strickland prejudice issue “that [Carrillo’s] contention — that he would no t have pleaded guilty had he know n the immigration conseque nces — is fundamental ly inconsistent wit h his acknowledgme nt in his Plea Agreement th at ‘defendant wants to plead guilty regar dless of any immigrat ion consequences that defe ndant’s plea may entail, even if the cons equence[] is the defen dant’s automatic removal fro m the United States.’” See Unit ed States v. Carrillo Murillo, No. 1:16- cr - 00073, at 5 - 6 (E.D. Va. Jul y 11, 2018), EC F No. 102 (the “Reconsideration Order ”). Nonetheless, the court grante d the req uested § 2253(c) certifi cate of appealability, specifying that Carrillo made a substantial sh owing of the denial of a constituti onal right on issues including “whether [his ] Plea Agreement has the disp ositive effect the Court attributes to it.” Id. at 6. B. Carrillo then appealed to this Cour t, challengi ng the distric t court’s r ejection of his ineffective assistance o f counsel claim and den ial of his 28 U.S.C. § 2 255 motion pursuant to the Initial and Reconsideration Ord ers. B y our Carrillo Murillo I d ecision of June 2019,

7 we concluded — contrary to the district cour t — that Carrillo demonstrated Stricklan d prejudice. See 927 F.3d at 815. Conseque ntly, we reversed the district court’s j udgment and remanded for the court to decide in the first instance whether Carrillo establi shed Strickland deficient per formance. Id. 3 Our review in Carrillo Murillo I of the distri ct court’s denial of Carrillo’s § 2255 motion without an evidentiary hearin g was de novo. See 927 F.3d at 815 (citing Unite d States v. Luck, 611 F.3 d 183, 186 (4th Cir. 2 010)). We were o bliged to resolve any factual ambiguities in the light most favorable to Carrillo. Id. (citing United States v. Poindexte r, 492 F.3d 263, 267 (4th Cir. 200 7)). And we formulated the q uestion before us with respect to Strickland prejudi ce as being whether Carrillo “point[ed] t o ev idence that demon strates a reasonable probabili ty that, with an accu rate understanding of the implications o f pleading guilty, he wou ld have rejected the dea l.” Id. at 816. In our Strick land prejudice anal ysis, we deter mined “that the d istrict court erred by giving dispositive weight to limi ted language from [Carrillo’s] ple a agreement, ” i.e., the affirmation “ that defendant wants to plead guilty regar dless of any immigration consequences that defe ndant’s plea may entail, even if the con sequence is the defendant’ s automatic removal fro m the United States.” See Carr illo Murillo I, 927 F.3d at 816. We specified that r ather than deeming “that singl e line dispositive,” the district court should 3 Largely relying on Carrillo’s plea agreement, a dissenting pane l member in Carrillo Murillo I advocated affirming the district court on the premise that Carrillo failed to show both deficient performance a nd prejudice under Stri ckland. See 927 F.3d at 8 19 - 24 (King, J., dissenting).

8 have “weigh[ed] evide nce that [Carrillo] would have rejected t he plea agreement had he known it carried a con sequence of mandatory deportation against th e evidence that [he] would have accepted it nonetheless.” Id. (inter nal quotation marks o mitted). Balancing the evide nce in the record before us, we conc luded that “the evidence demonstrates a reasona ble probability that, had [Carrillo] known the true and certain ex tent of the consequences of his guilty plea, he would have refused it.” See Carrillo Murillo I, 927 F.3d at 81 9. In so concluding, we observed that Carrill o “need not demonstrate that rejecting the plea agree ment was ‘the be st objective strategy or e ven an attractive option ’”; instead, “[h]e need onl y demonstrate that, f rom the perspective of a reasonable person in h is position, rejecti ng the plea agree ment would have been ‘rati onal.’” Id. at 817 (quoting United States v. Swaby, 855 F.3d 233, 244 (4 th Cir. 2017)). We fur ther recognized that deportation is often “an integra l” and someti mes even “the mos t important part” of a noncitizen defendant’s potential penalty, su ch that “ preserving [the defendant ’s] right to remain in the United States may be more im portant to the [defendan t] than any po tential jail sentence.” Id. at 817 -18 (quo ting Padilla, 559 U.S. at 364, 368). From there, we speci fied that “[t]he record h ere leaves little doubt that avoiding deportation was [Car rillo’s] main p riority.” See Carr illo Murillo I, 927 F.3d at 818. We premised that determination on evidence th at included the following: (1) Carrillo had “lived in the United States since he was seven years old”; (2) “[h]is family and his life are here in the United States ”; (3) he “retaine d Martell because he believed sh e had immigration experience,” as “Martell held h erself out as being uniquely experienc ed in mat ters of immigratio n”; (4) “Martell ackno wledged that she and [Carrillo] discussed

9 immigration extensivel y, that [Carrillo ] ‘expressed his desire to fight h is immigration case,’ and that she inf ormed [Carrillo] that he had to ‘fight his case’ in immigration court ”; and (5) Carrillo “endeavor ed to retain his immigration - related rights ” by having M artell negotiate the omission from the final version of the plea agreement a dverse immigratio n- related provisions cont ained in an earlier draf t. Id. (quoting J.A. 10 1). Additionally, w e credited Carrillo’s assertion that “[i]f [he] had known that by pleadin g guilty [he] woul d be deported from this country, [he] would hav e asked for a jury trial and tried to win [his] case even if the c hances of winning might b e small and [he ] might get more prison time.” Id. (alterations in or iginal) (quoting J.A. 68). Addressing the plea ag reement, we highlighte d “the equivocal phras es ‘may entail’ and ‘even if’” in its affirmation “ th at defendant wants to plead gui lty regardless of any immigration consequen ces that defendant’s plea may entail, even if th e consequence is th e defendant’s automatic removal from the United States.” See Carrillo Murillo I, 927 F.3d at 818. We discerned that such lang uage does “not suggest that mandatory deportation would not have c hanged [Carrillo’s] mind.” Id. at 819. And we accepted that “[o]f c ourse [Carrillo] was willing t o sign a plea agreement that said he ‘wants to p lead guilty regardless of any immigration consequences’ when he had been told — multiple times — that immigration conseque nces were merely a ‘possibility.’” Id. In that regard, we observed that the district court advised Carrillo during th e June 2016 plea he aring only that h e “‘may be deported’” and that the court’s warnin g “came moments after Martell stated on t he record that [Carrillo] fa ced merely a ‘[p]ossibi lity’ of deportation.” Id. (second alteration in original) (quoting J. A. 19, 24).

10 Finally, we concluded that “the distr ict cour t’s warning that [Carrillo] ‘may be deported’ was insuffi cient to cure Martell’s misadvice t hat his crime was not a cat egorically deportable offense,” in that the warning “w as ‘general and equivocal.’” See Carrill o Murillo I, 927 F.3d at 819 (quoting Un ited States v. Aki nsade, 686 F.3 d 248, 250 (4th Cir. 2012)). We also specified that “[t]he balance of evidence here weighs in favor of [Carrillo],” as “[t]he q ualified statements fro m [Carrillo’s] plea ag reement and equi vocal affirmations at his plea hearing do not outwei gh the evidence that [h is] main priority was remaining in this count ry with his family.” Id. In analyzing Strickland prejudice, we assessed the prejudicial effe ct of what Carrillo alleged to be Strickland deficient performance: Martell’s failure to inform him that he would be subject to mandatory deportatio n be cause of his gui lty plea. We de scribed this in various ways, inclu ding that Martell advised Carrillo that “deportation was a mere possibility that he could fight in immi gration court,” but “was wron g” in doing so, given that “a noncitizen co nvicted of [an ‘aggr avated felony’ under the Immigration an d Nationality Act] is sub ject to mandatory deportation”; that Martell left Carrillo without a “full[] underst[anding] ” of “the immigration implication s of his guilty plea” and their “true and certain extent”; and that Martell provided to Carrillo “misa dvice that his crime was not a categorically deporta ble offense.” See Ca rrillo Murillo I, 927 F.3d at 811, 815, 819. Significantly, however, we did not determine whether Carrillo actual ly established Strickland deficient per formance. Rather, we r emanded for the d istrict court to assess and decide that issue in the first instance, with the following explanati on and instructions:

11 Because the district co urt did not consider w hether [Carrillo’s] atto rney’s performance was defic ient, we decline to address the issue. Inst ead, the district court should consider it on remand. In this re gard, we are con fident our current precedent s heds sufficient light on the ap propriate standar d. See United States v. S waby, 855 F.3d 233, 240 (4th Cir. 2017) (“Ef fective representation by coun sel requires that cou nsel provide correct advic e when the deportation conseq uences are clear.”). See Carrillo Murillo I, 927 F.3d at 815. C. 1. On remand, in August 2022, the distr ict court conducted the f irst and only evidentiary hearing in these 28 U.S. C. § 2255 proceedings. Carrillo did not appear at the hearing, as he had been deported to his native Mexico aft er completing his prison sentence in November 2017. Two witnesses were called at the hear ing, both by Carrillo’s postconviction counsel. Those witnesses were Carrillo’s forme r criminal defense lawyer Martell, plus an att orney named Jam es Reyes who had been practi cing immigration law with Martell’s firm at the time of Carrillo’s June 2016 guilty plea and who recounted speaking with Marte ll (but not Carr illo) about the immigration consequences in Carrillo’s case. Carrillo also submitted various records of his court and immigration proceedings. Otherwise, Carrillo relied on the evidence tha t had previously been proffered in suppo rt of and in response to his § 2255 m otion, including the affi davits of his family members, his own declaration, and Martell’s declaration. The parties gave closin g arguments during the August 2022 hearing a nd submit ted post-hearing sup plemental briefings t o the district court. The crux o f Carrillo’s theory o f Strickland deficient pe rformance was that Mar tell deficiently failed to advise him th at, as

12 a result of his guilt y plea, he would be subject to “manda tory deportation” or “presumptively mandat ory deportation” under the Immigratio n and Nationality Act, see 8 U.S.C. §§ 1101(a)(43)(B), 1227(a)(2)(A)(iii), and would be statutorily ineligible for the discretionary relief of cancellation of removal, see id. § 1229b(a)(3). Carrillo cont ended that Martell should hav e informed him o f those “drastic immigra tion consequences of th e plea” because they we re both “clear” and “certain.” See J.A. 32 3, 325 (invoking the Supreme Court’s 2010 ruling in Padilla, see 559 U.S. at 369, that where “the dep ortation consequences of a par ticular plea are unclear or uncertain,” a criminal defen se lawyer “need do no more tha n advise a noncitizen cl ient that pending crim inal charges may carry a risk of adverse immigration consequences,” but where “the deportation consequence is truly clear, . . . the d uty to give correct advic e is equally clear”). In his arguments, Carrillo specified that Martell was constitutionally required to advise him that he wo uld, in fact, be found d eportable (meaning ine ligible for any relief from deportation) — not that he would, in fact, be deported. See J.A. 294- 97. On the one hand, with respect to the alleged certainty that he would be found deportable, Carrillo acknowledged that a noncitizen with an aggravated fel ony conviction like his could yet be eligible for “other relief, ” such as havin g the immigration case r eopened when the ho me country experiences a civil war or invasion. Id. at 294; see also id. at 2 88 (identifying being a crime victim a nd cooperating i n a criminal investigati on or prosecution a s other potential paths to relief). Carrillo insisted, however, that a finding of his deportability was inevitable be cause “no one has identified a ny [other relief for which he mig ht have qualified].” Id. at 294. In the w ords of Carrillo’s counse l: “The fact of the matter is there

13 was zero relief for Ser gio Carrillo Murillo. And that is a clear cert ainty in this particular case based on these fac ts.” Id. at 288. On the other hand, with respect to the confess ed lack of certainty that Carrillo would then be deported, his counsel recognized that “it’s the executive’s prerogative wh ether to actually remove a human being from the United States.” See J.A. 2 95. Because of the government’s discretio n to execute a deportation, counsel a dmitted that “it is 100 perc ent impossible for someon e in my position to tell someone [lik e Carrillo] that you will be deported.” Id. For its part, the gove rnment maintained t hat Martell rendered c onstitutionally sufficient representa tion based on evide nce that she conferred wit h Reyes about the immigration consequen ces of Carrillo’s case; correctly informed Carrillo that he would be “deportable, ” “remova ble,” and subject to dep ortation proceedings u pon completion of his sentence; and negotiated the o mission of adver se immigration- r elated provisions from the final plea agreement. The government al so pointed to Reyes’s hearing testimony suggesting that he would be “cautious n ot to speak in ‘absolutes’” and instead would “give most of his clients the exact advice Ms. Martell gave [Carrill o],” along with Martell’s hearing testimony indi cating that “[s]he did not say that [Carrillo] would certainly be removed from the United States, be cause in her e xperience man y clients with similar c onvictions ended up staying in the cou ntry due to agreements with the government and other reasons.” See J. A. 309-10.

14 2. By its Order of May 2023, the distr ict cour t concluded that Carri llo failed to establish Strickla nd deficient performance and thus again rejected his ineffective a ssistance claim and denied his § 2255 motion. See United State s v. Carrillo Murillo, No. 1:16 - cr - 00073 (E.D. Va. Ma y 12, 2023), ECF No. 135 (the “Re mand Order ”). The court rendered the following findings of fact in the Reman d Order, pre mised “ on t he evidence presen ted, and the credibility of th e witnesses and witnes s statements”: [B]efore his guilty plea, Martell did not tell [Carrillo] that as a result of his guilty plea, he would, in fact, be deported, that he was subject to “mandatory deportation” or “presumptively ma ndatory deportation” or ineligib le for cancellation of removal. She also d id not tell [Carrillo] or his fam ily that [Carrillo] would not, in fact, be deported. Rat her, Martell told [Carrillo] that he was “deportable” and “removabl e” and that he would be subject to immigration deportatio n proceedings after ser ving his sentence. Id. at 12. Additionall y, the court observed that “the ultimate outcome of deportatio n proceedings cannot be predicted wit h certainty.” Id. at 17. F or support, the court cited, inter alia, Carrillo’s c ounsel’s acknowledgm ent that “it’s the executive’s prer ogative whether [to] actually remove[] a human bein g from the United States.” Id. at 17 n.14 (quoting J.A. 295). The court also credited Re yes’s hearing testimony, on examination by the government, “that because of the uncertainties attenda nt postconviction imm igration proceedings, he would not tell someone in [Carrillo’s] p osition that he was ‘absol utely’ deportable.” Id. 4 4 As reflected in the Remand Order, Reye s testified that he would not advise a client in Carrillo’s position either that the client wa s “absolutely” deporta ble or that the client would “absolutely” be deported. See Remand Order 12 (recounting Reyes’s testi mony (Continued)

15 Importantly, t he distri ct court considered a uthorities that appeare d in Carrillo Murillo I — particularly the Supreme Court’s Padilla decision a nd our Court’s decisio ns in Swaby and Akinsade — but r esolved that “[t]his case presents fundamentally different facts.” See Remand Order 12-14 (disting uishing Padilla and Swaby); see also id. at 15 n.10 (same for A kinsade). According t o the district court, the q uestion herein — not squarely answered by Padilla, Sw aby, and Akinsade — is “whether what Martell said to [Carrillo], as reflecte d in the Court’s findings, was co nstitutionally sufficient as ‘reasonable[] under pr evailing professional norms,’” id. at 12 (alteration in original) (quoting Strickland, 466 U.S. at 68 8), or “whether there were necessarily othe r consequences of his guilty plea suffici ently ‘ succinct and straightforwar d ’ to constitutionally require their mention, ” id. at 15 -16 (quoting Pa dilla, 559 U.S. at 369). Put another way by the cou rt: W hether Martell’s advi ce was constitutionally adequate reduces to whether the immigration conse quences were so cle ar, succinct and straig htforward that she was constit utionally required to tell him that he would, in fact, be deported, or at least provide a more fuls ome description of th ose immigration consequences other than that his offense made him “depor table,” “removable,” and subje ct to deportation pro ceedings upon comple tion of his sentence. Id. at 14 (citation modi fied). “that he would explain to a client in [Carrillo ’s] position that there was a high likelihood of deportation, but. . . would not tell [the] cli ent that they would absolutely be deported ” or “‘that they would abs olutely be deporta ble’” (quoting J.A. 27 8)). Reyes further testified: “[I] n the immigration world, there a re alway s some people wi th. .. convictions that you are shocked that they’ re still here; they would technically normally be deportable. For some reason or other, they’re still out in socie ty[,] maybe as a legal permanent resident.” Id. at 12 n.8 (quoting J. A. 276).

16 Ultimately, the district court concluded that — given the “comple xities and the uncertainties attendant the immigration proc ess” — “ Martell was not constitutio nally required to provide advice beyond w hat was provided.” See Remand Order 1 7-19 (citing various persuasive authorities). That is, the court deter mined that Martell satisfied her constitutional obligati ons by infor ming Carrillo that his guilty p lea would rend er him “deportable,” “remova ble,” and subject to deportation proceedi ngs upon comp letion of h is sentence. According to the co urt, Martell was not constitutionally required to advise Carrillo that he would be subject to “mandatory deportation” or “presumptively mandatory deportation”; that he would be inelig ible for cancellation of remo val; or that it was a certainty that he woul d be either fo und deportable or be deported. The court therefor e rejected Carrillo’s ineffective assista nce claim and denied hi s § 2255 motion for failure t o prove Strickland defici ent performance. Id. at 19 (sum marizing that Carrillo “has failed to establish that he did not receive constitutionall y adequate representation in connect ion with his guilty plea”). 5 5 Notably, the government had urged the district court to revis it the issue of Strickland prejudice i n the remand proceed ings, notwithstanding this Court’s Carrillo Murillo I decision. See J.A. 308 (assert ing that Martell’ s hearing testimo ny “revealed information the Fourth Circuit did not have in the previously sub mitted affidavits a nd declarations” and “fir mly re - establishe d [Carrillo] suffered no prejudice”). But having concluded that Carrillo failed to prove Strickl and defic ient performa nce, the district court declined to revisit the p rejudice issue or assess whether it even cou ld have been appro priate to do so. See Remand Order 5 n.3.

17 * * * At the conclusion of th e Remand Order, the district court granted Ca rrillo another 28 U.S.C. § 2253(c) c ertificate of appealability, now on the broad is sue of “whether [he] received effective assistance of coun sel.” See Remand Order 19. Carrillo then timel y noted this appeal from the Remand Order, and we possess jurisdic tion pursuant to 28 U.S.C. §§ 1291 and 22 53. II. Where a district court has denied a 28 U.S.C. § 2255 motion after conducting an evidentiary hearing, we review the court’s fi ndings of fact for clear error and its legal conclusions de novo. See United States v. St itt, 552 F.3d 345, 350 (4th Cir. 2008). We also review de novo mi xed questions of law a nd fact, including the q uestion pre sented by a Sixth Amendment ineffective assistance of counsel claim of whether c ounsel’s performance was constitutionally d eficient. See United States v. Nic holson, 611 F.3d 191, 205 (4th Cir. 2010). III. As previously explained, under the Supreme C ourt’s seminal decision in Strickland v. Washington, a Sixt h Amendment ineffec tive assistance of cou nsel claim requires showings “that counsel ’s performance was def icient” and “that the de ficient performanc e prejudiced the defense. ” See 4 66 U.S. 668, 68 7 (1984). In Carrillo ’s prior appeal, by our decision in Carrillo M urillo I, we ruled that Carrillo demonstra ted Strickland prejudice,

18 reversed the district court’s judgment to the c ontrary, and remande d for the court to assess and decide in the first instance whether he established Str ickland deficient performance. See 927 F.3d 808, 81 5 (4th Cir. 2019). The is sue befor e us in this appeal is wheth er the court properly determi ned in its Remand Order that he did not. Without contesting th e district court’ s findings of fac t as being clear ly erroneous, Carrillo challenges the Remand Order on three grounds. First, he contends that Carrillo Murillo I ’s ruling that he demonstrate d Strickland prejudice necessit ates a ruling that he also established Stri ckland deficient performa nce. Second, Carrillo maintains that the facts of t his case are not materially distinguishab le from the facts of a Fou rth Circuit precedent in which deficient performance was ascertained, such that de ficient p erformance must also be recognized here. And third, he ins ists that he established deficient performance in a ny event. We address — and reject — these ar guments in turn. A. To start, Carrillo contends that our determination in Carrillo Mu rillo I that he demonstrated Strickland prejudice means that he “necessarily proved ” Strickland deficient performance. See Br. of Appellant 11. Of c ourse, deficient performance and prejudi ce “are separate and dist inct elements o f an ine ffective assistance clai m.” See Spencer v. Murray, 18 F.3d 229, 232 - 33 (4th Cir. 1994) (citi ng Strickland, 466 U.S. at 687). Moreover, although Strickland “discus s ed the performance component of a n ineffecti veness claim prior to the prej udice component,” the Su preme Court counsele d therein that “there is no reason for a court deciding an i neffective assistance claim to

19 approach the inquiry in the same order or even to address bo th components of the in quiry if the defendant makes an insufficient showing on one.” See 466 U.S. at 697. Consequently, a court may assume d eficient performance and proce ed directly to a prejudice analysis. See, e.g., United States v. Rangel, 781 F.3d 736, 746 (4th Cir. 2015); Moore v. Hardee, 723 F.3d 488, 500 (4th Cir. 2013). That is essenti ally what we did in Carrillo Murillo I, in that we assessed the pre judicial effect of what Carrillo alleged to be deficient performance, but expressly “decline[d] to address the [deficient perf ormance] issue” and instructed “t he district court [to] consider it on remand. ” See 927 F.3d at 815. The point Carrillo fail s to appreciate is that it is possible for a def endant to be prejudiced by his counsel’s perform ance without that performance b eing constitutionally deficient. For exa mple, the Third Circuit ha s concluded that a defendant wa s prejudiced by his counsel’s fail ure to raise on direct appeal a c laim that the trial court did not personally address hi m during sentencing, as required by Fede ral Rule of Criminal Procedure 32. See U nited States v. S cripps, 961 F.3d 626, 634 (3d Cir. 2020). Prejudice existed, the court of ap peals explained, becau se there was “a r easonable probability t hat we would have remanded for resenten cing if counsel had raised the Rule 32 error on direct appeal.” Id. As for deficient performance, h owever, the cour t recognized that “without understanding counsel ’s reasons for fail ing to raise t his error on appeal, we cannot categorically conclude that [counsel’s perform ance was constitutional ly inadequate].” Id. The court also observed that it would be imp roper to “presume that counsel’s failure to raise the Rule 32 error on appeal aut omatically constitutes deficien t performance,” in that “courts must ‘indulge a strong presumption’ th at counsel was effectiv e and may only find

20 otherwise if the defendant ‘overcom e[s] the presumptio n that .. . the challenged acti on might be considered sound trial strate gy.’” Id. (alterations in original) (quoting Strickland, 466 U.S. at 689). Thus, the court remanded for further proceedings, includin g an evidentiary hearing, on the deficient performa nce issue. Id. at 63 4-35. Similarly, we discerned Strickland prejudice in Carrillo Murillo I but remanded for the district court to decide in the f irst instance whether t here was Strickland deficient performance. Contrary to Car rillo’s contention, Car rillo Murillo I did not somehow require the district cour t to rule that deficient performance was established. Indeed, there would have been no rea son to remand if the result were preordaine d. Rather, the court was free to rule on the def icient performance issue as it saw fi t, which it did after properl y conducting an evidenti ary hearing and afford ing the parties ample opportunities to present their arguments. B. Next, Carrillo maintain s that Stricklan d defici ent performance must be recognized here because this Court previousl y ascertained deficient performance — on what Carrillo characterizes as being materially indistin guishable facts — in United States v. Swab y, 855 F.3d 233 (4th Cir. 201 7). It is Swaby that we highlighte d in our remand instructions in Carrillo Murillo I, explaining that “w e are confident ou r current prece dent sheds sufficient light on the appropriate standard” and invokin g Swaby for the proposi tion that “‘[e]ffective representation by couns el requires that counsel provide correct advice when the depo rtation consequences are clear.’” See Carrillo Murillo I, 927 F.3d at 815 (quoting Swaby, 855 F.3d at 240).

21 In Swaby, the d efendant noncitizen’s cr iminal defense lawyer sought “to avoid [Swaby’s] conviction o f an aggravated felony,” in recognitio n that such a conviction would render him subject to mandatory de portation. See 855 F.3d at 237 (explaining that “deportation is so likely for those convic ted of an aggravated felo ny that it is akin to mandatory deportation ” (internal quotation marks omitte d)). With the assistance of an immigration attorney, the criminal defe nse la wyer identified an of fense that she tho ught did not qualify as an aggravated felony an d negotiated a plea agr eement under which Swaby pleaded guilty to that crime. Id. “U nfortunately,” counsel’s s tatutory interpretation was mistaken and thus “Swaby unknowingly p leaded to an aggravated felony that rendered him automatically depo rtable.” Id. Based on those facts, we conclude d in Swab y that the defendant proved Strickl and deficient performanc e. See 855 F.3d at 240. Specifically, we ru led that counsel failed to “provide correct advice when the deportation consequence s are clear,” in th at counsel “onl y needed to read the correct version of the statute to determine tha t the crime was a n aggravated felony,” but misinforme d Swaby that the offense w as not an aggravated felony and therefore “that the plea agreement pr esented only a risk, but not a certainty, of deportation.” Id. As Carrillo would hav e it, the facts of t his ca se equate to those o f Swaby. See Br. of Appellant 15 (asserting that “[e]xactly as i n Swaby, [he] un knowingly pled g uilty to a crime that rendered him automatically deportable”). Like the district court, howe ver, we disagree. See Reman d Order 13 (observing that “[t]his case pr esents fundamentally different facts than ... Swaby ”). Of significant differe nce, S waby involved couns el’s

22 patently incorrect advice that the defendant could avoid being s ubject to mandatory deportation for the charged offense by plea ding guilty to a different crime mistake nly thought to carry lesser i mmigration consequen ces. We further recognize, as did the district co urt, that other authorities discussed in Carillo Murillo I also involve materially disti nguishable facts. See Remand Order 12 - 14, 15 n.10. Those include this Court’s decis ion in United States v. Akinsade, 686 F.3 d 248 (4th Cir. 2012), and the Supreme Cour t’s decision in Padill a v. Kentucky, 559 U.S. 356 (2010). Counsel i n Ak insade at least twice misadvised the nonci tizen defendant that he could not be dep orted because of pleading guilt y to the charged offen se, and the government did not con test deficient performan ce. See 686 F.3d at 250, 251 n.3. Sim ilarly, counsel in Padill a bot h failed to give t he noncitizen defendant any notice “that his plea would make him eligible for deportatio n ” and “provided him false assurance that his conviction would not r esult in his removal fro m this country.” See 5 59 U.S. at 368. The Supreme Court therefore specified t hat Padilla was “not a hard c ase in which to find deficiency.” Id. Here, by contr ast, Martell did not impart an y incorrect advice or fail to notify Carrillo that there would be deporta tion consequences to his guilt y plea. Rather, Martell correctly informed Ca rrillo that because of his guilty plea, he wo uld be “deportable,” “removable,” and subje ct to deportation procee dings once he co mpleted his sentence. The question in this case i s whether that ad vice — thou gh correct — was constitutio nally deficient, in that there was more informa tion Martell should have pro vided. Neither Swaby,

23 nor Akins ade or Padilla, squarely answers t his question because ea ch involved ma terially distinguishable facts. C. F inally, Carrillo conte nds that he established deficient performance in any event. That is so, according to Carrillo, because Ma rtell indeed was constitutionally requi red to provide more immigrat ion advice than she ga ve. On appeal, Carrillo states his posi tion thusly: “To provide co nstitutionally adequate representation, Atto rney Martell needed to advise [him] that when he pleaded guilty to a n aggravated felony, h e would be subject to mandatory deportation ” or “presumptive ly mandatory deportatio n.” See Br. of Appellant 18, 23 (emphasis removed). Carrillo also sug gests that Martell was required to notify hi m that he would, in fact, be found deportable, as it was clear there was no relief from deportation for which he might have qualified. In that regard, Carrillo specifies his statutory ineligibility for the relief of cancell ation of removal. “Simply by reading the relevant statutes,” he asserts, Martell “w ould have been aware of the drastic consequences of [his] guilty plea.” Id. at 23. As the Supreme Cou rt explained in Padill a, a court conducting a deficient performance evaluatio n must “determine whe ther counsel’s re presentation ‘fell belo w an objective standard of r easonableness,’” with the proper mea sure being “‘reasonablenes s under prevailing professional norms.’” See 55 9 U.S. at 366 (quoting Strickland, 4 66 U.S. at 688). Further, the P adilla Court specified t hat “[t]he weight of pr evailing professio nal norms supports the view that couns el must advise her client regarding the ris k of deportation.” Id. at 36 7. The Court elaborate d that

24 [i] mmigration law can be complex, and i t is a legal specialty of it s own. Some members of the bar who represent clients facing criminal charges, in either state or federal c ourt or both, may not be well versed in it. The re will, therefore, undoubtedly be numerous situatio ns in which the deportation consequences of a particular plea are u nclear or uncertain. The duty of the private practitioner in such cases is more li mited. When the law is not succinct and straightforward ..., a criminal defense attorney need do no more than advise a noncitizen client that p ending criminal charges ma y carry a risk of adverse im migration consequenc es. But whe n the deportation consequence is tr uly clear, ... the duty to give correct advi ce is equally clear. Id. at 369 (footn ote omitted). Concisely stating its holding, the Co urt articulated that “we now hold that counsel must infor m her client whether his plea carries a risk of deportation.” Id. at 374. Thereafter, in Swaby, this Court invoked Padilla f or the proposition t hat “[c]ounsel’s failure to advise a client a bout ‘succinct, clear, and explicit’ immigration consequences for a co nviction is constitution ally deficient perf ormance under the Si xth Amendment.” See Swaby, 855 F.3d at 240. “Effective representation by counsel,” we explained, “requires that counsel provide correct advice wh en the deportation consequences are clear.” Id. (citing Padilla, 559 U.S. at 369); see Carrillo Murillo I, 927 F.3d at 815 (quoting t his language from Swa by in our remand instr uctions to the distric t court). Considering the cl ear — and unclear — de portation conseque nces of Carrillo’s guilty plea, we join the district court in rejectin g his assertion that Mar tell failed to comply with the constitutional obligation expressed in Padilla and Swaby. See Remand Order 19 (concluding that “Martell was not consti tutionally required to provide advice beyond what was provided”). All that was clear h ere is that Carrillo was pleading guilty to “ a drug

25 trafficking crime” that constitutes an “aggravated fel ony” under t he Immigration and Nationality Act, see 8 U.S.C. § 1101(a)(43)(B), there by rendering him “deportable,” id. § 1227(a)(2)(A)(iii) (pr oviding that a noncitize n “convicted of an aggr avated felony at any time after admission is deportable”). To be sure, the Supreme Court has referred to being “dep ortable” under § 1227(a)(2)(A)(iii) as being “ subject to mand atory deportation.” See Lee v. United St ates, 582 U.S. 357, 361 - 62 (2017). And in Padi lla, the Court observed th at such deportabi lity makes “ deportation vir tually mandatory”; “ t hat constitutional ly competent co unsel would have advised [Padilla] that his conviction f or drug distribution made him subject to automatic deportation”; and that it “could easi ly be determined from reading the remov al statute” that Padilla’s “deportation was presumptively mandat ory.” See 559 U.S. at 359 - 60, 369. In other words, as we recognize d in Swaby, “depor tation is so likely for those convicted of an aggravated felony that it is aki n to ‘mandatory deportation.’” See 855 F.3d at 237 (citing Akinsad e, 686 F.3d at 254, wherein we con cluded that a warning “that Akinsade’s plea could lead to deportation” neither “co rrect[ed] counsel’s affirmative misadvice that Akinsad e’s crime was not categ orically a deportab le offense” nor “properl y inform[ed]” him that h e faced “mandatory de portation” by pleadi ng guilty). Critically, being “ subject to m andatory deportation ” does not mean that the noncitizen defendant will absolutely be deported or even absolutely b e found deportable. A deportability f inding and subsequen t deportation may be so likely that they are “virtually” or “presumptively mandatory,” but they are no t wholly inevitable. The foregoing authorities r eflect this. Moreover, C arrillo acknowledged it in the district court,

26 where his counsel reco gnized that a noncitize n with an aggravated f elony conviction like Carrillo’s may avoid a deportabilit y finding based on eligibi lity for “other relief” and may avoid deportation base d on “the executive’s prerogative whether to actually rem ove a human being from the United States.” See J.A. 294-95. So, because it was clear that Carrillo was pleading guilty to a crime that would render him deportabl e under the Immigr ation and Nationality Act, Martell was constitutionally required not merely to tell Carrillo that his plea “ma y carry a risk of adverse immigration consequen ces,” but to give him the correct and more specific advice that his plea would carry a risk of deportatio n by rendering him dep ortable. See Padilla, 559 U.S. at 369. Martell satisfied this obligation by c orrectly and specificall y informing Carrillo that he would be “depo rtable,” “removable,” a nd subject to deportati on proceedings upon completion of his sente nce. Although Carrillo fa ults Martell for failing to u se the terms “mandatory deportatio n” or “presumptively mandatory depor tation,” we do not. As explained by persuas ive authorities cited by the district court, see Re mand Order 17 - 19, using those bare ter ms could easily mislead a noncitizen defen dant to believe that deportation would be a certainty. See, e.g., Dilang D at v. United S tates, 983 F.3 d 1045, 104 8 - 49 (8th Cir. 2 020) (recognizing that a no ncitizen “with a depor table conviction may still seek r elief from removal” and that “ [t] hese im migration law comple xities should caution any criminal defense attorney not to advise a defen dant considering whether to plead guilty that the result of a post - conviction, contested re moval proceeding is clear a nd certain” (internal quotation marks omitt ed)); United States v. Cazarez -Santos, 66 F. Supp. 3d 130 1, 1309

27 (S.D. Cal. 2014) (warni ng that “[i]f attorneys a re universally required t o advise their clients they were ‘virtually ce rtain’ to be deported, most defen dants would undoubte dly accept that advice as true,” which would l ead some to “ be dissua ded from taking advantage o f favorable provisions o f law that m ight exempt them from deportatio n” and others to “ be coerced by excessively dire warnings into going to trial when in fac t, pleading guilty i s their best option”). That is not to say that a criminal defense la wyer must refrain fro m using terms like “mandatory deportatio n” or “presumptively mandatory deportation. ” Indeed, it could be beneficial to a nonciti zen defendant for his l awyer to use those ter ms with an accurate explanation that there is general ly a high lik elihood — but lack of certainty — that the defendant will be found deporta ble and then deporte d. Yet the lawyer is not constitutionally require d to do so, as the Sixth Amendment mandates advice only a s to the clear and certain immigration consequences of a guilty plea. See Padilla, 559 U.S. at 369; see also Dilang Dat, 983 F.3 d at 1048 (“In Padilla, the Supreme Court held that counsel must advise the defen dant that his convictio n would make him ‘d eportable’ ... if he pleaded guilty, not that deportation or removal was either mand atory or certain.” (interna l quotation marks omitte d)). That brings us to Carrillo’s suggestion that a deportability fin ding was certain in his particular case, such that Martell was cons titutionally required to advi se him that he would, in fact, be found deportable. Carrill o relies on his clear lack of statutory elig ibility for the relief of cancellation of removal. See 8 U.S.C. § 1229b(a)(3) (disqualif ying from cancellation of remov al a lawful permanent resident who has “be en convicted of any

28 aggravated felony”). A s Carrillo himself a cknowledged in t he district court, ho wever, there is “other relief” for which a noncitizen with an aggravated fel ony conviction could qualify, such as relief based on a civil war in or invasion of the h ome country, being a crime victim, or cooperating in a criminal investigation or prosecution. See J.A. 288, 294; see a lso Cazarez-Santos, 66 F. Supp. 3d at 1309 (obser ving that “[t]here are a number of ways non - citizen defendants who plead guilt y to aggravated felon ies can avoid deportation”). Meanwhile, Carr illo has made no effort to catalog th e possible reli ef or demonstrate his clear ineligibility for it. Instead, Carrillo has i nsisted without proof that “a clear certainty” exists that “there was z ero relief for [him].” See J.A. 288. In these circumstance s, Carrillo ha s failed to d emonstrate that Martell was constitutionally require d to advise him that he was ineligible for an y relief from depo rtation and thus would, in fac t, be found depo rtable. And having otherwise failed to establish Strickland deficient performance, he has prof fered no meritorious ground for cha llenging the district court’s Rem and Order. IV. Pursuant to the foregoi ng, we affirm the district court’s rejec tion of Carrillo’s Sixth Amendment ineffectiv e assistance of co unsel claim and denial of his 28 U.S.C. § 2255 motion for failure to es tablish Strickland deficient performance. AFFIRMED

29 THACKER, Circuit Ju dge, dissenting: Because the majority o pinion is squarely at od ds with our precedent, I must dissent. See United States v. Banks, 29 F.4th 16 8, 175 (4th Cir. 2022) (“ A panel of this Court cannot overrule a precedential decision. . .. ” (citation omitted)); see also McMellon v. Uni ted States, 387 F.3d 329, 333 (4th Cir. 2004) (“ When published panel opinions are in direct conflict on a given issue, the earliest opinion controls, unless the pr ior opinion h as been overruled by an interve ning opinion from this court sitting en banc or t he Supreme Court.”). When this case original ly appeared before us, we did not address whe ther Martell’s performance was deficient because there had n ot been an evidentiary hearing at that time. But, of note, we explained, “we are confi dent our current precedent s heds sufficie nt light on the appropriate sta ndard” to answer that question o n remand. United States v. Murillo, 927 F.3d 808, 815 (4th Cir. 2019) (“ Murillo I ”) (citing United States v. Swaby, 855 F.3d 233, 240 (4th Cir. 2017) (“Effective represen tation by counsel requires that counsel provide correct advice when the deportati on consequences are clea r.”)); see also Padilla v. Kentucky, 559 U.S. 356, 369 (2010) (“[W]he n the deportation c onsequence is trul y clear,. .. the duty to give cor rect advice is equally cl ear.”). Indeed, it does. In my view, Padilla and Swaby plainly dict ate a finding that Marte ll’s performance was d eficient here. As the majority explai ns, Appellant pled guilt y to conspiracy to distr ibute cocaine, in violation of 21 U.S.C. §§ 841(a)(1) an d 846 -- an “aggravated felony” pursuant to the Immigration and Nati onality Act. Murillo I, 927 F.3d at 811; see also 8 U.S.C. § 1101(a)(43)(B) (defi ning “aggravated felo ny” as “illicit traffick ing in a contr olled substance, including a drug trafficking crim e). “Under federal immigration law, any

30 [noncitizen] convicted of an ‘aggravated felon y’ is deportable.” Swaby, 855 F.3d at 236. While there may be c ertain limited exce ptions, we have cons istently recognized that “deportation is so likely for those convic ted of an aggravated felo ny that it is akin to ‘ mandatory deportatio n.’” Id. at 23 7 (emphasis supplied) (citi ng United States v. Akinsade, 686 F.3 d 248, 254 (4th Cir. 2012)); see also Ante at 25 (recognizing that the Supreme Court has “referred to bein g ‘deportable’. .. as being ‘s ubject to mandatory deportation’”). And, the Supreme Co urt has left no doubt that “[c]ounsel ’s failure to advise a client about ‘succinct, clea r, and explicit’ im migration consequences for a conviction is constitutionally deficie nt performance under the Sixt h Amendment.” Swaby, 855 F.3d at 240 (quoting Padilla, 559 U.S. at 3 68). In ot her words, “when the deportation c onsequence is truly clear,. .. t he duty to give c orrect advic e is equally clear.” Padilla, 55 9 U.S. at 369. Based on these principles, Martell was req uired to provide advice reflecting that deportation was manda tory. But instead of advising Appellant o f this “clear and explicit” immigration consequen ce, Martell c haracterized the likelih ood of depo rtation flowin g from Appellant’s plea as a mere “possi bility.” Sw aby, 855 F.3d at 240; J.A. 334. The district court found that “Mart ell told [Appellant] tha t he was ‘deporta ble’ and ‘removable’ an d that he would be s ubject to immig ration deportation proceedings after serving his sentence.” United States v. Carrillo Murillo, No. 1:16 - cr - 00073 (E.D. Va. May 12, 2023), ECF No. 135. But, critically, the distri ct court also recognized that “Martell did not tel l [Appellant] that as a result of his g uilty plea, he would, in fact, be d eported, that he was subject to ‘mandatory deportation’ or ‘presumptively ma ndatory deportation’ or ineligible

31 for cancellation of removal.” Id. Ind eed, Martell herself testified th at “[s]he did not sa y that [Appellant] would certainly be remo ved from the United States,” J.A. 309 – 10, and that she “did not use the words that it would be a mandatory -- I didn’t tell him that it was a mandatory depo rtable offense,” id. at 265. Instead, M artell explained that she simply tol d Appellant, “you ma y be deported.” Id. at 267 (emphasis supplied); see also id. at 18 –19 (After informing the district court t hat Appellant was a lawf ul permanent resid ent, the district court asked Martell, “Possibi lity of deportation then?” to whi ch Martell responded, “ Possibility.” (emphasi s supplied)). Martell explained that s he did not characterize the deportati on as mandatory because she could not say for certain that Ap pellant would be removed fro m the United States “because in her experi ence many clients with similar conviction s ended up staying in t he country due to agree ments with the gover nment and other reasons.” J.A. 30 9 –10. According to the m ajority, this “conf essed lac k of certainty” as to Appellant’s deportation clears Martell of any wrongdoing as s he “did not impart any inc orrect advice” nor did she “fail to notify [Ap pellant] that there would be deportation cons equences to his guilty plea.” Ante at 13, 22. But the problem with t hat analysis is that it completel y disregards Padilla and Swaby. In Padilla, the United States Supre me Court held that the Sixth Amendment's guarantee of effective assistance of cou nsel protects a criminal defe ndant from erroneous advice about deporta tion, and that a defendant establishes St rickland ’s deficient performance prong by demonstrating tha t counsel failed to accu rately advise the defen dant when the immigrati on consequence of such a guilty plea “could easily be determi ned from

32 reading the removal statute.” Padilla, 559 U.S. at 368 – 69. In that case, counsel provid ed his client with the fa lse assurance that his aggravated felo ny conviction would not lead to his deportation. The Supreme Court acknowledged t hat immigration law can be “c omplex,” and that where the law is unclear or discreti onary, it may be sufficient to a dvise a client that he “may” face deportation. Id. at 369. Significantly, howe ver, in Padilla the Court emphasized that where the deportati on consequences of a plea are “truly clear. . . the duty to give correct advice is equally clear.” Id. And the Court furth er explained that, under current federal immig ration law, a noncitizen’s aggr avated felony convict ion has a “succinct, clear, and ex plicit” consequence of rendering them cat egorically deportable. Id. at 368. Because “preserving [a] client’s right t o remain in the United States may be more important to the client than any potential jail sentence,” the S ixth Amendmen t right to effective assistance of counsel requires that de fense counsel “inform her client whether his plea carries a risk of deportation.” Id. at 3 68, 374. Thus, the Court found cou nsel’s performance deficient in Padilla. Id. at 369 (“The consequences of Padilla’s plea could be easily determined from reading the re moval statute, his deportatio n was presumptively mandatory, and his counsel’s ad vice was incorrect. ... [Therefore,] Padilla ha s sufficiently alleged con stitutional deficienc y to satisfy the first pr ong of Strickland.”). Then, in Swaby, we relied on this Supreme Court precede nt to hold that because an aggravated felony con viction inevitably resu lts in a mandatory deportation, advising a defendant that there is only a risk, but not a certainty, of deport ation constitutes deficie nt performance pursuant to Strickland. Swaby, 855 F.3d at 240. We noted that, l ike in

33 Padilla, counsel “failed to inform Swaby that, under the plea agreement, Swaby would be pleading to an aggr avated felony that would re nder him categorically deportable.” I d. And like the false assurances Padilla’s co unsel made, Swaby’s c ounsel advised him only tha t “the plea agree ment presented o nly a risk, but not a certainty, of deportation.” Id. We held that this was deficient performance under the Sixth Amendment because “[e]ff ective representation by couns el requires that counsel provide correct advice when the depo rtation consequences are clear. ” Id. And becau se noncitizens “rendered de portable because of an aggravated felony are ineligible for asylum or cancellation of removal,” which is “akin to mandatory deportation, ” we held that advising a noncit izen that there is only a risk, but not a certainty, of deportation constitutes defic ient performance. Id. at 236 –37 (internal quotation marks om itted) (citing Moncrieffe v. Holder, 569 U. S. 184, 187 (20 13); Akinsade, 686 F.3d at 2 54). To me, the simila rity between this case an d Padilla and Swaby coul d not be more clear. Yet, the majority attempts to factually distinguis h Padilla and Swaby from the case at hand because in both of those cases, cou nsel failed to advise th at the offenses were aggravated felonies a t all. Ante at 21 – 22. B ut this is a distinc tion without a difference. The key point is that in Padilla, Swaby -- and this case -- the offenses at issue were, in fact, aggravated felonies. And these precedent ial rulings from both the Su preme Court and our court focus on the fact that because the offens es were aggravated fel onies, the deportation consequences we re clear and corres ponding warnings were constitu tionally required. See Padilla, 559 U.S. at 36 9 (“The consequences of Padilla’s [a ggravated felony] plea could be easily determined from reading the re moval statute, his deportatio n was presumptively

34 mandatory, and his counsel’s advice [provi ding false assurances that his conviction wo uld not result in his remov al] was incorrect.”); Swaby, 855 F.3d at 240 (“[Swaby’s counsel] failed to inform S waby that, under the plea agreement, Swaby w ould be pleading to an aggravated felony that would render him categorically d eportable…[e]ffective representation by couns el requires that counsel provide correct advice when the depo rtation consequences are clear.”). Here, there is no daylight between Martel l’s actions and th ose of the counsel in Padill a and Swaby. Martell failed to advise Appellant that, because he pled guilty t o an aggra vated felony, he would be subject to mandator y deportation -- not just “deportable” or “removable.” There is a distinct differe nce. One implies m ere risk, while the oth er accurate ly conveys nea r certainty. See S waby, 855 F.3d at 238 (“Wh ile neither [counsel] nor the district court could guarantee S waby’s immigration consequ ences, the district court warned Swaby of mere ly the ‘risk’ of deportation. Neither [c ounsel] nor the district cour t informed Swaby that he was pleading to a crime that rendere d him automatically deportable.”). As e xplained above, “ when th e deportation consequ ence is truly clear, .. . the duty to give correct advice is equally clea r.” Padilla, 559 U.S. at 369. Because our precedent makes “truly clear” that the immigratio n consequence was man datory deportation, it is “equally clear” that Martell was requir ed to adv ise Appellant that he would be rendered “categoric ally” or “automatically deport able.” Swaby, 855 F.3d at 240. Therefore, Martell’s fai lure to provide Appellant with the “correct ad vice when the deportation conseque nces [were] clear,” con stituted deficient perfo rmance pursuant to Strickland. Swaby, 855 F.3d at 239–240 (citing Strickland, 466 U.S. 668).

35 At bottom, the analysis here is straightforward: • Appellant pled guilty to conspiracy to distribute cocaine, in violatio n of 21 U.S.C. §§ 841(a)(1) a nd 846 -- an “aggravated felony” pursuant to the Immigration and Natio nality Act. 8 U.S.C. § 1101(a)(43)(B); • We have consistently recognized that “ deportation is so l ikely for those convicted of an aggravated felony t hat it is akin to ‘ mandatory deportation.’” Swab y, 855 F.3d at 237 (emphasis supplied) (citing Akinsade, 686 F.3d at 254); see also Ante at 25 (recognizing that the Supreme Court has “re ferred to being ‘deport able’ . . . as being ‘sub ject to mandatory deportation’”); • The Supreme Court has left no doubt that “[c]ounsel’s failure to advise a client about ‘succinct, clear, and explic it’ immigration consequen ces for a conviction is constitu tionally deficient performance under t he Sixth Amendment.” Swaby, 855 F.3d at 240 (quotin g Padilla, 559 U.S. at 3 68); • Martell herself testifie d that “[s]he did not say that [Appellant] would certainly be removed from the United States,” J.A. 309 – 10, and t hat she “did not use the words th at it would be a mandatory -- I didn’t tell him that it was a mandatory deportable offense.” Id. at 26 5. Instead, Martell explain ed that she simply told Appell ant, “you may be depor ted.” Id. at 267; • The Court in Padilla explained that, under cu rrent federal immigrati on law, a noncitizen’s aggrava ted felony convi ction has a “succinct, clear, and explicit” conseque nce of rendering the m categorically deportab le. P adilla, 559 U.S. at 368. And because “preserv ing [a] client’s right to remain in the United States may be more important to the client tha n any potenti al jail sentence,” the Sixth A mendment right to eff ective assistance of co unsel requires that defense c ounsel “inform her clie nt whether his plea carries a risk of deportation.” Id. at 368, 374; • Because noncitizens “r endered deportable because of an aggra vated felony are ineligible for asylum or cancella tion of removal,” which is “a kin to mandatory deportation, ” we have held that advising a noncitizen that there is only a risk, but not a certainty, of deportation const itutes deficient performance under a Strickland inquiry. Swaby, 855 F.3d at 2 36 –37 (internal quotation marks omitted) (citing Moncrieffe, 569 U.S. at 187; Akinsade, 686 F.3d at 2 54);

36 • Because our precede nt makes “truly clear” that the i mmigration consequence to Appell ant was mandator y deportation, it is “e qually clear” that Martell was required to advise Ap pellant that he would be re ndered “categorically” or “automatically de portable.” Swaby, 855 F.3d at 24 0. She did not do so. Therefore, consiste nt with Padilla and Swaby, Ma rtell’s performance was defici ent. As a result, I would r everse the district court’s decision denying Appellant’s 28 U.S.C. § 2255 mot ion and concl ude that Appel lant demonstrated co nstitutionally defic ient performance sufficient to prevail on his ineffe ctive assistance of counsel claim. To hold otherwise runs counter to our precedent.