US v. Murillo: Carillo Murrillo (who goes by Carillo) pled guilty, pursuant to a plea agreement, to a cocaine conspiracy offense in 2016. An issue running through the plea negotiations was the immigration impact any conviction would have on Carillo – he refused, for instance, to agree not to contest his removal as part of the plea agreement. The district accepted his guilty plea “after confirming that Carillo understood he may be deported.” He was sentenced to 24 months in prison and (months later) learned he would be deported after serving his sentence.
Carillo filed a §2255 motion, arguing he received ineffective assistance of counsel because his attorney had not told him he would be subject to mandatory deportation as a result of his conviction. Without holding a hearing, the district court denied the motion, holding that Carillo could not show the required prejudice. The Fourth Circuit reversed on appeal, holding that Carillo had shown prejudice – noting that, without a hearing a factual findings, it was required to take Carillo’s assertions as true – and remanding for a hearing on whether counsel had rendered deficient performance.
On remand, Carillo argued that counsel had failed to advise him that, as a result of his plea, “he would be subject to ‘mandatory discrimination’ or ‘presumptively mandatory deportation’ . . . and would be statutorily ineligible for the discretionary relief of cancellation of removal.” The Government countered that it was enough that counsel informed Carillo he was “deportable,” relying on the fact that changed circumstances either in his home country (such as the outbreak of civil war) or in the executive (ultimately responsible for the deportation decision) made it impossible for defense counsel to say, with certainty, a person would absolutely be deported. The district court agreed and, again, denied Carillo’s §2255 motion.
On appeal, a divided Fourth Circuit affirmed the denial of Carillo’s §2255 motion. Noting that Carillo did not take issue with any factual findings made by the district court, the Fourth Circuit first rejected his argument that its initial holding that he had demonstrated prejudice “necessarily proved” deficient performance. The court held that it could assume deficient performance to address prejudice, which is what it did. The court then distinguished this case from prior precedent where counsel’s advice on deportation had been clearly incorrect, which was not the case here. Ultimately, the court held that counsel had performed her job properly by informing Carillo that a conviction would make him “deportable” and nothing more certain was required.
Judge Thacker dissented, arguing that prior precedent, from the Fourth Circuit and Supreme Court, compelled a finding of deficient performance.
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