United States v. Sergio Murillo , 927 F.3d 808 ( 2019 )


Menu:
  •                                     PUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    No. 18-6844
    UNITED STATES OF AMERICA,
    Plaintiff – Appellee,
    v.
    SERGIO CARRILLO MURILLO,
    Defendant – Appellant.
    Appeal from the United States District Court for the Eastern District of Virginia, at
    Alexandria. Anthony John Trenga, District Judge. (1:16-cr-00073-AJT-2)
    Argued: March 20, 2019                                        Decided: June 24, 2019
    Before MOTZ, KING, and THACKER, Circuit Judges.
    Reversed and remanded by published opinion. Judge Thacker wrote the opinion, in
    which Judge Motz joined. Judge King wrote a dissenting opinion.
    ARGUED: Stephen Walter Spurgin, SPURGIN LAW OFFICE, El Paso, Texas, for
    Appellant. Richard Daniel Cooke, OFFICE OF THE UNITED STATES ATTORNEY,
    Richmond, Virginia, for Appellee. ON BRIEF: G. Zachary Terwilliger, United States
    Attorney, Michelle P. Tonelli, Special Assistant United States Attorney, OFFICE OF
    THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee.
    THACKER, Circuit Judge:
    On March 24, 2016, a grand jury indicted Sergio Carrillo Murillo (“Appellant”)
    for conspiracy to distribute and possession with intent to distribute cocaine.        Three
    months later, Appellant pled guilty to conspiracy to distribute cocaine, in violation of 21
    U.S.C. §§ 841(a)(1) and 846.
    Following his arrest, and throughout the plea negotiation process, Appellant’s
    purported primary concern was the impact a criminal conviction could have on his status
    as a lawful permanent resident of the United States. His attorney advised him that, if he
    pled guilty to the lesser included offense, deportation was a mere possibility that he could
    fight in immigration court. But Appellant’s attorney was wrong: conspiracy to distribute
    cocaine is an “aggravated felony” under the Immigration and Nationality Act, see 8
    U.S.C. § 1101(a)(43)(B), and a noncitizen convicted of such a crime is subject to
    mandatory deportation, see 
    id. § 1227(a)(2)(A)(iii).
    On September 7, 2017, Appellant moved under 28 U.S.C. § 2255 to vacate his
    conviction on the ground that he received ineffective assistance of counsel in violation of
    the Sixth Amendment. The district court denied his motion, and Appellant appealed. For
    the reasons that follow, we reverse the decision of the district court and remand for
    further proceedings.
    I.
    In 1995, when Appellant was seven years old, he and his family moved from
    Mexico to the United States. Appellant has lived in the United States ever since. Today,
    Appellant is a lawful permanent resident. He no longer has family in Mexico, and he is
    2
    engaged to be married to an American citizen. As such, “[s]taying in the United States
    with [his] family has always been [his] number one priority.” J.A. 65. 1
    Twenty-one years after he came to the United States, Appellant got into some
    legal trouble. On February 10, 2016, Appellant traveled with another man from New
    Mexico to Virginia to sell a kilogram of cocaine. Unknowingly, the pair sold the drugs to
    a confidential informant. The confidential informant recorded the transaction while law
    enforcement officers observed it. After the exchange, Appellant was arrested. On March
    24, 2016, a grand jury indicted Appellant on two counts of cocaine-related offenses: (1)
    conspiracy to distribute in violation of 21 U.S.C. §§ 841(a) and 846; and (2) possession
    with intent to distribute in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2.
    Shortly after his arrest, Appellant retained attorney Katherine Martell (“Martell”)
    to represent him.     Given his circumstances, Appellant wanted an attorney with
    immigration law experience, and he had heard Martell touting her knowledge of
    immigration law on Spanish radio. 2
    1
    Citations to the “J.A.” refer to the Joint Appendix filed by the parties in this
    appeal. Citations to “Supp. J.A. Vol. I” refer to the first volume of the Supplemental
    Joint Appendix also filed by the parties in this appeal.
    2
    Martell hosts a live radio show called Tu Abogada Latina, which translates to
    Your Latina Lawyer. See First Point Law Group, http://firstpointlawva.com/katherine-
    martell/ (last visited Apr. 15, 2019). On the show, Martell discusses “a wide range of
    legal issues facing the Latino Community.” 
    Id. On the
    show’s Facebook page, Martell
    advises listeners -- in Spanish -- not to trust immigration advice from friends or
    neighbors.         See Tu Abogada Latina, Facebook (Apr. 11, 2019),
    https://www.facebook.com/Tuabogadalatina/           posts/muy-buenas-tardes-con-todos-
    felicidades-a-la-cumplea%C3%B1era-el-dia-de-hoy-la-doctor/528742127290372/.
    (Continued)
    3
    On Appellant’s behalf, Martell negotiated a plea agreement with the Government.
    The Government offered to drop the possession with intent to distribute charge if
    Appellant would plead guilty to the conspiracy charge. That deal allowed Appellant to
    avoid a mandatory minimum sentence of five years. See 21 U.S.C. § 841(b)(1)(B)(ii).
    After discussing a draft of the plea agreement with Appellant, Martell noted in the margin
    of the draft, “Ask to omit immigration waivers.” J.A. 109. Specifically, Martell sought
    to omit five immigration-related clauses from the draft:
    • (1) “Consent Given for Removal from the United States”
    (which would have required Appellant not to contest removal
    proceedings brought against him);
    • (2) “Waiver of Rights Related to Removal from the United
    States” (which would have required Appellant to waive his
    rights to apply for all forms of relief or protection from
    removal or deportation);
    • (3) “Exception for Changed Circumstances Arising After
    Plea” (which would have allowed Appellant to apply for
    asylum, withholding of removal, or protection under Article 3
    of the Convention Against Torture based only on
    circumstances arising after the entry of his plea);
    • (4) “Abandonment of Pending Applications for Relief from
    Removal” (which would have required Appellant to abandon
    any existing immigration benefit he holds or any pending
    application for relief from removal or deportation); and
    • (5) “The Defendant’s Cooperation in the Defendant’s
    Removal” (which would have required Appellant to agree to
    Instead, Martell invites followers to her office for a “totally free and private
    consultation.” 
    Id. 4 assist
    the Department of Homeland Security in any future
    removal proceedings). 
    Id. at 108–10.
    Indeed, Martell successfully negotiated with the Government to omit from the
    final plea agreement those five clauses and one more: “Plea Agreement Binding for
    Purposes of Removal Proceedings” (requiring Appellant to acknowledge that his waiver
    of immigration-related rights is binding in any future removal proceedings). Compare 
    id. at 108–110
    (draft plea agreement), with Supp. J.A. Vol. I at 1–13 (final plea agreement).
    However, although it did not include an explicit waiver of rights related to
    removal from the United States, the final plea agreement did mention potential
    immigration consequences.       Specifically, the plea agreement acknowledged that
    deportation was a possibility and provided that Appellant wanted to plead guilty
    regardless:
    [Appellant] recognizes that pleading guilty may have
    consequences with respect to [Appellant’s] immigration
    status if [Appellant] is not a citizen of the United States.
    Under federal law, a broad range of crimes are removable
    offenses, including the offenses to which [Appellant] is
    pleading guilty. Because removal and other immigration
    consequences are the subjects of a separate proceeding,
    [Appellant] understands that no one, including [Appellant’s]
    attorney or the District Court, can predict to a certainty the
    effect of [Appellant’s] conviction on [Appellant’s]
    immigration status. [Appellant] nevertheless affirms that
    [Appellant] wants to plead guilty regardless of any
    immigration consequences that [Appellant’s] plea may entail,
    even if the consequence is [Appellant’s] automatic removal
    from the United States.
    5
    Supp. J.A. Vol. I at 10–11.         Crucially, throughout her discussions with Appellant
    regarding the plea agreement, Martell assured Appellant that he would be able to fight
    deportation in immigration court.
    On June 21, 2016, Appellant pled guilty to the conspiracy charge. At Appellant’s
    plea hearing, both Martell and the district court characterized the likelihood of
    deportation flowing from Appellant’s plea as a possibility: First, after Martell informed
    the district court that Appellant was a lawful permanent resident, the district court asked,
    “Possibility of deportation then?” Martell responded, “Possibility.” J.A. 16. Second, the
    district court informed Appellant that he “may be deported” as a result of his plea. 
    Id. at 21
    (emphasis supplied). Appellant then confirmed that he understood that he “may be
    deported” as a result of his plea. 
    Id. (emphasis supplied).
    He also acknowledged that he
    reviewed and understood his plea agreement.
    After finding that Murillo was competent to enter his plea and that his plea was
    knowing, voluntary, and supported by facts, the district court accepted it. Appellant then
    pled guilty to an “aggravated felony” under the Immigration and Nationality Act. See 8
    U.S.C. § 1101(a)(43)(B) (defining “aggravated felony” as “illicit trafficking in a
    controlled substance (as defined in section 802 of Title 21), including a drug trafficking
    crime (as defined in section 924(c) of Title 18)”). Any noncitizen -- including a lawful
    permanent resident -- who pleads guilty to an “aggravated felony” is subject to
    mandatory deportation. See 
    id. § 1227(a)(2)(A)(iii)
    (“Any alien who is convicted of an
    aggravated felony at any time after admission is deportable.”); see also Lee v. United
    6
    States, 
    137 S. Ct. 1958
    , 1963 (2017) (noting that a lawful permanent resident who pled
    guilty to an “aggravated felony” was “subject to mandatory deportation”).
    Thereafter, on September 8, 2016, the district court sentenced Appellant to 24
    months in prison and three years of supervised release. Approximately six months later,
    while Appellant was incarcerated, he learned from an immigration officer that, upon
    completion of his sentence, he would be deported.
    On September 7, 2017, Appellant filed a motion under 28 U.S.C. § 2255 to vacate
    his conviction, asserting that his attorney had provided him constitutionally ineffective
    assistance of counsel. Appellant filed several affidavits in support of his motion. In his
    affidavit, Appellant stated that at no time did Martell inform him that he would be
    deported if he pled guilty. To the contrary, in her affidavit, Appellant’s fiancée stated
    that when she asked Martell if Appellant’s sentence of 24 months would affect his
    residency, Martell responded, “[N]o because [Appellant] had been a resident for over
    twenty years that would help him stay here.” J.A. 68. Similarly, Appellant’s fiancée’s
    mother stated in her affidavit that Martell asserted, “because [Appellant] had already
    been here for over twenty years, he would not be deported.” 
    Id. at 70.
    Likewise,
    Appellant’s mother stated in her affidavit that, when asked whether Appellant’s sentence
    would affect his residency in the United States, Martell assured her that “it would not.”
    
    Id. at 72.
    Notably, in his affidavit, Appellant explained the significance of Martell’s advice:
    If I had known that by pleading guilty I would be deported
    from this country, I would have asked for a jury trial and tried
    to win my case even if the chances of winning might be small
    7
    and I might get more prison time. At least I would have a
    chance, even if small. I would have also asked Ms. Martell to
    try to get a different plea bargain that would not get me
    deported. At least she could try! I had never been in trouble
    like this before.
    J.A. 65.
    On April 16, 2018, the district court ordered Martell to file a declaration
    responding to Appellant’s claims.       In her declaration, Martell acknowledged that
    Appellant “wanted to try and fight his immigration case” and that she advised him “that
    he would have to [do so] in immigration court,” and claimed that she advised Appellant
    to hire an immigration attorney. J.A. 98. 3 Martell also acknowledged that Appellant
    “expressed his desire to fight his immigration case” but stated that “[Appellant’s] focus
    was reducing prison time” and “there was no plea offer available to [Appellant] that
    could have avoided immigration consequences.” J.A. 98.
    On June 26, 2018, without holding an evidentiary hearing, the district court denied
    Appellant’s motion to vacate his conviction. Without addressing Martell’s performance,
    3
    Appellant disputes Martell’s claim that she advised him to hire an immigration
    attorney. In an affidavit responding to Martell’s declaration, Appellant’s mother averred,
    “At no time did Ms. Martell say to me or my family that we would need to hire an
    immigration attorney.” J.A. 168. Martell’s claim that she advised Appellant to consult
    and immigration attorney is also curious in light of the way Martell markets her services.
    Martell hosts a Spanish radio show on which she discusses “legal issues facing the Latino
    Community.” First Point Law Group, http://firstpointlawva.com/katherine-martell/ (last
    visited Apr. 15, 2019). Through that show, she has “helped hundreds of clients facing
    legal issues.” 
    Id. Indeed, Martell
    invites listeners with immigration issues to come to her
    office for a free consultation. Tu Abogada Latina, Tu Abogada Latina, Facebook (Apr.
    11, 2019), https://www.facebook.com/Tuabogadalatina/posts/muy-buenas-tardes-con-
    todos-felicidades-a-la-cumplea%C3%B1era-el-dia-de-hoy-la-doctor/5 28742127290372/.
    8
    the district court concluded that Appellant failed to present “any evidence that it would
    have been rational under the circumstances to reject the plea offer that did not subject to
    him a mandatory five-year sentence.” J.A. 183. In reaching that conclusion, the district
    court highlighted that Appellant “could not avoid the mandatory immigration
    consequences were he convicted of any of the charges brought against him” and that
    Appellant’s plea agreement indicated that Appellant “want[ed] to plead guilty regardless
    of any immigration consequences.” 
    Id. On July
    3, 2018, Appellant filed a Rule 59(e) motion for reconsideration. A week
    later, the district court denied that motion too. In doing so, the district court doubled
    down on its reasoning:
    Dispositive for the Court . . . is that [Appellant’s] contention -
    - that he would not have ple[d] guilty had he known the
    immigration consequences -- is fundamentally inconsistent
    with his acknowledgement in his Plea Agreement that
    “[Appellant] wants to plead guilty regardless of any
    immigration consequences that [Appellant]’s plea may entail,
    even if the consequences is the [Appellant]’s automatic
    removal from the United States.”               Because of this
    acknowledgement, the Court concluded that [Appellant] had
    failed to establish the prejudice prong of the Strickland [v.
    Washington, 
    466 U.S. 668
    (1984)] analysis. To have
    concluded otherwise would undermine plea negotiations and
    the finality of convictions because of future events that were
    foreseen and addressed at the time in a formal plea agreement
    based on whether a defendant really meant what he had
    agreed to in order to obtain a negotiated plea.
    J.A. 198–99 (citations omitted).
    Nevertheless, the district court granted Appellant a certificate of appealability
    “with respect to the application of 
    Lee[, 137 S. Ct. at 1958
    (finding a defendant can
    9
    demonstrate that his plea was caused by ineffective assistance of counsel by showing a
    reasonable probability that, by for his counsel’s errors, he would have gone to trial rather
    than accepting the plea)] to the facts of this case,” including whether certain language in
    Appellant’s plea agreement had “the dispositive effect” the district court attributed to it.
    Order, United States v. Murillo, No. 16-cr-00073 (E.D. Va. Mar. 24, 2016; filed July 11,
    2018), ECF No. 102. Appellant noted a timely appeal.
    II.
    We review a district court’s denial of a 28 U.S.C. § 2255 motion de novo. See
    United States v. Luck, 
    611 F.3d 183
    , 186 (4th Cir. 2010). In doing so, we resolve any
    factual ambiguities in the light most favorable to the movant. See United States v.
    Poindexter, 
    492 F.3d 263
    , 267 (4th Cir. 2007).
    III.
    The Sixth Amendment guarantees criminal defendants effective assistance of
    counsel.   See Strickland v. Washington, 
    466 U.S. 668
    , 685–86 (1984).             And that
    guarantee extends to the plea-bargaining process. See Missouri v. Frye, 
    566 U.S. 134
    ,
    140–44 (2012); see also Lafler v. Cooper, 
    566 U.S. 158
    , 162 (2012). To demonstrate that
    he was denied the effective assistance of counsel, Appellant must show that his counsel’s
    performance was deficient and that he was prejudiced as a result. 
    Strickland, 466 U.S. at 687
    .
    The district court held Appellant could not demonstrate that he was denied
    effective assistance of counsel.    Without addressing whether Appellant’s attorney’s
    performance was deficient, the district court concluded Appellant could not satisfy
    10
    Strickland’s prejudice prong because his plea agreement provided that he “want[ed] to
    plead guilty regardless of any immigration consequences” even if those consequences
    included “automatic removal from the United States.” J.A. 198–99 (emphasis supplied).
    We hold, however, that a single line from a plea agreement cannot bear the weight the
    Government would like. When the balance of the evidence is considered here, it is clear
    Appellant demonstrated a reasonable probability that, had he fully understood the
    immigration implications of his guilty plea, he would not have pled guilty. Because the
    district court did not consider whether Appellant’s attorney’s performance was deficient,
    we decline to address the issue. Instead, the district court should consider it on remand.
    In this regard, we are confident our current precedent sheds sufficient light on the
    appropriate standard. See United States v. Swaby, 
    855 F.3d 233
    , 240 (4th Cir. 2017)
    (“Effective representation by counsel requires that counsel provide correct advice when
    the deportation consequences are clear.”).
    A.
    To demonstrate prejudice, a criminal defendant must prove that there is a
    reasonable probability that, without his counsel’s deficient performance, the result of the
    proceeding in which the deficiency occurred would have been different. See 
    Strickland, 466 U.S. at 694
    . That requirement applies even when the constitutionally deficient
    performance affects the outcome of the plea process. See Hill v. Lockhart, 
    474 U.S. 52
    ,
    58–59 (1985).
    But in the context of a plea bargain, the defendant is the master of the outcome.
    And unlike a judge or a jury, the defendant has an incentive to claim, in retrospect, that
    11
    the result of the plea process would have been different regardless of whether that claim
    is, in fact, true. Cf. Lee v. United States, 
    137 S. Ct. 1958
    , 1967 (2017) (“Courts should
    not upset a plea solely because of post hoc assertions from a defendant about how he
    would have [pled] but for his attorneys’ deficiencies.”).      Thus, to prevent criminal
    defendants with bargainer’s remorse from simply claiming they would not have taken a
    deal but for a bit of bad advice, we require defendants asserting deficiencies in the plea-
    bargaining process to provide evidence of their sincerity. See 
    id. (“Judges should
    . . .
    look to contemporaneous evidence to substantiate a defendants’ expressed preferences.”).
    That is to say, when deficient performance causes a defendant to accept a plea bargain he
    might not have otherwise, the defendant must point to evidence that demonstrates a
    reasonable probability that, with an accurate understanding of the implications of
    pleading guilty, he would have rejected the deal.
    B.
    Here, we conclude that the district court erred by giving dispositive weight to
    limited language from Appellant’s plea agreement. The district court twice concluded
    (and the Government maintains) that Appellant could not (and according to the
    Government cannot) demonstrate prejudice because a single line in his plea agreement --
    that is, “[Appellant] wants to plead guilty regardless of any immigration consequences
    that defendant’s plea may entail, even if the consequence is the defendant’s automatic
    removal from the United States” -- undermines his assertion that he would not have pled
    guilty had he known he would be deported. J.A. 108. Instead of weighing evidence that
    Appellant would have rejected the plea agreement had he known it carried a consequence
    12
    of mandatory deportation against the evidence that Appellant would have accepted it
    nonetheless, the district court found that single line “dispositive.” 
    Id. at 198.
    We
    disagree.
    Giving dispositive weight to boilerplate language from a plea agreement is at odds
    with Strickland’s fact-dependent prejudice analysis. To determine whether a defendant
    was prejudiced by an attorney error, Strickland requires courts to undertake an
    individualized examination of the proceedings in which the error is alleged.            See
    
    Strickland, 466 U.S. at 691
    –96; cf. 
    id. at 693
    (“[Attorney errors] cannot be classified
    according to likelihood of causing prejudice.”). The prejudice analysis in the context of
    the plea-bargaining process requires a fact-based evaluation of the weight of the
    evidence. See, e.g., Premo v. Moore, 
    562 U.S. 115
    , 129–130 (2011) (rejecting a “per se
    rule of prejudice”). Accordingly, a categorical rule affording dispositive weight to a prior
    statement is “ill suited to an inquiry that . . . demands a ‘case-by-case analysis.’” 
    Lee, 137 S. Ct. at 1966
    (quoting Williams v. Taylor, 
    529 U.S. 362
    , 391 (2000)). In Lee, the
    Supreme Court rejected the Government’s invitation to find that a defendant with no
    viable defense can never show prejudice resulting from the denial of his right to trial. See
    
    id. There is
    no reason to believe the Supreme Court would be more willing to find that a
    defendant who affirmed, by means of boilerplate plea agreement language, that he would
    have pled guilty regardless of any immigration consequences can never demonstrate that
    he would have rejected the deal but for his counsel’s ineffective assistance.
    Indeed, the weight the district court accorded Appellant’s plea agreement cannot
    be squared with this court’s decision in Swaby. Swaby’s plea agreement included nearly
    13
    identical language to that at play here: “[C]onviction for a broad range of crimes can lead
    to adverse immigration consequences, including automatic removal from the United
    States . . . . Defendant understands that no one, including his attorney or the Court, can
    predict with certainty the effect of a conviction on immigration status.        Defendant
    nevertheless affirms that he wants to plead guilty regardless of any potential immigration
    consequences.” See 
    Swaby, 855 F.3d at 237
    (alterations in original). Nonetheless, this
    court found that Swaby demonstrated prejudice.          Rather than simply consider the
    boilerplate language included in Swaby’s plea agreement dispositive, we weighed that
    language against Swaby’s connections to this country. See 
    id. at 243.
    After doing so, we
    concluded it was not only “reasonably likely” but also “unsurprising” that Swaby, had he
    known the true consequences of his guilty plea, “would have taken any chance, no matter
    how slim, to avoid deportation.” 
    Id. at 244
    (emphasis in original). 4
    4
    Views may diverge among the circuit courts as to the weight to accord to these
    plea provisions. Although the Third Circuit has found a provision that indicates that a
    defendant “was willing to plead guilty even if that plea would lead to automatic
    deportation” to destroy a defendant’s assertion of prejudice, at least when the defendant
    repeats the same intention to the district court in his plea colloquy, see United States v.
    Fazio, 
    795 F.3d 421
    , 427 (3d Cir. 2015), the Ninth Circuit gives such provisions “little
    weight,” allowing defendants to demonstrate prejudice notwithstanding a plea agreement
    provision nearly identical to Appellant’s, see United States v. Rodriguez-Vega, 
    797 F.3d 781
    , 785, 789–90, 790 n.9 (9th Cir. 2015). And like the Ninth Circuit, the Eighth Circuit
    recently found a defendant’s affirmations, made in his plea agreement and at his plea
    hearing, that he understood his plea “could affect” his immigration status did not
    conclusively indicate that the defendant would not have pled guilty but for his counsel’s
    incorrect immigration advice. See Dat v. United States, -- F.3d --, 
    2019 WL 1562570
    , at
    *3 (8th Cir. Apr. 11, 2019).
    14
    To be sure, language from plea agreements and statements made during plea
    hearings are not irrelevant. See United States v. Lemaster, 
    403 F.3d 216
    , 221–22 (4th
    Cir. 2005) (“[I]n the absence of extraordinary circumstances, the truth of sworn
    statements made during a Rule 11 colloquy is conclusively established, and a district
    court should, without holding an evidentiary hearing, dismiss any § 2255 motion that
    necessarily relies on allegations that contradict the sworn statements.”).      But plea
    agreement language and sworn statements must be considered in their context: When a
    defendant has been told -- multiple times -- that immigration consequences are not
    mandated but merely a “possibility,” a willingness “to plead guilty regardless of any
    immigration consequences” does not mean that the defendant was willing to plead guilty
    if doing so meant mandatory deportation. Cf. United States v. Rodriguez-Vega, 
    797 F.3d 781
    , 790 n.9 (9th Cir. 2015) (“[T]he effectiveness of th[e] written warning was
    substantially diminished by the context in which it was given, i.e. the oral statements by
    [the defendant’s] counsel and the court that [the defendant] faced only a possibility of
    removal.”). The mere utterance and existence of such statements and language -- without
    context -- cannot conclusively determine that a defendant would have pled guilty
    regardless of the immigration consequences of doing so.
    C.
    The question that remains, then, is whether, considering the weight of the
    evidence, Appellant satisfied his burden to demonstrate a reasonable probability that,
    without his counsel’s deficient performance, he would not have pled guilty. To do so,
    Appellant need not demonstrate that rejecting the plea agreement was “the best objective
    15
    strategy or even an attractive option.”      
    Swaby, 855 F.3d at 244
    .        He need only
    demonstrate that, from the perspective of a reasonable person in his position, rejecting the
    plea agreement would have been “rational.” 
    Id. Often, “deportation
    is an integral --
    indeed, sometimes the most important part -- of the penalty that may be imposed on
    noncitizen defendants who plead guilty.” Padilla v. Kentucky, 
    559 U.S. 356
    , 364 (2010).
    To be sure, “preserving [a] client’s right to remain in the United States may be more
    important to the client than any potential jail sentence.” 
    Id. at 368.
    Accordingly, to
    determine whether a particular defendant would have rejected a plea deal, we look to
    evidence regarding what is important to the defendant asserting the ineffective assistance
    claim. See, e.g., 
    Swaby, 855 F.3d at 244
    .
    The record here leaves little doubt that avoiding deportation was Appellant’s main
    priority. Appellant retained Martell because he believed she had immigration experience:
    Indeed, Martell held herself out as being uniquely experienced in matters of immigration.
    Appellant told Martell that he was determined to fight deportation:                 Martell
    acknowledged that she and Appellant discussed immigration extensively, that Appellant
    “expressed his desire to fight his immigration case,” and that she informed Appellant that
    he had to “fight his case” in immigration court. J.A. 98. Appellant also endeavored to
    retain his immigration-related rights: Drafts of the plea agreement demonstrate that
    Appellant and Martell were focused on immigration consequences during the negotiation
    process. Toward that end, Martell wrote herself a note to “[a]sk to omit immigration
    waivers” and negotiated to omit sections such as “Consent Given for Removal from the
    United States” and “Waiver of Rights Related to Removal from the United States.” 
    Id. at 16
    108–109. Had Appellant truly intended to plead guilty to an offense even if it triggered
    mandatory deportation, he would have had little reason to pursue these negotiations.
    Moreover, Appellant’s mother, fiancée, and fiancée’s mother asked Martell about
    the immigration consequences of his conviction and sentence. When Appellant’s fiancée
    asked Martell if Appellant’s sentence of 24 months would affect his residency, Martell
    responded, “[N]o because [Appellant] had been a resident for over twenty years that
    would help him stay here.” J.A. 68. Consistent with this statement, Appellant’s fiancée’s
    mother averred that Martell said, “because [Appellant] had already been here for over
    twenty years, he would not be deported.” 
    Id. at 70.
    Most significantly, Appellant has lived in the United States since he was seven
    years old. His family and his life are here in the United States. And according to
    Appellant, “[i]f [he] had known that by pleading guilty [he] would be deported from this
    country, [he] would have asked for a jury trial and tried to win [his] case even if the
    chances of winning might be small and [he] might get more prison time.” J.A. 65.
    Appellant’s affirmations that he understood that he might be deported do not
    outweigh the evidence that avoiding deportation was more important to Appellant than
    any jail sentence. The district court understood the sentence “defendant wants to plead
    guilty regardless of any immigration consequences that defendant’s plea may entail, even
    if the consequence is the defendant’s automatic removal from the United States,” to
    directly contradict Appellant’s position that, had he known his plea carried a mandatory-
    deportation consequence, he would not have taken it. J.A. 199. But the sentence is not
    that definitive. The sentence includes the equivocal phrases “may entail” and “even if.”
    17
    Moreover, the line before this sentence underscores the qualifying language: “[t]he
    defendant recognizes that pleading guilty may have consequences with respect to
    defendant’s immigration status if defendant is not a citizen of the United States.” Supp.
    J.A. Vol. I at 10 (emphasis added).      These statements simply do not suggest that
    mandatory deportation would not have changed Appellant’s mind. This is even more
    clear when considered in conjunction with the advice Appellant was receiving. Of course
    Appellant was willing to sign a plea agreement that said he “wants to plead guilty
    regardless of any immigration consequences” when he had been told -- multiple times --
    that immigration consequences were merely a “possibility.”
    Nor, for that matter, did the district court’s general warning cure any ineffective
    assistance. Although a district court can, by accurately informing a defendant of the
    immigration consequences of his plea, cure an attorney’s incorrect advice, see, e.g.,
    United States v. Hernandez-Monreal, 404 F. App’x 714, 715 (4th Cir. 2011), “general
    and equivocal” warnings do not suffice, United States v. Akinsade, 
    686 F.3d 248
    , 240
    (4th Cir. 2012). In Akinsade, the district court warned the defendant that, because his
    guilty plea, he “may be deported.” 
    Id. at 250.
    We found that warning to be “insufficient
    to correct counsel’s affirmative misadvice” that the defendant’s crime “was not
    categorically a deportable offense.” 
    Id. at 254.
    We noted that, although the warning
    “touch[ed] upon the consequence of deportation,” it did not “correct the particular
    misadvice given by counsel.” 
    Id. at 255.
    Here, as in Akinsade, the district court’s
    warning that Appellant “may be deported” was insufficient to cure Martell’s misadvice
    that his crime was not a categorically deportable offense. The district court’s warning,
    18
    like the warning at issue in Akinsade, was “general and equivocal.” 
    Id. at 240;
    see also
    Dat, 
    2019 WL 1562570
    , at *3 (finding a presentence report that noted the defendant
    would be subject to “Administrative Removal” was insufficient to remedy his attorney’s
    misadvice that he would not be deported). Moreover, it came moments after Martell
    stated on the record that Appellant faced merely a “[p]ossibility” of deportation. J.A. 16.
    The balance of evidence here weighs in favor of Appellant. Appellant prioritized
    immigration in the plea negotiation process and had a significant reason to do so:
    avoiding mandatory separation from his family and his home. The qualified statements
    from Appellant’s plea agreement and equivocal affirmations at his plea hearing do not
    outweigh the evidence that Appellant’s main priority was remaining in this country with
    his family. Accordingly, we find the evidence demonstrates a reasonable probability that,
    had Appellant known the true and certain extent of the consequences of his guilty plea, he
    would have refused it.
    IV.
    We reverse the district court’s judgment and remand to the district court for
    further proceedings consistent with this opinion.
    REVERSED AND REMANDED
    19
    KING, Circuit Judge, dissenting:
    Appellant Sergio Carrillo Murillo confirmed to the district court in June 2016 that
    he wanted to plead guilty to a drug conspiracy charge, even if the guilty plea resulted in
    his “automatic removal” (i.e., his deportation) from the United States. See Supp. J.A.
    Vol. I 11. When faced with that very consequence, however, Carrillo had a change of
    heart and sought to vacate his conspiracy conviction. 1             Carrillo initiated these
    postconviction proceedings in late 2017, by a 28 U.S.C. § 2255 motion, maintaining that
    he did not mean what he said to the court in his plea proceedings, and that his then-
    lawyer was constitutionally deficient. That is, Carrillo now contends that — when he
    pleaded guilty to a drug conspiracy offense — he did not know that his plea could result
    in his removal from this country. He thus argues that his Sixth Amendment rights were
    contravened.
    In my view, the district court properly rejected Carrillo’s § 2255 motion, and
    correctly ruled that Carrillo could not prove his Sixth Amendment claim by assertions
    that directly conflict with his plea agreement and his guilty plea colloquy. Because the
    majority has endorsed Carrillo’s effort to undermine his plea proceedings, I respectfully
    dissent.
    1
    I prefer to refer to the appellant as “Carrillo,” in that he refers to himself by that
    name in these proceedings.
    I.
    A.
    After driving across the country to purchase a kilogram of cocaine in California
    and then transport his load of contraband to Virginia, Carrillo was caught red-handed by
    the federal authorities as he was selling the cocaine for $40,000 to an informant in the
    Eastern District of Virginia. 2 As a result of this drug trafficking, Carrillo was indicted for
    two federal offenses and faced up to eighty years in prison. In exchange for the dismissal
    of one of the charges — and to avoid the near certainty of a five-year mandatory
    minimum sentence for his illegal activities — Carrillo agreed to plead guilty to a single
    drug conspiracy offense that obviated the mandatory minimum sentence. He therefore
    entered into a written plea agreement with the United States Attorney. As pertinent here,
    Paragraph 19 of the plea agreement provides:
    [Carrillo] recognizes that pleading guilty may have consequences with
    respect to [his] immigration status if [he] is not a citizen of the United
    States. Under federal law, a broad range of crimes are removable offenses,
    including the offenses to which [Carrillo] is pleading guilty. Because
    removal and other immigration consequences are the subjects of a separate
    proceeding, [Carrillo] understands that no one, including [his] attorney or
    the District Court, can predict to a certainty the effect of [this] conviction
    on [his] immigration status. [Carrillo] nevertheless affirms that [he] wants
    to plead guilty regardless of any immigration consequences that [his] plea
    may entail, even if the consequence is [his] automatic removal from the
    United States.
    2
    According to Carrillo’s presentence report, the kilogram of cocaine that Carrillo
    was selling in Virginia originated from the so-called Sinaloa Cartel in Mexico and its
    former notorious leader, Joaquín “El Chapo” Guzmán.
    21
    See Supp. J.A. Vol. I 10-11 (emphasis added). Carrillo and his lawyer each signed the
    plea agreement, acknowledging and attesting thereby:        (1) that they had “carefully
    reviewed” the entire plea agreement together, and (2) that Carrillo understood and
    voluntarily agreed to its terms. 
    Id. at 14.
    During the guilty plea proceedings conducted in Alexandria on June 21, 2016, the
    district court placed Carrillo under oath. Carrillo then advised the court that he had
    reviewed the plea agreement and understood it. He also asserted that he was satisfied
    with his lawyer’s representation. Importantly, Carrillo affirmed to the court that he
    wanted to plead guilty, notwithstanding that he “may be deported as a result of [his
    guilty] plea.” See J.A. 21. After finding that Carrillo was competent to plead guilty and
    that his plea was knowing, voluntary, and supported by a sufficient factual basis, the
    court accepted the guilty plea and the plea agreement. And Carrillo received significant
    benefits from his plea bargain: he was sentenced to only 24 months in prison on the
    single conviction.
    B.
    About two months shy of his scheduled release date, Carrillo moved in September
    2017 to vacate his conspiracy conviction and sentence, alleging ineffective assistance of
    counsel in the plea proceedings. In his § 2255 motion, Carrillo alleges that he only
    learned several months earlier that he would be deported as a result of his conspiracy
    conviction. He faults his lawyer for failing to advise him that he could be deported as a
    result of his guilty plea. Contrary to his statements in the plea agreement and at the plea
    hearing, Carrillo contends in his § 2255 papers that he did not know when he pleaded
    22
    guilty that a possible consequence of his plea was removal from this country. He also
    asserts that — if his lawyer had advised him of that consequence — he would not have
    pleaded guilty.
    By its order of June 26, 2018, the district court rejected Carrillo’s ineffective
    assistance claim, concluding that he had not shown prejudice from the alleged deficient
    performance of his lawyer. That is, the court assumed that the lawyer had erred but was
    satisfied that Carrillo had failed to show “a reasonable probability that, but for counsel’s
    error, he would not have pleaded guilty and would have insisted on going to trial.” See
    J.A. 181-82 (internal quotation marks omitted). In so ruling, the court emphasized that
    Carrillo had explicitly agreed — quoting from Paragraph 19 — that he wanted “to plead
    guilty . . . even if the consequence is [his] automatic removal from the United States.” 
    Id. at 183.
    II.
    A.
    I begin with a significant issue that neither the district court nor the panel majority
    has resolved: whether Carrillo’s lawyer performed in a constitutionally deficient manner.
    Unlike the district court and my good friends in the majority, I would not and do not
    assume deficient performance by Carrillo’s lawyer. To the contrary, I would conclude —
    without a hearing on Carrillo’s 28 U.S.C. § 2255 motion — that Carrillo has failed to
    show that his lawyer’s advice was professionally unreasonable.               See Strickland v.
    Washington, 
    466 U.S. 668
    , 687-88 (1984). Indeed, Carrillo affirmed — under oath — in
    23
    his guilty plea colloquy that he was pleased with his lawyer’s services. And he had good
    reason to say so — his lawyer negotiated an extraordinary bargain on his behalf. More
    importantly, there is simply no dispute that Carrillo’s lawyer informed him that his guilty
    plea would make him removable from the United States. See Padilla v. Kentucky, 
    559 U.S. 356
    , 374 (2010) (holding that “counsel must inform her [criminal defendant] client
    whether his plea carries a risk of deportation”).       And Carrillo confirmed that he
    understood as much at his guilty plea hearing when he made the solemn declarations that
    he comprehended the plea agreement and the immigration consequences of his guilty
    plea. See United States v. Lemaster, 
    403 F.3d 216
    , 221 (4th Cir. 2005) (emphasizing
    binding nature of statements made during plea colloquy). I am thus satisfied that the
    performance of Carrillo’s lawyer was not constitutionally deficient, and I would affirm
    the denial of Carrillo’s § 2255 motion on that basis.
    B.
    Additionally, I would affirm the denial of § 2255 relief because Carrillo failed to
    show prejudice from the alleged deficient performance of his lawyer.          That is, our
    controlling decision in United States v. Lemaster, 
    403 F.3d 216
    (4th Cir. 2005), obliges
    us to summarily dispose of Carrillo’s postconviction assertions that directly conflict with
    his sworn statements during his Rule 11 colloquy. Relatedly, the Supreme Court’s
    decision in Lee v. United States, 
    137 S. Ct. 1958
    , 1967 (2017), instructs that we must
    disregard Carrillo’s post hoc assertions and instead look to “contemporaneous evidence”
    of his “expressed preferences” concerning his guilty plea. And that contemporaneous
    evidence proves that Carrillo wanted to plead guilty regardless of any immigration
    24
    consequences, including removal. Moreover, the panel majority’s reliance on our more
    recent decision in United States v. Swaby, 
    855 F.3d 233
    (4th Cir. 2017), is unconvincing.
    That is, Swaby failed to even mention our earlier Lemaster decision, and — insofar as
    those decisions conflict — we are obliged to follow Lemaster.
    1.
    The Supreme Court has long recognized that a criminal defendant’s “[s]olemn
    declarations in open court [during a plea hearing] carry a strong presumption of verity.”
    See Blackledge v. Allison, 
    431 U.S. 63
    , 74 (1977). And we have consistently emphasized
    that important principle when a criminal defendant seeks to attack his guilty plea under
    § 2255. See, e.g., 
    Lemaster, 403 F.3d at 221
    ; United States v. White, 
    366 F.3d 291
    , 295-
    96 (4th Cir. 2004). Crucially, in our 2005 decision in Lemaster, our former colleague
    Judge Williams recognized that “courts must be able to rely on [a] defendant’s statements
    made under oath during a properly conducted . . . plea colloquy.” 
    See 403 F.3d at 221
    .
    The Lemaster panel thus ruled that “in the absence of extraordinary circumstances,
    allegations in a § 2255 motion that directly contradict the [defendant’s] sworn statements
    made during a properly conducted Rule 11 colloquy are always palpably incredible and
    patently frivolous or false.” 
    Id. (citations and
    internal quotation marks omitted); see also
    
    White, 366 F.3d at 297
    (“[A] court can summarily dismiss allegations of a [defendant]
    who attempts to challenge statements made during his plea colloquy or in his plea
    agreement . . . .”).
    Pursuant to our Lemaster decision, the allegations made by Carrillo in these
    § 2255 proceedings that contradict his sworn statements during his Rule 11 colloquy are
    25
    “palpably incredible and patently frivolous or false.”     
    See 403 F.3d at 221
    . 3    That
    proposition covers Carrillo’s newly minted assertion that he did not know about the
    potential deportation consequences of his guilty plea.     That assertion conflicts with
    Carrillo’s prior sworn statements that: (1) he had reviewed the plea agreement and
    understood it (including Paragraph 19); and (2) he wanted to plead guilty even though he
    “may be deported as a result of [that] plea.” See J.A. 21. Because Carrillo’s prejudice
    contention rests almost exclusively on a postconviction assertion that is “palpably
    incredible and patently frivolous or false,” I would affirm the district court’s denial of
    § 2255 relief. See 
    Lemaster, 403 F.3d at 221
    .
    My friends in the majority, however, do not accept the binding nature of our
    Lemaster decision. They suggest that Lemaster merely stands for the proposition that
    sworn statements during a Rule 11 colloquy are simply “not irrelevant” to the prejudice
    analysis.   See ante 15.   Lemaster makes it clear, however, that we should afford
    controlling weight to such solemn statements. 
    See 403 F.3d at 221
    ; see also 
    White, 366 F.3d at 295-96
    . Rather than reject Lemaster’s command, I would adhere to its directive
    — as we are obliged to do. See United States v. Jones, 
    914 F.3d 893
    , 899 n.6 (4th Cir.
    3
    Our Lemaster decision recognizes an exception for “extraordinary
    circumstances,” which could exist where: (1) the defendant’s lawyer admits ineffective
    representation and the government concedes that the guilty plea was involuntary; or
    (2) the defendant is “severely ill, both physically and mentally, and uncounseled at the
    time of his Rule 11 colloquy.” 
    See 403 F.3d at 221
    . Neither of those circumstances are
    present in this case.
    26
    2019) (explaining that “one panel of this Court is not entitled to overrule another panel”
    (internal quotation marks omitted)).
    2.
    Twelve years after our Lemaster decision, the Supreme Court, in Lee v. United
    States, 
    137 S. Ct. 1958
    (2017), reconfirmed the significance of a defendant’s statements
    during guilty plea proceedings. As the Chief Justice explained therein, “[c]ourts should
    not upset a [guilty] plea solely because of post hoc assertions from a defendant about how
    he would have pleaded but for his attorney’s deficiencies.” 
    Id. at 1967.
    Instead, as the
    Court emphasized, “[j]udges should . . . look to contemporaneous evidence to
    substantiate a defendant’s expressed preferences” in relation to a guilty plea. 
    Id. Carrillo’s attestations
    in Paragraph 19 of the plea agreement and during the guilty
    plea colloquy are the best “contemporaneous evidence” of his “expressed preferences”
    regarding his guilty plea.     See 
    Lee, 137 S. Ct. at 1967
    ; see also 
    id. at 1967-68
    (emphasizing defendant’s assertion during plea colloquy that immigration consequences
    impacted his decision to plead guilty). This contemporaneous evidence proves beyond
    peradventure that Carrillo wanted to plead guilty, even if the plea and conviction resulted
    in his “automatic removal” from this country. See Supp. J.A. Vol. I 11. The majority,
    however, abandons that evidence and instead relies on Carrillo’s post hoc assertions —
    the precise type of evidence that the Supreme Court warned us about and rejected in Lee.
    Contrary to Lee (and our Lemaster precedent), the majority primarily predicates its ruling
    on the postconviction statements of Carrillo and his supporters. See ante 17. But those
    post hoc assertions directly conflict with the “contemporaneous evidence” of Carrillo’s
    27
    “expressed preferences” to plead guilty regardless of any immigration consequences,
    including removal. See 
    Lee, 137 S. Ct. at 1967
    . Consequently, Carrillo’s post hoc
    evidence has no role to play in the analysis of his ineffective assistance claim.
    3.
    Finally, I disagree with the proposition that our more recent decision in United
    States v. Swaby, 
    855 F.3d 233
    (4th Cir. 2017), authorizes us to disregard Paragraph 19,
    which explicitly provides that Carrillo wanted “to plead guilty regardless of any
    immigration consequences that [his] plea may entail, even if the consequence is [his]
    automatic removal from the United States.” See Supp. J.A. Vol. I 11; see also ante 13-
    14. Although my good colleagues observe that the Swaby plea agreement contained a
    provision similar to Paragraph 19, they fail to recognize that the Swaby analysis did not
    acknowledge that provision. See 
    Swaby, 855 F.3d at 240-44
    .             Accordingly, Swaby
    provides no guidance concerning the importance of Paragraph 19 to the proper
    assessment of this case. 4
    Of additional importance, Swaby did not mention Lemaster.             It also did not
    recognize or address the principle that a criminal defendant is generally precluded from
    attacking a guilty plea through a postconviction assertion that contradicts his statements
    4
    My friends in the panel majority also relegate Paragraph 19 to the dustbin
    because, according to their opinion, that provision is “boilerplate [plea agreement]
    language.” See ante 13, 14. The majority thus suggests that a plea agreement provision
    that shows up frequently can simply be disregarded in postconviction proceedings. If
    there is decisional authority to support such a proposition, I have found none. I would
    speculate, however, that Paragraph 19 resulted from the Supreme Court’s Padilla
    decision.
    28
    to the court in his plea colloquy. See 
    Lemaster, 403 F.3d at 221
    . And if Swaby and
    Lemaster conflict in that respect, Lemaster must control our analysis. See McMellon v.
    United States, 
    387 F.3d 329
    , 333 (4th Cir. 2004) (en banc) (“When published panel
    opinions are in direct conflict on a given issue, the earliest opinion controls, unless the
    prior opinion has been overruled by an intervening opinion from this court sitting en banc
    or the Supreme Court.”). Again, Lemaster requires us to disregard Carrillo’s § 2255
    postconviction assertions attacking his solemn statements to the district court in his guilty
    plea proceedings. As a result, it is clear to me that Carrillo’s § 2255 motion was
    appropriately rejected.
    For these reasons, I would affirm the district court. Because my good colleagues
    rule otherwise, I respectfully dissent.
    29