United States v. Sergio Murillo (4th Cir. June 2019)

United States v. Sergio Murillo, No. 18-6844 (4th Cir. June 25, 2019)

Section 2255/Ineffective Assistance of Counsel – Counsel was ineffective when he failed to inform the defendant that deportation was mandatory, as opposed to possible, and the defendant’s clear priority was preserving any right to contest deportation.

The Court held that Sergio Murillo received ineffective assistance of counsel and granted his motion to vacate his sentence pursuant to 28 U.S.C. § 2255. Relevantly, Murillo was a lawful permanent resident with no family left in Mexico, and he was engaged to an American citizen. His priority throughout the criminal proceedings was to avoid deportation, and he retained an attorney based on her advertisements that referenced her knowledge of immigration law.

Based on his attorney’s advice that he could plead guilty to a charge that made deportation a possibility rather than mandatory, Murillo pleaded guilty to conspiracy to distribute cocaine, which also allowed him to avoid the mandatory minimum sentence for substantive distribution. The Government agreed to remove certain binding language from the plea agreement that would have facilitated Murillo’s deportation in subsequent immigration proceedings, though it also stated that Murillo wanted to plead notwithstanding any immigration consequences. At all times, however, Murillo was advised by his counsel that deportation was a mere “possibility” and he could try to fight it after his conviction.

In reality, Murillo pleaded guilty to an offense that requires mandatory deportation. Without addressing Murillo’s counsel’s alleged ineffectiveness, the district court denied his motion, holding that there would have been no prejudice because, by entering the plea agreement as written, Murillo chose to plead “regardless of any immigration consequences.”

The Fourth Circuit reversed, holding that a “single line from a plea agreement cannot bear the weight the Government would like,” and that Murillo had established a “reasonable probability” that he would not have pleaded guilty if he had fully understood the immigration implications of his plea. The Court also warned that “giving dispositive weight to boilerplate language from a plea agreement” was at odds with Strickland’s fact-dependent analysis, and that the language in the plea agreement needed to be weighed against Murillo’s other evidence. Under the circumstances, Murillo’s main priority was clearly avoiding mandatory deportation, and the Court remanded for the district court to consider counsel’s ineffectiveness.

Judge King dissented, arguing that the language in the plea agreement that Murillo wanted to plead guilty regardless of immigration consequences should be binding on him at this stage. Judge King also credited Murillo’s acknowledgment at his change of plea hearing that he “may face deportation.”

Appeal from the Eastern District of Virginia

Opinion by Thacker, joined by Motz

Dissent by King

Click to read the opinion.


Tom Church

Tom is a trial and appellate lawyer focusing on criminal defense and civil trials. Tom is the author of "The Federal Docket" and is a contributor to Mercer Law Review's Annual Survey in the areas of federal sentencing guidelines and criminal law. Tom graduated with honors from the University of Georgia Law School where he served as a research assistant to the faculty in the areas of constitutional law and civil rights litigation. Read Tom's reviews on AVVO. Follow Tom on Linkedin.

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