Martin v. United States

• Decision Date: 04 February 2020
• Docket Number: No. 18-12643,18-12643
• Citation: 949 F.3d 662
• Parties: Nigel Christopher Paul MARTIN, Petitioner - Appellant, v. UNITED STATES of America, Respondent - Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

949 F.3d 662

Nigel Christopher Paul MARTIN, Petitioner - Appellant,

v.UNITED STATES of America, Respondent - Appellee.

No. 18-12643

United States Court of Appeals, Eleventh Circuit.

February 4, 2020

Matthew Raul McLain, McLain Law, PA, LONGWOOD, FL, Gawane Grant, Law Office of Gawane Grant, LAUDERHILL, FL, for Petitioner - Appellant.

Robert Benjamin Cornell, Phillip Drew DiRosa, U.S. Attorney's Office, FORT LAUDERDALE, FL, Kathryn Dalzell, Assistant U.S. Attorney, U.S. Attorney's Office, MIAMI, FL, Brandy Brentari Galler, U.S. Attorney's Office, WEST PALM BEACH, FL, Emily M. Smachetti, U.S. Attorney Service - Southern District of Florida, U.S. Attorney Service - SFL, MIAMI, FL, for Respondent - Appellee.

Before ROSENBAUM and TJOFLAT, Circuit Judges, and PAULEY,^* District Judge.

PAULEY, District Judge:

Nigel Christopher Paul Martin, a citizen of Jamaica, appeals from the district court’s denial of his habeas petition. On appeal, Martin argues that the district court abused its discretion in denying his claim without holding an evidentiary hearing. Specifically, Martin claims that he would not have pled guilty to access device fraud and aggravated identity theft but for his counsel’s erroneous advice concerning the deportation consequences of his plea. We affirm the ruling of the district court.

I. FACTUAL BACKGROUND

In December 2016, a federal grand jury charged Martin with conspiracy to commit access device fraud, 18 U.S.C. § 1029(b)(2) ("Count One"), access device fraud, 18 U.S.C. § 1029(a)(2) ("Count Two"), and aggravated identity theft, 18 U.S.C. § 1028A(a)(1) ("Count Nine"). The superseding indictment alleged that Martin and his co-defendants were involved in a scheme to make unauthorized credit card purchases at retail stores using credit card accounts issued to other individuals.

Martin pled guilty to Counts Two and Nine pursuant to a plea agreement. As relevant here, that plea agreement included a provision explaining the potential immigration consequences of the plea. Martin acknowledged that "[r]emoval and other immigration consequences are the subject of a separate proceeding" and that "no one, including the defendant’s attorney or the Court, can predict to a certainty the effect of the defendant’s conviction on the defendant’s immigration status." Martin also affirmed in the plea agreement that he wished to plead guilty "regardless of any immigration consequences," including "automatic removal from the United States."

During his allocution, the district court asked Martin whether he fully discussed the charges with his attorney, whether he was satisfied with his attorney’s representation of him, and whether he had read and understood the plea agreement. Martin answered each inquiry in the affirmative. Three times he confirmed that no one made any promises or assurances of any kind, other than what was set forth in the plea agreement. The district court then asked Martin about his understanding of the immigration consequences of his plea:

THE COURT: Have you and [your attorney] discussed the immigration consequences of your guilty plea?

THE DEFENDANT: Yes, Your Honor.

THE COURT: And you understand, sir, that if you are not a citizen of the United States, in addition to the other possible penalties you are facing, a plea of guilty may subject you to deportation, exclusion, or voluntary departure and prevent you from obtaining United States citizenship?

THE DEFENDANT: Yes, Your Honor.

At the time he executed the plea agreement and pled guilty, Martin also signed a factual proffer. That proffer summarized facts the government would have proven beyond a reasonable doubt had the case gone to trial. Specifically, on March 21, 2016, Martin made an unauthorized purchase of $782 from Home Depot using a Capital One credit card. On March 29, 2016, Martin completed an unauthorized telephone payment transaction for $369.94 from Home Depot. And on April 18, 2016, Martin assisted co-defendants in loading fraudulently purchased items into a vehicle. The proffer also asserted that the fraud loss resulting from the overall scheme was in excess of $200,000. During his allocution, Martin confirmed that the proffer was correct.

The Pre-Sentence Investigation Report ("PSR") calculated Martin’s total offense level for access device fraud to be 13. The 10-level enhancement for a loss of more than $150,000 but less than $250,000 pursuant to U.S.S.G. § 2B1.1(b)(1)(F) was based on a finding that the aggregate loss attributable to all of the co-conspirators was "approximately $200,000" in a scheme running from November 2015 to August 2016.

Martin’s counsel objected to the loss amount calculation and the 10-level enhancement. He argued that Martin was only responsible for approximately $1,000 because he did not plead guilty to the conspiracy charge.

At sentencing, the government contended that the PSR properly calculated the fraud loss amount at approximately $200,000 because Martin was jointly and severally liable as an aider and abettor. The district court agreed with the government, overruled Martin’s objection, and determined that Martin’s guideline range was 12 to 18 months’ imprisonment on the access device fraud charge, followed by a mandatory consecutive term of 24 months’ imprisonment on the aggravated identity theft charge. Accordingly, Martin’s exposure under the Sentencing Guidelines was 36 to 42 months’ imprisonment.

The government moved for a downward departure under U.S.S.G. § 5K1.1 because of Martin’s substantial assistance. The government also argued that Martin was "the least culpable" in the scheme. The district court granted a downward departure and sentenced Martin principally to 12 months’ imprisonment on each count to be served concurrently. The district court deferred fixing the amount of restitution pending a "final determination of the victims’ losses." Later, the district court issued an amended judgment of conviction, ordering restitution in the amount of $153,419.13 joint and several with Martin’s co-defendants.

In January 2018, Martin moved to vacate his sentence under 28 U.S.C. § 2255. He alleged that his attorney provided ineffective assistance of counsel because he (1) failed to advise Martin that deportation was mandatory for an aggravated felony conviction, (2) advised him that the loss amount would be less than $10,000, and (3) assured him that his sentence would be less than one year of imprisonment. Martin now claims that he would not have pled guilty had he known that he would be subject to mandatory deportation.

The district court denied Martin’s habeas petition without holding an evidentiary hearing. The district court found that Martin’s claims of deficient performance were contradicted by his "statements under oath at the plea colloquy." Further, the district court noted, "even assuming, without deciding," that erroneous representations were made to Martin, he could not establish prejudice. By signing the plea agreement and confirming his statements under oath during the allocution, Martin "understood that his guilty plea could subject him to immigration consequences, including removal, and that no one, including his attorney, could predict exactly the loss amount or the sentence to be imposed at the time of the plea."

We granted a certificate of appeal on the issue of whether the district court abused its discretion in denying—without an evidentiary hearing—Martin’s claim that, but for his counsel’s erroneous advice concerning the deportation consequences of his guilty plea, he would not have pled guilty.

II. DISCUSSION

A. Ineffective Assistance of Counsel

We review legal conclusions de novo and factual findings for clear error in a § 2255 proceeding. Osley v. United States , 751 F.3d 1214, 1222 (11th Cir. 2014). A claim of ineffective assistance of counsel is a mixed question of law and fact reviewed de novo . Id. We can affirm on any basis supported by the record, regardless of whether the district court decided the case on that basis. Lucas v. W.W. Grainger, Inc. , 257 F.3d 1249, 1256 (11th Cir. 2001).

To prevail on an ineffective assistance of counsel claim, a petitioner must show (1) his counsel’s performance was deficient and (2) the deficient performance prejudiced his defense. Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). For deficient performance, a petitioner must demonstrate that his counsel’s representation "fell below an objective standard of reasonableness." Id. at 688, 104 S.Ct. 2052. And for prejudice, a petitioner must establish "a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different." Padilla v. Kentucky , 559 U.S. 356, 366, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010) (quoting Strickland , 466 U.S. at 694, 104 S.Ct. 2052 ). In the context of a guilty plea, a petitioner must demonstrate that "there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial." Hill v. Lockhart , 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). "Surmounting Strickland ’s high bar is never an easy task, and the strong societal interest in finality has special force with respect to convictions based on guilty pleas." Lee v. United States , ––– U.S. ––––, 137 S. Ct. 1958, 1967, 198 L.Ed.2d 476 (2017) (citations and quotation marks omitted).

Here, the district court assumed, without deciding, that Martin’s attorney’s performance was deficient. The district court then concluded that Martin could not demonstrate prejudice under the second prong of the Strickland test. As discussed below, we decline to assume that counsel’s performance was deficient.

In Padilla , the Supreme Court held that the Sixth Amendment right to effective assistance of counsel requires counsel to "inform her client whether his plea carries a risk of deportation." Padilla , 559 U.S. at 374, 130 S.Ct. 1473. Immigration law is complex, and "[w]hen the law is...