IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-40145

JESUS NATIVIDAD SANTOS-SANCHEZ

Petitioner-Appellant

v.

UNITED STATES OF AMERICA

Respondent-Appellee

Appeal from the United States District Court

for the Southern District of Texas

Before REAVLEY, CLEMENT, and PRADO, Circuit Judges.

PRADO, Circuit Judge:

This case primarily involves whether defense counsel or a trial judge must

inform a criminal defendant of the immigration consequences of a guilty plea.

The district court concluded that Jesus Natividad Santos-Sanchez (“SantosSanchez”) had failed to establish that his counsel provided ineffective assistance

or that his plea was involuntary. For the following reasons, we affirm the ruling

of the district court.

I. BACKGROUND

Santos-Sanchez has been a legal resident alien of the United States since

2001. On September 6, 2003, Santos-Sanchez drove into a United States Border

Patrol checkpoint approximately fifteen miles north of Laredo, Texas. During

United States Court of Appeals

Fifth Circuit

F I L E D

November 6, 2008

Charles R. Fulbruge III

Clerk
No. 07-40145

2

an inspection, agents discovered that one of Santos-Sanchez’s passengers was

an undocumented alien. Santos-Sanchez was then arrested and charged with

aiding and abetting the illegal entry of an alien in violation of 8 U.S.C. § 1325

and 18 U.S.C. § 2(a).

Two days later, Santos-Sanchez appeared before a magistrate judge and

pleaded guilty. Before entering his plea, Santos-Sanchez consulted with

Assistant Federal Public Defender Myrna Montemayor (“Montemayor”).

Another Assistant Federal Public Defender, Paul C. Saenz (“Saenz”),

represented Santos-Sanchez during his plea colloquy. The magistrate judge

sentenced Santos-Sanchez to one year of supervised probation and assessed a

$100 fine and a $10 special assessment. Santos-Sanchez completed his

probation without incident.

As a result of his guilty plea, the Department of Homeland Security

(“DHS”) brought removal proceedings against Santos-Sanchez. DHS alleged

that Santos-Sanchez was removable because he had knowingly encouraged,

induced, assisted, abetted, or aided another alien to illegally enter the United

States within five years of his entry into the country. See 8 U.S.C.

§ 1227(a)(1)(E)(i). An immigration judge (“IJ”) initially determined that SantosSanchez was not removable based upon his conviction. The Board of

Immigration Appeals later disagreed, vacating the IJ’s decision and remanding

the case for a new ruling.

The IJ postponed entering the new ruling, however, due to SantosSanchez’s filing a petition for a writ of coram nobis. Santos-Sanchez filed this

petition with the magistrate judge that had accepted his guilty plea and

sentenced him. In his petition, Santos-Sanchez alleged that his counsel provided

ineffective assistance and that his guilty plea was involuntary. After a hearing

and filings from both Santos-Sanchez and the government,the magistrate judge
No. 07-40145

3

granted the petition for a writ of coram nobis, vacating Santos-Sanchez’s

conviction and ordering a new trial.

The government then moved the district court to strike the magistrate

judge’s order and remove the case to the district court. The district court

granted the motion, holding that the magistrate judge lacked jurisdiction to

decide the petition. The district court thus vacated the magistrate judge’s

decision and noted that the petition remained pending before the district court.

The district court later denied Santos-Sanchez’s petition for a writ of coram

nobis. This timely appeal followed.

II. STANDARD OF REVIEW

We review the district court’s assumption of subject matter jurisdiction de

novo. Singh v. Duane Morris LLP, 538 F.3d 334, 337 (5th Cir. 2008). On appeal

from a district court’s denial of a petition for a writ of coram nobis, we review

factual findings for clear error, questions of law de novo, and the district court’s

ultimate decision to deny the writ for abuse of discretion. See United States v.

Mandanici, 205 F.3d 519, 524 (2d Cir. 2000); Alikhani v. United States, 200 F.3d

732, 734 (11th Cir. 2000). We note that “[a] district court abuses its discretion

when it bases its decision on an erroneous legal conclusion or on a clearly

erroneous finding of fact.” James v. Cain, 56 F.3d 662, 665 (5th Cir. 1995) (citing

McGary v. Scott, 27 F.3d 181, 183 (5th Cir. 1994)).

III. DISCUSSION

A. Jurisdiction

Santos-Sanchez argues that the district court erred in vacating the

magistrate judge’s order. The district court held that the magistrate judge

lacked jurisdiction because (1) delegation of such authority to a magistrate judge

would violate Article III of the Constitution, and (2) the district court had not

referred the case to the magistrate judge pursuant to 28 U.S.C. § 636(b)(1)(B) or

§ 636(c)(1). We affirm the district court’s conclusion solely on the lack of referral.
No. 07-40145

4

Santos-Sanchez first suggests that the magistrate judge had authority to

hear his petition because she was the judge who sentenced him. He notes that

“[a] coram nobis proceeding is brought in the sentencing court, like a § 2255

motion.” United States v. Cooper, 876 F.2d 1192, 1194 (5th Cir. 1989) (italics

omitted), abrogated on other grounds by Smith v. Barry, 502 U.S. 244 (1992). As

Santos-Sanchez pleaded before and was sentenced by a magistrate judge, he

suggests thatthe magistrate judge was the only proper forum in which to file his

petition. Santos-Sanchez essentially argues that the magistrate judge’s

statutory authority to sentence him implicitly included the authority to hear his

petition for a writ of coram nobis.

In determining whether a magistrate judge has the authority to address

a particular claim, we ask first whether Congress intended for the magistrate

judge to perform that task, and then whether such exercise of authority is

constitutional. See United States v. Johnston, 258 F.3d 361, 363–64 (5th Cir.

2001); United States v. Dees, 125 F.3d 261, 264 (5th Cir. 1997). Congress

explicitly granted a magistrate judge the authority to conduct misdemeanor

trials and impose sentences for petty offenses in 28 U.S.C. § 636(a). That same

section, however, also includes two distinct avenues for a magistrate judge to

hear applications for post-trial relief (such as a petition for a writ of coram

nobis). Under § 636(b)(1)(B), a district court can refer an application for posttrial relief to a magistrate judge for hearings and a recommended disposition.

Under § 636(c)(1), a magistrate judge can hear and decide any civil case,

including civil applications for post-trial relief, when the district court designates

it to do so and the parties consent. We do not think that Congress would

explicitly provide two ways for a magistrate judge to hear a petition for a writ

of coram nobis but silently intend that the magistrate judge’s authority over

certain criminal matters include a third. In light of these provisions, we do not

interpret the magistrate judge’s authority to sentence Santos-Sanchez as
No. 07-40145

5

inherently including the authority to hear a subsequent petition for a writ of

coram nobis.

Santos-Sanchez also argues thatthe magistrate had jurisdiction pursuant

to 28 U.S.C. § 636(c)(1). Section 636(c)(1) provides, in pertinent part,

Upon the consent of the parties, a full-time United States

magistrate judge . . . may conduct any or all proceedings in a jury or

nonjury civil matter and order the entry of judgment in the case,

when specially designated to exercise such jurisdiction by the

district court or courts he serves.

Accordingly, for the magistrate judge to hear Santos-Sanchez’s petition for a writ

of coram nobis pursuant to § 636(c)(1), (1) the parties must have consented to

proceed before the magistrate judge, (2) the proceeding must be a civil matter,

and (3) the district court must have specially designated the magistrate judge

to exercise such jurisdiction.

The parties agree that the petition was a civil matter but dispute whether

the government consented to the proceedings before the magistrate judge. We

see a more fundamental error, however, in the lack of a special designation by

the district court. Although neither party raises the issue of special designation,

“[t]he district court’s order of reference, or special designation, pursuant to

§ 636(c)(1), is a jurisdictional concern” that we must examine, sua sponte if

necessary. Hill v. City of Seven Points, 230 F.3d 167, 168 (5th Cir. 2000).

“[W]hen the magistrate enters judgment pursuant to 28 U.S.C. § 636(c)(1),

absence of the appropriate consent and reference (or special designation) order

results in a lack of jurisdiction . . . .” Mendes Junior Int’l Co. v. M/V Sokai

Maru, 978 F.2d 920, 924 (5th Cir. 1992). There is no indication in the record

that the district court ever referred or specially designated Santos-Sanchez’s

petition to the magistrate judge, and the district court noted that it had not done

so. The magistrate judge thus did not have jurisdiction to hear Santos-Sanchez’s

petition under § 636(c)(1).
No. 07-40145

6

Consequently, we affirm the district court’s conclusion thatthe magistrate

judge lacked jurisdiction to hear Santos-Sanchez’s petition. Because we hold

that the magistrate judge lacked jurisdiction on statutory grounds, we express

no opinion as to the district court’s conclusion that the magistrate judge’s

exercise of jurisdiction in the present case would violate Article III of the

Constitution. We thus turn to the merits of Santos-Sanchez’s appeal from the

district court’s judgment.

B. Merits of the Writ of Coram Nobis

In United States v. Esogbue, this court described the writ of coram nobis

as follows:

The writ of coram nobis is an extraordinary remedy available to a

petitioner no longer in custody who seeks to vacate a criminal

conviction in circumstances where the petitioner can demonstrate

civil disabilities as a consequence of the conviction, and that the

challenged error is of sufficient magnitude to justify the

extraordinary relief.

357 F.3d 532, 534 (5th Cir. 2004) (quotation omitted). The writ of coram nobis

exists “to correct errors ‘of the most fundamental character,’” id. at 535 (quoting

United States v. Morgan, 346 U.S. 502, 512 (1954)), and “will issue only to

correct errors resulting in a complete miscarriage of justice,” Jimenez v.

Trominski, 91 F.3d 767, 768 (5th Cir. 1996). Further, “[t]he writ will issue only

when no other remedy is available and when sound reasons exist for failure to

seek appropriate earlier relief.” United States v. Dyer, 136 F.3d 417, 422 (5th

Cir. 1998) (quotation and alteration omitted).

As the district court correctly concluded, a writ of coram nobis is the

proper avenue for Santos-Sanchez to seek relief. Santos-Sanchez is no longer in

custody and seeks to vacate his misdemeanor aiding and abetting conviction

because it triggered removal proceedings against him. Cf. Esogbue, 357 F.3d at

534. The district court also held that Santos-Sanchez had established sound
No. 07-40145

1 Under 8 U.S.C. § 1227(a)(1)(E)(i), 

[a]ny alien who (prior to the date of entry, at the time of any entry, or within 5

years of the date of any entry) knowingly has encouraged, induced, assisted,

abetted, or aided any other alien to enter or to try to enter the United States in

violation of law is deportable.

Santos-Sanchez became deportable upon pleading guilty to aiding and abetting the illegal

entry of an alien in violation of 8 U.S.C. § 1325 and 18 U.S.C. § 2. And because SantosSanchez has not been either present in or a legal resident of the United States for a sufficient

period of time, he is ineligible for discretionary relief under 8 U.S.C. § 1229b.

7

reasons for failing to seek appropriate earlier relief, and the parties do not

dispute this conclusion.

Santos-Sanchez has no avenue for relief from deportation,1 and raises

three errors that he asserts warrant coram nobis relief based on the advice he

received and did not receive regarding the certainty of his deportation. First, he

argues that his defense counsel rendered ineffective assistance by affirmatively

misrepresenting the immigration consequences of his guilty plea. Second and

alternatively, Santos-Sanchez argues that his defense counsel rendered

ineffective assistance by failing to warn him of the immigration consequences of

his guilty plea. Finally, Santos-Sanchez argues that his plea was involuntary

due to the magistrate judge’s failure to admonish him of the immigration

consequences of his guilty plea. We address each argument in turn.

1. Ineffective Assistance of Counsel Due to Affirmative

Misrepresentation

As to Santos-Sanchez’s first argument, ineffective assistance of counsel is

an error that can warrant coram nobis relief. See United States v. Castro, 26

F.3d 557, 559 (5th Cir. 1994). The standard for establishing ineffective

assistance of counsel is the familiar test from the Supreme Court’s decision in

Strickland v. Washington: the defendant must establish that (1) counsel’s

performance was deficient, and (2) counsel’s performance prejudiced the

defendant. Castro, 26 F.3d at 559 (citing Strickland v. Washington, 466 U.S.

668, 687 (1984)); United States v. Banda, 1 F.3d 354, 356 (5th Cir. 1993); see also
No. 07-40145

2 Montemayor further stated that she was “sure that [she] informed [Santos-Sanchez]

of this, as it is [her] habit to do so in cases involving resident aliens.”

3 The district court treated Santos-Sanchez’s ineffective assistance of counsel claims

primarily as a failure to warn. Santos-Sanchez urges us to treat his claims as an affirmative

misrepresentation and, alternatively, a failure to warn. Even when we address both, however,

we reach the same conclusion as the district court.

8

Hill v. Lockhart, 474 U.S. 52, 57 (1985) (holding that the Strickland test applies

to claims of ineffective assistance of counsel in plea bargaining). We determine

whether counsel’s performance was deficient by measuring it against “an

objective standard of reasonableness under prevailing professional norms.”

Castro, 26 F.3d at 559 (quotation omitted). As to prejudice, “the defendant must

show thatthere is a reasonable probability that, butfor counsel’s unprofessional

errors, the result of the proceeding would have been different.” Id. (quotations

and alteration omitted).

Santos-Sanchez asserts that his counsel misled him into thinking that he

had a chance of remaining in the country if he pleaded guilty. Montemayor

stated in her affidavit that “it is [her] practice to always advise resident alien

defendants that there is a possibility that they may be deported as a result of

their plea of guilty to the criminal charge against them, and that they may want

to consult with an immigration lawyer.”2 Santos-Sanchez argues that this

statement was an affirmative misrepresentation of the law; Montemayor

indicated that deportation was possible, when in fact it was almost certain.

Santos-Sanchez thus argues that Montemayor misled him into thinking that he

could plead guilty but avoid deportation. Further, according to Santos-Sanchez’s

affidavit, Saenz gave Santos-Sanchez an immigration lawyer’s business card and

suggested that Santos-Sanchez call the lawyer if he had any problems with

immigration. Santos-Sanchez argues that this only compounded Montemayor’s

misrepresentation. By leaving him with the impression that deportation was not

certain, Santos-Sanchez argues, his counsel’s performance was deficient.3
No. 07-40145

9

In support of his argument, Santos-Sanchez relies on United States v.

Kwan, 407 F.3d 1005 (9th Cir. 2005), and United States v. Couto, 311 F.3d 179

(2d Cir. 2002). In both Kwan and Couto, attorneys indicated to their clients that

guilty pleas to aggravated felonies would not necessarily result in deportation

when deportation was actually a near certainty. See Kwan, 407F.3d at 1008–09;

Couto, 311 F.3d at 187. In both cases, the court held that an attorney’s

misleading statements about the deportation consequences of a guilty plea

constituted objectively unreasonable conduct that satisfies Strickland’s first

prong. See Kwan, 407 F.3d at 1015–17; Couto, 311 F.3d at 188.

The attorneys’ actions in Kwan and Couto, however, were quite different

from the public defenders’ actions in the present case. In Couto, the attorney

“assured [his client]thatthey could deal with her immigration problem after the

guilty plea.” 311 F.3d at 183. The Second Circuit found fault in the attorney’s

representations that “there were a lot of things that could be done to avoid

deportation” and that his client “should not worry about it.” Id. at 184.

According to the court, these statements “affirmatively misled [the defendant]

into believing there were things that could be done to avoid deportation (when

in fact there were none).” Id. at 187.

In Kwan, the attorney responded to the defendant’s specific questions

regarding the deportation consequences of a guilty plea, gave erroneous advice,

and “represented himself as having expertise on the immigration consequences

of criminal convictions.” 407 F.3d at 1015–16. The Ninth Circuit emphasized

thatthe attorney “made an affirmative representation to [the defendant]that he

had knowledge and experience regarding the immigration consequences of

criminal convictions.” Id. at 1016. Moreover, the court noted that 

[i]f counsel did not have the requisite competence in immigration

law, or if counsel did not plan on maintaining the requisite

competence, he should not have advised [the defendant] regarding

the immigration consequences of his plea without referring [the
No. 07-40145

10

defendant] to an immigration lawyer or consulting himself with an

immigration lawyer in the first place.

Id.

In contrast, neither Montemayor nor Saenz represented thatthey had any

expertise in immigration law, nor did they suggest that Santos-Sanchez could

probably avoid deportation after pleading guilty. They also did not purport to

answer any questions Santos-Sanchez had regarding deportation. Further,

Montemayor’s statement put Santos-Sanchez on notice that there were potential

immigration consequences of his guilty plea and suggested that he should seek

out an immigration attorney. Saenz even gave Santos-Sanchez the name of an

immigration attorney that he could contact. While Montemayor’s statement that

deportation was “possible” might indicate that deportation was not a certainty,

it is not so inherently misleading in this context that it constitutes an

affirmative misrepresentation of the law. Cf. Zhang v. United States, 543 F.

Supp. 2d 175, 183 (E.D.N.Y. 2008) (noting that an attorney’s advice regarding

the immigration consequences of a guilty plea was “mistaken,” but not an

affirmative misrepresentation). Under these circumstances, we cannot hold that

the behavior of Santos-Sanchez’s public defenders was objectively unreasonable.

Consequently, Santos-Sanchez has failed to establish deficient performance due

to affirmative misrepresentation.

2. Ineffective Assistance of Counsel Due to Failure to Warn

In his second argument, Santos-Sanchez asserts that the district court

erred in finding no ineffective assistance due to his counsel’s failure to warn him

of the immigration consequences of a guilty plea. The district court held that

counsel was not required to advise Santos-Sanchez of the immigration

consequences of his guilty plea because, under our decision in Banda,

deportation is a collateral consequence of a guilty plea. See Banda, 1 F.3d at 355

(holding “that an attorney’s failure to advise a client that deportation is a
No. 07-40145

4 We recognize that some commentators have criticized this rule as inconsistent with

Strickland. See, e.g., Gabriel J. Chin & Richard W. Holmes, Jr., Effective Assistance of Counsel

and the Consequences of Guilty Pleas, 87 CORNELL L.REV. 697 (2002). Absent reconsideration

en banc or an intervening Supreme Court decision, however, we are bound to follow the holding

of Banda. See Billiot v. Puckett, 135 F.3d 311, 316 (5th Cir. 1998) (“As a general rule, one

panel may not overrule the decision of a prior panel, right or wrong, in the absence of an

intervening contrary or superseding decision by this court sitting en banc or by the United

States Supreme Court.”).

11

possible consequence of a guilty plea does not constitute ineffective assistance

of counsel”).

This court has clearly stated that “[d]efense counsel has done all he must

under the Constitution when he advises his client of the direct consequences of

a guilty plea.” Id. at 356. That is, counsel’s failure to inform a defendant of the

collateral consequences of a guilty plea is never deficient performance under

Strickland.

4 Santos-Sanchez suggests, however, that our decision in Banda left

open the question of whether an attorney’s failure to advise a client that

deportation is a certain consequence of a guilty plea constitutes ineffective

assistance of counsel. Santos-Sanchez suggests that certain deportation is a

direct consequence of a guilty plea, and an attorney musttherefore inquire about

her client’s immigration status and inform her client of this consequence.

Santos-Sanchez misconstrues our decision in Banda. In Banda, we held

that deportation—not the possibility of deportation—was a collateral

consequence ofthe criminal process. See id. at 356 (likening deportation, notthe

possibility of deportation, to the other collateral consequences of a guilty plea

such as loss of the right to vote and right to travel, and noting that “[f]ailure by

counsel to advise a client of these or any other collateral eventualities would not

constitute a Sixth Amendment violation”). The likelihood that a defendant

would be deported was irrelevant to this determination. Therefore, under

Banda, counsel’s failure to inquire into Santos-Sanchez’s immigration status and
No. 07-40145

12

inform him of his likely deportation was not deficient performance and thus did

not constitute ineffective assistance of counsel.

Santos-Sanchez notes that recent changes in immigration laws,

particularly the closure of avenues for discretionary relief from deportation in

the Illegal Immigration Reform and Immigrant Responsibility Act of 1996

(“IIRIRA”), Pub. L. No. 104-208, 110 Stat. 3009-546, have rendered deportation

a certainty for some defendants that enter guilty pleas. Santos-Sanchez

suggests changes in the law have so altered the nature of deportation that it is

now in some cases a direct consequence of a guilty plea. Santos-Sanchez thus

asserts that, at least in cases where deportation is a near-certain consequence

of a guilty plea, counsel must inform defendants of the immigration

consequences of their guilty plea to provide effective assistance.

This argument has been working its way through the circuit courts. In the

first case to address this issue, the First Circuit held that IIRIRA did not alter

the court’s prior holding that deportation was a collateral consequence of a guilty

plea. See United States v. Gonzalez, 202 F.3d 20, 28 (1st Cir. 2000). The court

first noted that “the immigration consequences of a plea are collateral

irrespective of the reason for which an alien is deemed deportable.” Id. at 26.

It went on to state that

[w]hat renders the plea’s immigration effects collateral is not that

they arise virtually by operation of law, butthe factthat deportation

is notthe sentence ofthe court which accepts the plea but of another

agency over which the trial judge has no control and for which he

has no responsibility.

Id. at 27 (quotations and alterations omitted). The court reasoned that,

regardless of how automatic IIRIRA might have rendered deportation, it was

still beyond the control and responsibility of the district court. Id. The First

Circuit thus “reject[ed] the argument that [IIRIRA has] so altered the

relationship between conviction and deportation that revisitation of [its] prior
No. 07-40145

13

holdings on that relationship [was] required.” Id. at 28. Consequently, the

collateral nature of deportation “bar[red] any ineffective assistance claims based

on an attorney’s failure to advise a client of his plea’s immigration

consequences.” Id.

TheTenth Circuit came to the same conclusion in Broomes v. Ashcroft, 358

F.3d 1251 (10th Cir. 2004). Like the First Circuit, the Tenth Circuit had

previously held that “‘deportation is a collateral consequence of the criminal

proceeding and therefore the failure to advise does not amount to ineffective

assistance of counsel.’” Id. at 1256 (quoting Varela v. Kaiser, 976 F.2d 1357,

1358 (10th Cir. 1992)). In Broomes, the court held that neither IIRIRA nor the

Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub. L. No.

104-132, 110 Stat. 1214, altered the collateral nature of deportation. Broomes,

358 F.3d at 1256–57. As the court noted, “[a] consequence is collateral if it

‘remains beyond the control and responsibility of the district court in which that

conviction was entered.’” Id. at 1256 (quoting Gonzalez, 202 F.3d at 27). The

Tenth Circuit thus concluded that

[s]tate courts have no more control over whether a criminal

defendant will be deported today than they did prior to the 1996

Acts. Accordingly, deportation remains a collateral consequence of

a criminal conviction, and counsel’s failure to advise a criminal

defendant of its possibility does not result in a Sixth Amendment

deprivation.

Id. at 1257.

We agree with the First and Tenth Circuits that the changes wrought by

IIRIRA have not so altered the nature of deportation as to wholly undermine our

holding in Banda. We, like our sister circuits, have drawn a bright line between

the direct and collateral consequences of a guilty plea and require that counsel

advise a defendant of only the former. And also like our sister circuits, we have

limited the direct consequences of a guilty plea to “the immediate and automatic
No. 07-40145

5 We acknowledge that deportation is a harsh consequence. Yet this court and others

have found many harsh consequences of a guilty plea to be collateral, including revocation of

parole, civil commitment, disenfranchisement, revocation of public benefits, and restrictions

on travel. Chin & Holmes, supra, at 705–06.

14

consequences of that plea such as the maximum sentence length or fine.” Duke

v. Cockrell, 292 F.3d 414, 417 (5th Cir. 2002). Under Banda, regardless of

certainty, deportation is a collateral consequence of a guilty plea.5 Consequently,

Santos-Sanchez’s counsel was not required to inform him of the immigration

consequences of his guilty plea for counsel’s assistance to be effective.

Because we hold that Santos-Sanchez has failed to prove that his counsel’s

performance was deficient, we need not address whether he has established

prejudice. See United States v. Stewart, 207 F.3d 750, 751 (5th Cir. 2000) (per

curiam) (“A court need not address both components of an ineffective assistance

of counsel claim if the movant makes an insufficient showing on one.”). Thus,

we affirm the district court’s conclusion that Santos-Sanchez failed to establish

that his counsel provided ineffective assistance due to either affirmative

misrepresentation or failure to warn.

3. Voluntariness of the Guilty Plea

Santos-Sanchez asserts that the magistrate judge’s failure to admonish

him of the immigration consequences of his guilty plea rendered his plea

involuntary. The district court held that the magistrate judge was not required

to advise Santos-Sanchez of such consequences because, under our decision in

Banda, deportation is a collateral consequence of a guilty plea.

A criminal defendant entering a guilty plea must do so knowingly,

voluntarily, and intelligently. UnitedStates v. Guerra, 94 F.3d 989, 995 (5th Cir.

1996); see also Hill, 474 U.S. at 56. Thus, “the defendant must have ‘a full

understanding of whatthe plea connotes and of its consequence.’” United States

v. Hernandez, 234 F.3d 252, 255 (5th Cir. 2000) (quoting Boykin v. Alabama, 395
No. 07-40145

15

U.S. 238, 244 (1969)). We have long held, however, that “[t]he defendant need

only understand the direct consequences of the plea; he need not be made aware

every [sic] consequence that, absent a plea of guilty, would not otherwise occur.”

Id. (citing Trujillo v. United States, 377 F.2d 266, 289–69 (5th Cir. 1967)); see

also Duke, 292 F.3d at 416; Banda, 1 F.3d at 356.

We have previously held that neither due process nor Federal Rule of

Criminal Procedure 11 require that a court advise a defendant of the collateral

consequences of a guilty plea. See Banda, 1 F.3d at 356; United States v. Posner,

865 F.2d 654, 660 (5th Cir. 1989) (noting that “[t]he failure to advise a defendant

of collateral consequences of a plea of guilty does not render it involuntary”).

Under Banda, deportation is one such collateral consequence. Thus, the

magistrate judge’s failure to warn Santos-Sanchez of the immigration

consequences of his guilty plea did not render that plea involuntary.

Santos-Sanchez again asserts that changes in immigration laws have

changed the collateral nature of deportation such that judges must admonish

defendants of the immigration consequences of a guilty plea for that plea to be

voluntary. The Ninth Circuit rejected this argument in United States v.

Amador-Leal, 276 F.3d 511 (9th Cir. 2002). Like the First Circuit and Tenth

Circuit, the Ninth Circuit had held prior to IIRIRA that the immigration

consequences of a guilty plea are collateral to that plea. Id. at 514 (discussing

Fruchtman v. Kenton, 531 F.2d 946 (9th Cir. 1976)). The court in Amador-Leal

noted that “[t]he distinction between a direct and collateral consequence of a

plea turns on whether the result represents a definite, immediate and largely

automatic effect on the range of the defendant’s punishment.” Id. at 514

(quotation omitted). While recognizing that both IIRIRA and AEDPA have

wrought significant changes on the immigration consequences of a guilty plea,

the Ninth Circuit emphasized that deportation still did not occur until after the

defendant serves her sentence and remained under the control and responsibility
No. 07-40145

6 Only the Second Circuit has suggested, without holding, that IIRIRA and AEDPA

might have altered the collateral nature of deportation. See Couto, 311 F.3d at 188–91.

16

of another governmental agency. Id. at 516. The court concluded that neither

IIRIRA nor AEDPA has so altered the nature of deportation as to render it a

direct consequence of a guilty plea. Id. at 517. And because a court must advise

a defendant only of the direct consequences of a guilty plea, “district courts are

not constitutionally required to warn defendants about potential removal in

order to assure voluntariness of a plea.” Id.

The Sixth Circuit reached the same conclusion in El-Nobani v. United

States, 287 F.3d 417 (6th Cir. 2002). While the Sixth Circuit had never before

addressed whether deportation was a direct or collateral consequence of a guilty

plea, the court in El-Nobani held that deportation was collateral even in light of

IIRIRA’s changes to immigration law. Id. at 421. The court noted that “the

automatic nature of the deportation proceeding does not necessarily make

deportation a direct consequence of the guilty plea[; a] collateral consequence is

one that ‘remains beyond the control and responsibility of the district court in

which that conviction was entered.’” Id. (quoting Gonzalez, 202 F.3d at 27).

Since a judge must admonish a defendant only of the direct consequences of a

guilty plea, the Sixth Circuit concluded that “the fact that [a defendant] was

unaware of the deportation consequences of his pleas does not make his pleas

unknowing or involuntary.” Id.

Again, we agree with the other circuits that have addressed this issue.6

For the reasons discussed above, the magistrate judge was not required to

inform Santos-Sanchez of the immigration consequences of his guilty plea for

that plea to be voluntary. Thus, we affirm the district court’s conclusion that

Santos-Sanchez failed to establish that his guilty plea was involuntary.
No. 07-40145

17

IV. CONCLUSION

Because Santos-Sanchez has established no factual or legal errors in the

district court’s ruling and has not suggested any abuse of discretion, we AFFIRM

the district court’s denial of his petition for a writ of coram nobis.

AFFIRMED.