PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

__________

No. 13-3111

___________

UNITED STATES OF AMERICA

v.

COSMO FAZIO,

 Appellant 

__________

On Appeal from the United States District Court 

for the Western District of Pennsylvania

(No. 2-09-cr-00325-006)

District Judge: Honorable Terrence F. McVerry

Argued: October 1, 2014

_________________

Before: AMBRO, CHAGARES, and VANASKIE, Circuit 

Judges.

(Filed: August 4, 2015)

Almon S. Burke, Jr., Esq. (Argued)

U.S. Steel Tower

600 Grant Street, Suite 660

Pittsburgh, PA 15219

Mark A. Goldstein, Esq. (Argued)

Goldstein & Associates, LLC

1125 Penn Avenue, 3d Floor

Pittsburgh, PA 15222

Counsel for Appellant
2

Michael L. Ivory, Esq. (Argued)

Rebecca R. Haywood, Esq.

Office of United States Attorney 

700 Grant Street, Suite 4000

Pittsburgh, PA 15219

Counsel for Appellee

__________________

OPINION

__________________

CHAGARES, Circuit Judge.

Cosmo Fazio appeals the District Court’s denial of his 

motion to vacate, set aside, or correct his sentence under 28 

U.S.C. § 2255. In his motion, Fazio asserted that his plea 

counsel was ineffective because he failed to warn Fazio 

properly of the immigration consequences of his guilty plea,

as required by the Supreme Court in Padilla v. Kentucky, 559 

U.S. 356 (2010). Notwithstanding plea counsel’s purported 

error, the plea agreement – which plea counsel reviewed with 

Fazio thoroughly – contained a waiver of collateral-attack 

rights and, inter alia, advised of the possibility that Fazio 

could face automatic removal from the United States as a 

result of the plea. The District Court conducted a detailed 

colloquy, specifically reviewing these provisions of the plea 

agreement with Fazio and questioning him regarding his 

awareness that a consequence of his plea could be automatic 

removal. This case requires us to determine the effect of the 

plea agreement’s provisions and the District Court’s colloquy 

on Fazio’s ineffective assistance claim and whether the 

collateral-attack waiver is enforceable. For the reasons that 

follow, we will affirm the District Court’s denial of Fazio's 

motion. 

I.

On December 9, 2009, a federal grand jury sitting in 

the Western District of Pennsylvania returned an eight-count 

indictment against Fazio and twelve co-defendants for their 

alleged involvement in a cocaine distribution network. Fazio 

was charged only in Count One of the indictment with 
3

conspiracy to distribute and possess with intent to distribute 

five kilograms or more of cocaine, in violation of 21 U.S.C. § 

846. On June 3, 2011, Fazio pleaded guilty to the lesserincluded offense of conspiring to distribute more than 200 

grams but fewer than 300 grams of cocaine. Supplemental 

Appendix (“Supp. App.”) 1–2. Fazio’s plea agreement 

contained the following provision:

Cosmo Fazio waives the right to take a direct 

appeal from his conviction or sentence under 28 

U.S.C. § 1291 or 18 U.S.C. § 3742, subject to 

the following exceptions:

(a) If the United States appeals from the 

sentence, Cosmo Fazio may take a direct appeal 

from the sentence.

(b) If (1) the sentence exceeds the applicable 

statutory limits set forth in the United States 

Code, or (2) the sentence unreasonably exceeds 

the guideline range determined by the Court 

under the Sentencing Guidelines, Cosmo Fazio 

may take a direct appeal from the sentence.

Cosmo Fazio further waives the right to file a 

motion to vacate sentence, under 28 U.S.C. §

2255, attacking his conviction or sentence, and 

the right to file any other collateral proceeding 

attacking his conviction or sentence.

Supp. App. 3–4. The plea agreement further stated:

Cosmo Fazio 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. 

Removal and other immigration consequences 

are the subject of a separate proceeding, 

however, and the defendant understands that 

no one, including his own attorney or the 

district court, can predict to a certainty the 

effect of his conviction on his immigration 
4

status. Defendant 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.

Supp. App. 3. Fazio was born and raised in Bari, Italy and 

immigrated to the United States in 1992, at the age of twentythree. Supp. App. 27. He is a permanent resident alien. 

Appendix (“App.”) 50.

At Fazio’s plea hearing, the District Court conducted a 

colloquy in open court. It specifically questioned Fazio to 

make sure that he understood the appellate waiver provision 

of his plea agreement:

THE COURT: Do you also understand 

ordinarily you or the government may have the 

right to appeal any sentence that I impose, 

however, I note in Paragraph A13 of your plea 

agreement, you and the government agreed that 

you would waive, again, that’s give up, your 

right to take a direct appeal from your 

conviction . . . 

Further, you’ve also waived the right to file a 

motion to vacate sentence under 28 United 

States Code, Section 2255 and the right to file 

any other collateral proceeding attacking your 

conviction or sentence, do you understand that?

THE DEFENDANT: Yes, Your Honor.

THE COURT: Waivers of appeal are generally 

permissible if entered into knowingly and 

voluntarily unless they work a miscarriage of 

justice. I have examined the record in this case, 

observed you and heard your responses to my 

questions in open court, and I find no basis for 

invalidating your waiver in this case.
5

App. 26–28. The District Court also questioned Fazio 

regarding the potential immigration consequences of his 

guilty plea:

THE COURT: Mr. Fazio, in addition to the 

possible penalties of which I have advised you, 

because you are not a United States citizen, you 

will also face a risk of removal from the United 

States after you have served any sentence 

imposed by this Court.

Under federal law, a broad range of crimes are 

removable offenses, including the offense to 

which you are pleading guilty. Removal and 

other immigration consequences are the subject 

of a separate proceeding, however. Do you 

understand that no one, including your attorney 

or me or the government’s attorney can predict 

to a certainty the effect of your conviction on 

your immigration status?

THE DEFENDANT: Yes.

THE COURT: Now knowing this, do you 

nevertheless want to plead guilty regardless of 

any immigration consequences that your plea of 

guilty may entail, even if the consequence is 

your automatic removal from the United States?

THE DEFENDANT: Yes.

App. 22–23. Fazio informed the District Court that he 

understood the nature of the offense to which he was pleading 

guilty. App. 16, 28. He also confirmed that he had reviewed 

the terms of the plea agreement with his attorney and 

understood those terms. App. 17, 35. The District Court 

found that Fazio was competent to plead guilty and that he 

was doing so knowingly and voluntarily. App. 44–45. 

Accordingly, the court accepted his plea. 

Fazio was represented by counsel at the time of his 

guilty plea. His counsel was aware that Fazio was not an 
6

American citizen. App. 99. His counsel testified that, prior 

to the plea hearing, he informed Fazio that there

could be immigration consequences. However, 

it was my opinion that he would be entitled to a 

hearing. And given what I had learned of his 

family and friends and background, I was 

confident that with competent immigration 

counsel, being unaware of the law, that he stood 

a good chance of not being deported. I certainly 

told him it was a possibility, however.

App. 105. In addition, he testified that he reviewed the plea 

agreement with Fazio “line by line,” including the provision 

regarding immigration consequences. App. 106. After 

reviewing that provision, he told Fazio that “there was 

certainly a chance he could be deported, but it was my 

opinion he would not be.” App. 107.

After Fazio pleaded guilty, his wife became concerned 

about the possible immigration consequences of his 

conviction and contacted a law firm specializing in 

immigration law. App. 54. On June 13, 2011, ten days after 

the entry of his guilty plea, Fazio, his wife, a family friend, 

and his plea counsel met with immigration attorneys Mark 

Goldstein and Andrew Wood. App. 55. During that meeting, 

Goldstein stated that it was certain that Fazio would be 

deported because he had pleaded guilty to an aggravated 

felony. App. 56. Goldstein, Fazio, and Fazio’s wife 

discussed the possibility that Fazio might request a change to 

his plea agreement to attempt to avoid this consequence. 

Fazio’s plea counsel expressed that he had been unaware of 

the immigration consequences of the plea, that he had made a 

mistake, and that he would help Fazio rectify the situation. 

App. 56. 

In July 2011, Fazio terminated his plea counsel and 

retained new counsel. App. 57–58. On November 1, 2011, 

Fazio moved to withdraw his guilty plea pursuant to Federal 

Rule of Criminal Procedure 11(d)(2)(B). Supp. App. 35–36. 

He argued that he was denied his Sixth Amendment right to 

effective assistance of counsel because his plea counsel failed 

to advise him properly regarding the immigration 
7

consequences of his plea, as required by the Supreme Court in 

Padilla v. Kentucky. Supp. App. 38. At the evidentiary 

hearing, Fazio’s plea counsel testified that he told Fazio that 

he had “an absolute right to at least a hearing,” and that he 

“thought [Fazio] had a greater likelihood of staying in the 

country than being deported.” App. 117. Goldstein testified 

that the consequence of Fazio pleading guilty to an 

aggravated felony was that he would have no defense to 

deportation. App. 76. During cross-examination, Goldstein 

conceded that it was possible for someone who was convicted 

of the identical crime as Fazio to remain in the country if the 

person was provided with an S visa, given to some noncitizens who provide assistance to law enforcement, App. 83–

86, or if there was a change in law, App. 91–92. On 

December 27, 2011, the District Court denied Fazio’s motion 

to withdraw his guilty plea, finding that his attorney did not 

violate the standard in Padilla, and that even if he did, the 

Court’s plea colloquy cured any error. Supp. App. 24, 40–41.

Following his sentencing, Fazio filed a direct appeal 

with this Court. The Government moved to enforce the 

appellate waiver in Fazio’s plea agreement. We summarily 

granted the Government’s motion to enforce the appellate 

waiver and affirmed the District Court’s judgment.

On April 9, 2013, Fazio was issued a Form I-862, 

Notice to Appear, by the Immigration and Customs 

Enforcement of the United States Department of Homeland 

Security, placing him in removal proceedings. App. 120. 

Fazio filed a motion under 28 U.S.C. § 2255 on April 

11, 2013, again asserting that his plea counsel violated 

Padilla. The Government moved to enforce the collateralattack waiver in Fazio’s plea agreement. The District Court 

granted the Government’s motion and denied Fazio’s § 2255 

motion. App. 7. 

Fazio filed a timely notice of appeal. On October 10, 

2013, this Court granted a certificate of appealability and 

directed the parties to address the following issues: (1) 

whether the District Court erred in enforcing Fazio’s 

collateral-attack waiver; and (2) whether Fazio was entitled to 

relief on his ineffective assistance claim. App. 8. 
8

II.

The District Court had jurisdiction over this action 

pursuant to 28 U.S.C. § 1331 and § 2255(d), and we have 

appellate jurisdiction pursuant to 28 U.S.C. § 1291. We 

review the validity of a collateral-attack waiver de novo. 

United States v. Khattak, 273 F.3d 557, 560 (3d Cir. 2001). 

We exercise plenary review over a district court’s legal 

conclusions in ruling on a habeas corpus petition and apply a 

clearly erroneous standard in reviewing its factual findings. 

Cradle v. U.S. ex rel. Miner, 290 F.3d 536, 538 (3d Cir. 

2002). 

III.

The threshold issue in this appeal is whether the 

District Court erred in enforcing the collateral-attack waiver 

in Fazio’s plea agreement. “A criminal defendant may 

knowingly and voluntarily waive many of the most 

fundamental protections afforded by the Constitution.” 

United States v. Mezzanatto, 513 U.S. 196, 201 (1995). 

Further, a defendant may waive the statutory right to appeal if 

he does so with knowledge of the nature and consequences of 

the waiver. Khattak, 273 F.3d at 561. Thus, we will enforce 

appellate or collateral-attack waivers when they are entered 

into knowingly and voluntarily and their enforcement does 

not work a miscarriage of justice. See United States v. Erwin, 

765 F.3d 219, 225 (3d Cir. 2014); Khattak, 273 F.3d at 561 

(“[W]aivers of appeals, if entered into knowingly and 

voluntarily, are valid.”). Fazio argues that the collateralattack waiver in his plea agreement was not made knowingly 

and voluntarily and that enforcement of the collateral-attack 

waiver would constitute a miscarriage of justice.1

 

1 Fazio advances an additional argument that we should not 

enforce collateral-attack waivers because they are contrary to 

public policy and procedurally unconscionable as a result of 

the Government’s excessive bargaining power during plea 

negotiations. We have previously noted the “benefits of such 

waivers to the defendant, government and court system,” and 

thus “have refused to find waivers of appeal rights violative 

of public policy.” United States v. Mabry, 536 F.3d 231, 237 
9

A.

We consider first whether Fazio entered into the plea 

agreement knowingly and voluntarily. His plea agreement 

clearly includes a broad appellate waiver that applies to both 

direct appeal and collateral-attack rights. Counsel explained 

the waiver to Fazio and he signed the agreement, 

acknowledging that he understood its terms. Further, the 

District Court asked Fazio at the plea colloquy whether he 

had been coerced into entering the plea agreement and 

discussed its terms with him. The District Court ultimately 

found that Fazio was competent to plead guilty and did so 

knowing the consequences of his plea. We conclude that it 

did not err in finding that Fazio entered into the plea 

agreement knowingly and voluntarily. 

B.

As Fazio’s plea agreement was knowing and 

voluntary, the “appellate waiver must therefore be enforced 

unless we identify the unusual circumstance of an error 

amounting to a miscarriage of justice in his sentence.” Erwin, 

765 F.3d at 226 (quotation marks omitted). This 

determination depends on factors such as

the clarity of the error, its gravity, its character 

(e.g., whether it concerns a fact issue, a 

sentencing guideline, or a statutory maximum), 

the impact of the error on the defendant, the 

impact of correcting the error on the 

government, and the extent to which the 

defendant acquiesced in the result.

Id. (quotation marks omitted).

Fazio argues that enforcement of the waiver would 

work a miscarriage of justice because he received ineffective 

assistance of counsel. In United States v. Mabry, we noted

 

(3d Cir. 2008) (citing Khattak, 273 F.3d at 561). We 

therefore reject Fazio’s arguments.
10

that a miscarriage of justice may exist in a case “raising 

allegations that counsel was ineffective or coercive in 

negotiating the very plea agreement that contained the 

waiver.” 536 F.3d at 243; cf. United States v. Monzon, 359 

F.3d 110, 118–19 (2d Cir. 2004) (“The appeal waiver would 

be unenforceable if the record . . . revealed that the claim that 

the waiver was the result of ineffective assistance of counsel 

was meritorious. But if the record on appeal shows that that 

claim lacks merit, the appeal should be dismissed because the 

waiver should be enforced.”).

We analyze Fazio’s claim of ineffective assistance of 

counsel under the Supreme Court’s two-prong test from 

Strickland v. Washington, 466 U.S. 668 (1984). Under the 

first prong of the Strickland test, Fazio must show “that 

counsel made errors so serious that counsel was not 

functioning as the ‘counsel’ guaranteed the defendant by the 

Sixth Amendment.” Id. at 687. Under the second, or 

“prejudice” prong, he must demonstrate that “there is a 

reasonable probability that, but for counsel’s unprofessional 

errors, the result of the proceeding would have been different. 

A reasonable probability is a probability sufficient to 

undermine confidence in the outcome.” Id. at 694. In the 

context of a guilty plea, the prejudice prong of the test 

requires a showing “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 (1985). We may consider the Strickland prongs 

in either order, Strickland, 466 U.S. at 670, and, indeed, we 

have noted that it is often practical to consider the prejudice 

prong first. See United States v. Booth, 432 F.3d 542, 546 (3d 

Cir. 2005).

Fazio contends that his plea counsel was ineffective 

because he did not satisfy the Sixth Amendment requirements 

for counsel set forth in Padilla v. Kentucky. He faults his 

plea counsel for advising him only that he would face a 

possibility of deportation when in fact his plea would result in 

almost certain deportation. Fazio also states that, had he been 

provided with the proper legal advice, he would not have 

pleaded guilty. Fazio Br. 54.
11

In Padilla, defense counsel failed to advise his noncitizen client of the immigration consequences of pleading 

guilty. Counsel specifically told the defendant that “he did 

not have to worry about immigration status since he had been 

in the country so long.” 559 U.S. at 359 (quotation marks 

omitted). The Supreme Court noted that there are “numerous 

situations in which the deportation consequences of a 

particular plea are unclear or uncertain” and that, in such 

situations, “a criminal defense attorney need do no more than 

advise a noncitizen client that pending criminal charges may 

carry a risk of adverse immigration consequences.” Id. at 

369. However, “when the deportation consequence is truly 

clear,” as it was in Padilla’s case because he had committed a 

removable offense, “the duty to give correct advice is equally 

clear.” Id. Padilla was entitled to be “advised . . . that his 

conviction for drug distribution made him subject to 

automatic deportation,” id. at 360, and his defense counsel’s 

failure to meet this requirement was constitutionally deficient 

representation under the first prong of Strickland. Id.

Following Padilla, we decided, in United States v. 

Orocio, that counsel was constitutionally deficient for failing

to advise a non-citizen defendant that his guilty plea carried a 

risk of deportation. 645 F.3d 630, 642–43 (3d Cir. 2011), 

abrogated on other grounds by Chaidez v. United States, 133 

S. Ct. 1103 (2013). Like the attorney in Padilla, defense 

counsel in Orocio completely failed to advise his client of the 

“near-certain removal consequence of pleading guilty to a 

controlled substance offense.” Id. at 642. And like the 

attorney in Padilla, defense counsel “affirmatively misled” his 

client, telling him that “he did not have to worry about 

immigration status.” Id. at 641 (quotation marks omitted). 

We held that “the failure of defense counsel to warn a 

defendant that a plea would make the defendant eligible for 

removal is a constitutional defect in representation that 

satisfies the first prong of the Strickland test.” Id. at 641.

Unlike defense counsel in Padilla and Orocio, Fazio’s 

plea counsel did inform him that there “could be immigration

consequences,” App. 105, to pleading guilty. He conducted a 

“careful and thorough” review of the plea agreement with 

Fazio, including a review of the provision explaining the 

possible immigration consequences of Fazio’s plea. Yet plea 
12

counsel did not inform Fazio that the plea made him subject 

to automatic deportation, as is required under Padilla in cases 

like Fazio’s where the immigration consequences of a guilty 

plea are clear.2 While Fazio’s plea counsel stated that it 

would be more likely than not that Fazio could remain in the 

United States, it is clear that Fazio was subject to automatic 

removal as a result of his plea.

However, we need not reach the issue of whether 

Fazio’s plea counsel’s advice constituted deficient 

performance under Strickland. Any error in that advice was 

remedied by the District Court’s in-depth colloquy and the 

language of the plea agreement itself, and so Fazio was not 

prejudiced.3

In United States v. Shedrick, the defendant’s plea 

agreement stated that his maximum potential sentence was 

ten years of imprisonment and that his actual sentence would 

be left to the discretion of the court after both he and the 

Government had an opportunity to argue “the applicability of 

any other provision of the Sentencing Guidelines, including . . 

. adjustments and departures.” 493 F.3d 292, 295 (3d Cir. 

2007). At the plea colloquy, the district court repeated that 

 

2

In Orocio, counsel told the defendant that he did not have to 

worry about immigration consequences at all. We therefore 

did not need to reach the distinction drawn in Padilla between 

what is required in cases where the immigration 

consequences of a plea are clear (accurate advice) and what is 

required in cases where those consequences are unclear 

(advice that there is a risk of such consequences). Here, the 

Government does not contest that it was clear that Fazio’s 

plea made him subject to automatic deportation. Instead, the 

Government emphasizes that there was some possibility that 

Fazio’s guilty plea would not actually lead to his removal due 

to an intervening change in law or the grant of an S visa.

3 Fazio’s claim of prejudice is further undermined by the fact 

that he did not testify at the evidentiary hearing in the District

Court. In the absence of such testimony, there is little 

affirmative evidence in the record that he would have rejected 

the plea had his attorney fully informed him of its 

immigration consequences.
13

Shedrick’s maximum sentence under the plea agreement was 

ten years and that his actual sentence would be determined by 

the court. Id. at 295–96. At sentencing, the court ultimately 

granted the Government’s request for a four-level 

enhancement and eight-level departure due to certain 

characteristics of Shedrick’s offense. Id. at 297. Shedrick 

received a sentence of 96 months of imprisonment followed 

by three years of supervised release. Id.

He later filed a motion pursuant to 28 U.S.C. § 2255, 

alleging ineffective assistance of counsel during the plea 

process for defense counsel’s “failure to advise him about a 

potential enhancement or upward departure at sentencing.” Id.

at 299. We noted that “all that the law requires is that the 

defendant be informed of his/her exposure in pleading 

guilty,” and that it “does not require that a defendant be given 

a reasonably accurate ‘best guess’ as to what his/her actual 

sentence will be.” Id. at 299 (quoting United States v. 

Mustafa, 238 F.3d 485, 492 n.5 (3d Cir. 2001)). Shedrick 

was therefore entitled only to know that his maximum 

possible sentence was ten years. We explained that “an 

erroneous sentencing prediction by counsel is not ineffective 

assistance of counsel where . . . an adequate plea hearing was 

conducted.” Id. We held that any erroneous sentencing 

information allegedly provided by counsel was therefore

“corrected by the written plea agreement and the detailed incourt plea colloquy,” both of which made clear that his 

maximum possible sentence was ten years. Id. at 300. 

Shedrick was entitled to know his exposure in pleading guilty 

and he received that information, at least in the plea colloquy 

and plea agreement, if not also from defense counsel.

Fazio was entitled to be “advised . . . that his 

conviction for drug distribution made him subject to 

automatic deportation.” Padilla, 559 U.S. at 360. This risk 

was made clear in both his plea agreement and during the plea 

colloquy. The plea agreement stated that Fazio 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.” Supp. App. 3. During the 

plea colloquy, the District Court inquired of Fazio that, 

“knowing this [risk], do you nevertheless want to plead guilty 

regardless of any immigration consequences that your plea of 
14

guilty may entail, even if the consequence is your automatic 

removal from the United States?” App. 23. Fazio responded 

affirmatively. 

Like in Shedrick, any possible error in plea counsel’s 

advice to Fazio was cured by the plea agreement and at the 

plea colloquy. Both made clear that Fazio was willing to 

plead guilty even if that plea would lead to automatic 

deportation, fulfilling the requirement that Fazio be informed 

of this risk under Padilla. Cf. Fed. R. Crim. P. 11(b)(1)(O) 

(requiring the court at a plea colloquy to inform and 

determine whether a defendant understands “that, if 

convicted, a defendant who is not a United States citizen may 

be removed from the United States, denied citizenship, and 

denied admission to the United States in the future”). We 

hold that Fazio did not suffer prejudice as a result of any 

deficient performance by his counsel during the plea process 

and, therefore, Fazio is not entitled to relief on his ineffectiveassistance-of-counsel claim. We further hold that 

enforcement of the collateral-attack waiver in Fazio’s plea 

agreement would not constitute a miscarriage of justice. We 

perceive no error in the District Court’s enforcement of that 

waiver. 

IV.

For the reasons stated above, we will affirm the 

judgment of the District Court.