IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 13-50085

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

ANA VICTORIA URIAS-MARRUFO,

Defendant-Appellant.

Appeal from the United States District Court 

for the Western District of Texas

Before DAVIS, GARZA and DENNIS, Circuit Judges.

W. EUGENE DAVIS, Circuit Judge:

Defendant Ana Victoria Urias-Marrufo (“Urias”) appeals from the 

district court’s denial of her motion to withdraw her guilty plea. Following 

that denial, the district court entered a final judgment of conviction and 

sentenced her to imprisonment of 37 months. We vacate and remand.

I.

Urias has lived in Odessa, Texas since 1993. She is not a citizen of the 

United States but obtained permanent resident status in 1996 when she was 

eight years old. On January 12, 2012, she was indicted with five other 

individuals for possession with intent to distribute 100 kilograms or more of 

marijuana in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. She was 

United States Court of Appeals

Fifth Circuit

FILED

February 28, 2014

Lyle W. Cayce

Clerk

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initially represented by Raymond Fivecoat, but the court granted a motion to 

substitute counsel on February 2, 2012, substituting Laura Carpenter for 

Fivecoat. On March 1, 2012, she pled guilty before a magistrate judge 

pursuant to a written plea agreement. The district court adopted the 

magistrate judge’s recommendation and accepted the plea on April 4, 2012.

Following the entry of her guilty plea but prior to sentencing, Urias

obtained new counsel, Steve Spurgin, and the district court granted Urias’s 

second motion to substitute counsel on May 16, 2012. Two days later, she 

filed a motion to withdraw her guilty plea under Fed. R. Crim. P. 11, based 

primarily on Padilla v. Kentucky, 559 U.S. 356 (2010), arguing that she 

received ineffective assistance of counsel under the Sixth Amendment which 

precluded her from making a knowing and voluntary guilty plea under Rule 

11. Specifically, in a handwritten statement made under penalty of perjury 

and in her testimony at the hearing on her motion to withdraw, she claimed 

that neither Fivecoat nor Carpenter informed her that her guilty plea would 

subject her to certain deportation. She asserted that if she had known for 

sure at the time she pled guilty that she would be deported as a result, she 

would not have entered the guilty plea.

The district court denied the motion at the hearing and issued a 

memorandum order afterward. In short, the district court found that, under 

the totality of the circumstances, including the factors set out in United States 

v. Carr, 740 F.2d 339 (5th Cir. 1984), Urias should not be permitted to 

withdraw her guilty plea under Rule 11. The district court reasoned that 

although Urias claimed that her first two attorneys had not informed her of 

certain immigration consequences under Padilla, that issue pertained only to 

a collateral attack under 28 U.S.C. § 2255 for ineffective assistance of counsel 

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and could not be addressed on direct appeal on a motion to withdraw her guilty 

plea. Thus, the district court denied the motion and subsequently sentenced 

her to 37 months in prison. She now appeals the district court’s denial of her 

motion to withdraw her guilty plea.

II.

We have jurisdiction over this timely criminal appeal under 28 U.S.C. 

§ 1291. We review the district court’s denial of Urias-Marrufo’s motion to 

withdraw her guilty plea for an abuse of discretion.1 “A district court abuses 

its discretion if it bases its decision on an error of law or a clearly erroneous 

assessment of the evidence.”2

III.

Urias argues that the district court abused its discretion when it denied 

her motion to withdraw her guilty plea. There is no absolute right for a 

defendant to withdraw a plea.3 However, a defendant may withdraw a guilty 

plea after the district court has accepted it but prior to sentencing it if she “can 

show a fair and just reason for requesting the withdrawal.”4 In our review of 

the denial of a motion to withdraw a guilty plea, this court employs the sevenfactor Carr test: 

(1) whether or not the defendant has asserted his 

innocence; (2) whether or not the government would 

suffer prejudice if the withdrawal motion were 

granted; (3) whether or not the defendant has delayed 

in filing his withdrawal motion; (4) whether or not the 

1 United States v. Grant, 117 F.3d 788, 789 (5th Cir. 1997 (citing United States v. Henderson, 

72 F.3d 463, 465 (5th Cir. 1995)).

2 United States v. Mann, 161 F.3d 840, 860 (5th Cir. 1998).

3 United States v. Lampazianie, 251 F.3d 519, 523–24 (5th Cir. 2001).

4 FED. R. CRIM. P. 11(d)(2)(B).

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withdrawal would substantially inconvenience the 

court; (5) whether or not close assistance of counsel 

was available; (6) whether or not the original plea was 

knowing and voluntary; and (7) whether or not the 

withdrawal would waste judicial resources . . . .5

We also consider, where applicable, “the reasons why a defendant delayed in 

making his withdrawal motion.”6 The above factors are non-exclusive, and we 

ultimately examine the totality of the circumstances.7

The district court found that each of the seven Carr factors weighed 

against granting Urias’s motion to withdraw. Although Urias discusses all of 

the factors on appeal, her primary argument focuses on two factors in 

particular. We find at the outset that the district court did not abuse its broad 

discretion with respect to its findings on the other five factors, and we turn our 

attention to her critical points. She claims that the district court abused its 

discretion because (a) she did not have close assistance of counsel at the time 

the plea was made, and (b) her plea was not knowing and voluntary because 

she had ineffective assistance of counsel under Padilla because she was not 

informed prior to her guilty plea that she would definitely be deported as a 

consequence of pleading guilty. Although Urias’s brief conflates these two 

factors, they are distinct and must be addressed separately.

IV.

Determining whether Urias received close assistance of counsel 

“requires a fact-intensive inquiry.”8 This inquiry is distinct from whether she 

5 Carr, 740 F.2d at 343–44 (footnotes omitted).

6 Id. at 344.

7 Id. (citing United States v. Morrow, 537 F.2d 120, 146 (5th Cir. 1976).

8 United States v. McKnight, 570 F.3d 641, 646 (5th Cir. 2009).

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received effective assistance of counsel.9 Ineffective assistance is a basis for 

invalidating a conviction under the Sixth Amendment and is not, strictly 

speaking, relevant to the decision of whether Defendant was denied close 

assistance of counsel under Carr analysis. 10 In Carr, for example, the 

defendant argued that the district court abused its discretion in denying his 

motion to withdraw his guilty plea because his trial counsel failed to inform 

the defendant of a potential defense to the charge against him. 11 The 

evidence, on the other hand, showed that the defendant’s attorney closely 

assisted the defendant by (1) informing him of potential conflicts of interest, 

(2) negotiating a favorable plea agreement with the government, and (3) 

questioning defendant about his reliance on the advice of previously retained 

counsel with regards to tax matters.12 We held in Carr that the defendant 

had received close assistance of “highly effective counsel.”13

At the plea hearing before the magistrate judge, Urias testified that she 

had discussed with her attorney the possible adverse immigration 

consequences of pleading guilty to a felony offense. She acknowledged she 

understood that, by pleading guilty, she “may be deported and removed from 

the United States, [and] that [she] might never be permitted to enter or reside 

in the United States lawfully” again. Nevertheless, Urias chose to continue 

with her guilty plea. 

9 Id.

10 Id.

11 Carr, 740 F.2d at 342-43. See also McKnight, 570 F.3d 641, 646 (5th Cir. 2009) 

(summarizing the close-assistance analysis in Carr).

12 Id.

13 Carr, 740 F.2d at 345. 

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The record in this case reflects that counsel at the plea hearing for Urias 

did not file any substantive motions, but this is not dispositive. As stated 

earlier, a district court abuses its discretion if it denies a defendant’s motion to 

withdraw a guilty plea based on an error of law or “a clearly erroneous 

assessment of the evidence.”14 Urias’s statements before the magistrate judge 

provide a sufficient basis for the district court to find that close assistance of 

counsel was available to Urias. Thus, the district court’s finding was not 

clearly erroneous and does not amount to an abuse of discretion.

V.

We next look to whether Urias’s guilty plea was knowing and voluntary, 

which is inextricably tied to her ineffective assistance of counsel claim under 

the Sixth Amendment. We reiterate that there is a significant distinction 

between close assistance of counsel under Carr’s Rule 11 analysis and Sixth 

Amendment effective assistance of counsel under Strickland v. Washington, 

466 U.S. 668 (1984) and its progeny, including Padilla. Counsel’s assistance 

may be close without being effective.

To enter a knowing and voluntary guilty plea, the defendant must have 

a “full understanding of what the plea connotes and of its consequence.”15 The 

defendant must have notice of the nature of the charges against her, she must 

understand the consequences of her plea, and must understand the nature of 

the constitutional protections she is waiving. 16 For a guilty plea to be 

voluntary, it must “not be the product of ‘actual or threatened physical harm, 

or . . . mental coercion overbearing the will of the defendant’ or of state-induced 

14 Mann, 161 F.3d at 860.

15 Boykin v. Alabama, 395 U.S. 238, 244 (1969). 

16 Matthew v. Johnson, 201 F.3d 353, 365 (5th Cir. 2000).

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emotions so intense that the defendant was rendered unable to weigh 

rationally his options with the help of counsel.” 17 The crux of Urias’s 

argument is that she did not enter her guilty plea knowingly because she had 

ineffective assistance of counsel and was not sufficiently informed of the 

consequences of her plea. Thus, in Urias’s view, she should have been allowed 

to withdraw her plea on direct appeal rather than wait until a collateral attack 

to do so, and the district court erred in not addressing it.

Claims for ineffective assistance of counsel are analyzed under the 

Supreme Court’s two-prong Strickland test, which first asks whether 

“counsel’s representation ‘fell below an objective standard of 

reasonableness.’”18 Next, it asks “whether ‘there is a reasonable probability 

that, but for counsel’s unprofessional errors, the result of the proceeding would 

have been different.’”19 Padilla broke new ground by applying the Strickland

test in a new context: counsel’s advice regarding deportation.20

In Padilla, the Supreme Court announced for the first time that defense 

counsel has an obligation under the Sixth Amendment to inform his noncitizen 

client “that the offense to which he was pleading guilty would result in his 

removal from this country.”21 The Court defined the scope of this duty as 

follows:

When the law is not succinct and straightforward . . . , 

a criminal defense attorney need do no more than 

17 Id. (quoting Brady v. United States, 397 U.S. 742, 750 (1970)).

18 Padilla, 559 U.S. at 366 (quoting Strickland, 466 U.S. at 688).

19 Id. (quoting Strickland, 466 U.S. at 694).

20 Chaidez v. United States, 133 S. Ct. 1103, 1108-10, 185 L. Ed. 2d 149 (2013).

21 Id. at 360; see also id. at 367 (“We conclude that advice regarding deportation is not 

categorically removed from the ambit of the Sixth Amendment right to counsel.”)

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advise a noncitizen client that pending criminal 

charges may carry a risk of adverse immigration 

consequences. But when the deportation consequence 

is truly clear, as it was in this case, the duty to give 

correct advice is equally clear.22

Thus, Padilla focuses on the first prong of the Strickland test, the 

reasonableness of counsel’s representation. The Supreme Court cautioned 

that a defendant seeking to invoke the rule of Padilla would still have to prove 

the Strickland test’s much more difficult second prong, i.e., convince the 

district court “that a decision to reject the plea bargain would have been 

rational under the circumstances.”23

Padilla was decided in a collateral proceeding, not a direct criminal 

appeal, but the new duty it imposed on defense counsel under the Sixth 

Amendment raises concerns which a court should address sooner rather than 

later if clearly presented in a direct proceeding. Urias’s combining a Rule 11 

issue (whether her guilty plea was knowing and voluntary) with a Sixth 

Amendment issue (whether she received effective assistance of counsel) is a bit 

unusual in this circuit, but it is not forbidden. “The general rule in this circuit 

is that a claim of ineffective assistance of counsel cannot be resolved on direct 

appeal when the claim has not been before the district court since no opportunity 

existed to develop the record on the merits of the allegation.” 24 More 

specifically, “[w]e do not review a claim of ineffective assistance of counsel on 

direct appeal unless the district court has first addressed it or unless the record 

22 Id. at 369. 

23 Id. at 372 (citing Roe v. Flores–Ortega, 528 U.S. 470, 480, 486 (2000)).

24 United States v. London, 568 F.3d 553, 562 (5th Cir. 2009) (emphasis added).

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is sufficiently developed to allow us to evaluate the claim on its merits.”25 

(Most sister circuits similarly permit ineffective assistance of counsel claims 

on direct appeal when appropriately presented. 26 ) Thus, there is no 

impediment under this circuit’s precedent to our reviewing Urias’s Padilla

claim if the district court addressed it or if the record is sufficiently developed 

to address the merits on appeal.

Urias clearly presented her Padilla claim below as a claim for ineffective 

assistance of counsel under the Sixth Amendment, and she re-urges that claim 

on appeal. Urias correctly argues that, under Padilla, she was required to be 

25 United States v. Villegas–Rodriguez, 171 F.3d 224, 230 (5th Cir. 1999) (addressing the 

merits of an ineffective assistance claim even though it was raised for the first time because 

the record was sufficiently developed); see also United States v. McDonald, 416 F. App'x 433, 

436 (5th Cir. 2011) (addressing the merits of an ineffective assistance of counsel claim on 

direct appeal where the district court had misapplied Strickland to the facts presented in 

sworn affidavits by the defendant and his counsel).

26 See, e.g., United States v. Pellerito, 878 F.2d 1535, 1537-38 (1st Cir. 1989) (applying twostep Strickland analysis to withdrawal of a guilty plea for ineffective assistance of counsel to 

require defendant to show both that the representation “fell below an objective level of 

reasonableness” and that prejudice would have resulted, i.e., that the defendant “would not 

have pleaded guilty and would have insisted on going to trial” if not for the unreasonable 

representation); United States v. Arteca, 411 F.3d 315, 319-20 (2d Cir. 2005) (similar); United 

States v. Jones, 336 F.3d 245, 254 (3d Cir. 2003) (“’[A] narrow exception to the rule that 

defendants cannot attack the efficacy of their counsel on direct appeal’ exists ‘[w]here the 

record is sufficient to allow determination of ineffective assistance of counsel.’” (quoting

United States v. Headley, 923 F.2d 1079, 1083 (3d Cir. 1991))); United States v. Wynn, 663 

F.3d 847 (6th Cir. 2011), cert. denied, 132 S. Ct. 1949, 182 L. Ed. 2d 803 (2012) (“’[O]rdinarily 

we will not review a claim of ineffective assistance of counsel on direct appeal because the 

record is usually insufficient to permit an adequate review of such a claim.’ An exception 

exists, however, when ‘the record is adequately developed to allow the court to properly assess 

the merits of the issue.’” (citations omitted)); United States v. Lundy, 484 F.3d 480, 484 (7th 

Cir. 2007) (“Ineffective assistance of counsel can render a plea agreement involuntary, and is 

therefore a valid basis for withdrawing a guilty plea.” (citing Hill v. Lockhart, 474 U.S. 52, 

57 (1985), and United States v. Wallace, 276 F.3d 360, 366 (7th Cir. 2002)); United States v. 

Cruz, 643 F.3d 639, 642 (8th Cir. 2011) (applying Strickland analysis); and United States v. 

Hamilton, 510 F.3d 1209, 1213 (10th Cir. 2007) (applying rule similar to Villegas–Rodriguez, 

Jones, and Wynn, supra).

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advised of the certain deportation consequences of her plea prior to her plea 

hearing.27

In this case Urias presented testimony in a handwritten statement 

subject to perjury and at the hearing on her motion to withdraw her plea that 

she was never informed by counsel prior to entering her guilty plea that she 

would certainly be deported. Specifically, she claimed that her original 

attorney, Fivecoat, did not advise her that she was subject to mandatory 

deportation as a result of the plea. She claimed that Fivecoat knew that she 

was a non-citizen and told her only that her bond would be denied because of 

her resident status. She also claimed she had not talked to Carpenter until 

the day she entered her guilty plea, and Carpenter did not advise her that she 

would definitely be deported as a consequence of pleading guilty.

Urias testified that she did not become concerned about her immigration 

status until after entering her guilty plea, when she spoke to “one of the girls 

I have in the tank,” who asked her whether her charge was a deportable 

offense. She claimed that she told her mother, but when her mother asked 

Carpenter about the immigration effects, Carpenter did not know because she 

was not an immigration lawyer. Finally, Urias asserted in her handwritten 

statement: “If I had known for sure at the time I [pled] guilty that I would get 

deported after I [serve] my sentence, I would not [have] said guilty.”

Thus, the district court had before it facts which, if true, would entitle 

Urias to relief under Padilla. The district court concluded, however, that the 

duty established in Padilla to specifically warn of immigration consequences 

certain to occur applied only to habeas claims for ineffective assistance of 

27 559 U.S. at 369.

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counsel under 28 U.S.C. § 2255, and not in the context of the withdrawal of a 

guilty plea. Thus, the court reasoned, the distinction between possible and 

certain immigration consequences only matters in claims for ineffective 

assistance of counsel in a collateral attack, as in Padilla. The district court 

found it sufficient, absent the Sixth Amendment considerations required by 

Padilla, that Urias was made aware of the possible immigration consequences 

of her plea, as evidenced by her colloquy with the magistrate judge during the 

plea hearing, and therefore she had knowingly and voluntarily entered her 

guilty plea.

We find that the district court erred in concluding that it could not, under 

Fifth Circuit law, address Urias’s Padilla claim. Urias presented her Padilla

claim as clearly as possible to the district court as well as facts which, if true, 

would support her claim. The district court, having already been in charge of 

the case and familiar with Urias, the lawyers, and any other relevant actors, 

was in the best position to evaluate Urias’s credibility compared to a later court 

in a habeas proceeding, and it would have added little or no burden to the 

district court’s docket. Indeed, the district court received Urias’s sworn 

statement and heard her testimony at the motion to withdraw her plea. The 

court made no findings on these facts with respect to the Padilla claim only 

because it erroneously declined to address that claim.

Padilla, which announced a new, clearly defined, and relatively limited 

duty for criminal defense attorneys, concerns a narrow factual inquiry 

compared to most Strickland claims: whether the defendant was informed by 

defendant’s counsel of certain immigration consequences, and whether 

prejudice resulted therefrom. It is counsel’s duty, not the court’s, to warn of 

certain immigration consequences, and counsel’s failure cannot be saved by a 

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plea colloquy.28 Thus, it is irrelevant that the magistrate judge asked Urias 

whether she understood that there might be immigration consequences and 

that she and her attorney had discussed the possible adverse immigration 

consequences of pleading guilty.

We hold that when a Padilla claim is sufficiently presented during a 

motion to withdraw a plea, both legally and factually, a district court errs in 

failing to address the claim. Moreover, if the court finds that a Padilla

violation occurred, that finding compels the court to permit the defendant to 

withdraw the guilty plea.

Here, we note that the court indicated at the hearing on the motion to 

withdraw that it found at least some of Urias’s explanations incredible with 

respect to her other Rule 11 claims. Because the district court did not make 

factual findings on the Padilla claim specifically, however, we vacate and 

remand for the district court to address the merits of that claim. On remand, 

the district court has discretion to hold an additional evidentiary hearing but 

is not required to do so. The district court’s findings of fact are entitled to 

great deference, and we neither upset any of the district court’s prior findings 

of fact nor mandate a particular result on remand. We remand only for the 

district court to consider additional evidence if needed and, for the first time, 

address Urias’s squarely presented Padilla claim.

28 See Marroquin v. United States, 480 F. App'x 294, 299 (5th Cir. 2012) (Dennis, J., 

concurring) (“[T]he judicial plea colloquy is no remedy for counsel's deficient performance in 

fulfilling these obligations.”).

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VI. 

Accordingly, we vacate and remand for further proceedings consistent 

with this opinion.

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EMILIO M. GARZA, Circuit Judge, specially concurring:

The majority holds that a district court must consider a Padilla claim 

that is sufficiently presented, both legally and factually, as part of a Rule 11 

motion to withdraw a plea. In other words, Padilla is not relegated to 

collateral proceedings. Ante at 12. I join this holding in full. However, I read 

the majority only to hold that Urias’s claim—that her attorney did not advise 

her of the certainty of deportation—must be reviewed under Rule 11, not that 

Padilla requires counsel to advise that deportation is a certain consequence of 

a guilty plea. 

The scope of the duty established in Padilla v. Kentucky, 559 U.S. 356 

(2010), is unclear. The Court initially states, “we agree . . . that 

constitutionally competent counsel would have advised [Padilla] that his 

conviction for drug distribution made him subject to automatic deportation.” 

Id. at 360. This seems to suggest that “certainty” would be the requisite 

advice. However, the most definite statement of the Court’s holding is this: 

“We now hold that counsel must inform her client whether his plea carries a 

risk of deportation.” Id. at 374. This, on the other hand, suggests that advice 

about “risk” is sufficient to discharge counsel’s duty. 

Our circuit has subsequently described the Padilla holding thusly: “[T]he 

Supreme Court held . . . that the Sixth Amendment imposes on attorneys 

representing noncitizen criminal defendants a constitutional duty to advise the 

defendants about the potential removal consequences arising from a guilty 

plea.” United States v. Amer, 681 F.3d 211, 212 (5th Cir. 2012) (emphasis 

added). And, in the most recent pronouncement from the Supreme Court, the 

Padilla holding was restated as follows: “We held that criminal defense 

attorneys must inform non-citizen clients of the risks of deportation rising from 

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guilty pleas.” Chaidez v. United States, 133 S. Ct. 1103, 1106 (2013) 

(emphasis added). Neither Chaidez nor Amer indicates that counsel is 

obligated under the Sixth Amendment to explain that deportation is “certain” 

to result from a guilty plea.1 

The scope of the Padilla duty is an open question, which need not be 

resolved in this appeal. The sole question before us is whether the district 

court erred in determining that Padilla was inapplicable in the Rule 11 

context. This can be answered without determining that Padilla required 

Urias’s counsel to warn that deportation was “certain.” Because we vacate 

and remand for further proceedings, namely consideration of Padilla in a new 

Rule 11 decision, I would leave the interpretation and application of Padilla to 

the district court in the first instance. 

1 In United States v. Bonilla, the Ninth Circuit determined that a “criminal defendant who 

faces almost certain deportation is entitled to know more than that it is possible that a guilty 

plea could lead to removal; he is entitled to know that it is a virtual certainty.” 637 F.3d 

980, 984 (9th Cir. 2011). However, Bonilla does not contemplate, much less resolve, the 

internal tension in Padilla, discussed above. Accordingly, the case is not a particularly 

persuasive precedent. 

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