FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,  No. 09-50580

Plaintiff-Appellee, D.C. No.

v.  3:09-cr-01776-

DMS-1 JOSE ANGEL DELGADO-RAMOS,

Defendant-Appellant. OPINION 

Appeal from the United States District Court

for the Southern District of California

Dana M. Sabraw, District Judge, Presiding

Submitted March 9, 2011*

Pasadena, California

Filed April 7, 2011

Before: Pamela Ann Rymer, Consuelo M. Callahan, and

Sandra S. Ikuta, Circuit Judges.

Per Curiam Opinion;

Concurrence by Judge Rymer

*The panel unanimously concludes this case is suitable for decision

without oral argument. See Fed. R. App. P. 34(a)(2). 

4721
COUNSEL

Lynn H. Ball, San Diego, California, for defendant/appellant

Jose Delgado-Ramos.

Aaron B. Clark, Assistant United States Attorney, San Diego,

California, for plaintiff/appellee United States.

OPINION

PER CURIAM:

[1] Jose Delgado-Ramos appeals his conviction for

attempted entry after deportation, see 8 U.S.C. § 1326(a)-(b),

on the ground that the district court failed to inform him of the

immigration consequences of his plea during the plea colloquy. Delgado entered his plea without the benefit of a plea

agreement. Because Padilla v. Kentucky, 130 S. Ct. 1473

(2010), was decided after he was sentenced, Delgado did not

UNITED STATES v. DELGADO-RAMOS 4723
raise a Padilla argument to the district court. Therefore, our

review is for plain error. See United States v. Vonn, 535 U.S.

55, 63 (2002); United States v. Recio, 371 F.3d 1093, 1100

(9th Cir. 2004). Under this standard, a defendant must show

that: (1) the district court committed an error; (2) the error

was plain; (3) the error affected his substantial rights; and (4)

the error “seriously affect[s] the fairness, integrity or public

reputation of judicial proceedings.” Recio, 371 F.3d at 1100

(alteration in original) (quoting United States v. Olano, 507

U.S. 725, 736 (1993)) (internal quotation marks omitted). In

order to demonstrate that a non-structural error in a plea proceeding affected his “substantial rights,” a defendant must

“show a reasonable probability that, but for the error, he

would not have entered the plea.” United States v. Dominguez

Benitez, 542 U.S. 74, 83 (2004).

[2] In United States v. Amador-Leal, 276 F.3d 511 (9th

Cir. 2002), we held that Rule 11 and due process do not

require a district court to inform a defendant of the immigration consequences of his plea. Id. at 517. Delgado argues,

however, that the Supreme Court’s recent decision in Padilla

“casts doubt” on the continued force of Amador-Leal and

requests that we remand this case to the district court so that

he “can plead anew.”

For a three-judge panel to hold that an intervening Supreme

Court decision has “effectively overruled” circuit precedent,

the intervening decision must do more than simply “cast

doubt” on our precedent. Rather, it must “undercut the theory

or reasoning underlying the prior circuit precedent in such a

way that the cases are clearly irreconcilable.” Miller v. Gammie, 335 F.3d 889, 900 (9th Cir. 2003) (en banc). That high

standard is not met here.

I

We have historically applied different tests for a defendant

seeking to withdraw a guilty plea based on a due process vio4724 UNITED STATES v. DELGADO-RAMOS
lation and a defendant seeking to withdraw a guilty plea based

on ineffective assistance of counsel. See Torrey v. Estelle, 842

F.2d 234, 235-37 (9th Cir. 1988). 

“Due process . . . require[s] that a defendant’s guilty plea

be voluntary and intelligent.” Id. at 235 (citing Boykin v. Alabama, 395 U.S. 238, 242 (1969)). A guilty plea can be voluntary even “if the defendant did not correctly assess every

relevant factor entering into his decision,” Brady v. United

States, 397 U.S. 742, 757 (1970), so long as it is “entered by

[a defendant] fully aware of the direct consequences” of his

plea, id. at 755 (quoting Shelton v. United States, 246 F.2d

571, 572 n.2 (5th Cir. 1957) (en banc)). Thus, we have held

that a court conducting a plea colloquy must advise the defendant of the “direct consequences of his plea,” but “need not

advise him of ‘all the possible collateral consequences’ ” of

the plea. Torrey, 842 F.2d at 235 (quoting United States v.

King, 618 F.2d 550, 552 (9th Cir. 1980)).

In Fruchtman v. Kenton, 531 F.2d 946 (9th Cir. 1976), in

response to a defendant’s claim that his guilty plea was not

“voluntary” because the district court failed to inform him of

the immigration consequences of his plea, we held that the

risk of deportation is a collateral consequence of a guilty plea

and thus that the court’s failure to advise the defendant of that

risk did not violate Rule 11. See id. at 949. In Amador-Leal,

the defendant claimed a due process violation on the same

ground we had rejected in Fruchtman, i.e., the district court’s

failure to inform him of the immigration consequences of the

plea, but argued that Fruchtman was no longer good law

because AEDPA rendered the immigration consequences of a

guilty plea virtually “automatic.” Amador-Leal, 276 F.3d at

516. We again rejected this argument, holding that “[w]hat

renders the plea’s immigration effects ‘collateral’ is not that

they arise ‘virtually by operation of law,’ but the fact that

deportation is ‘not the sentence of the court which accept[s]

the plea but of another agency over which the trial judge has

no control and for which he has no responsibility.’ ” Id. at 516

UNITED STATES v. DELGADO-RAMOS 4725
(second alteration in original) (quoting United States v. Gonzalez, 202 F.3d 20, 27 (1st Cir. 2000), abrogated on other

grounds by Padilla, 130 S. Ct. 1473). Amador-Leal thus reaffirmed our longstanding rule that a district court has no obligation under Rule 11 and due process to advise a defendant

of the immigration consequences of his plea. See id.

[3] In contrast, we assess a defendant’s claim that an attorney’s advice in the plea context constituted ineffective assistance of counsel under the test set forth in Strickland v.

Washington, 466 U.S. 668 (1984), and Hill v. Lockhart, 474

U.S. 52 (1985). Under Strickland, we ask whether counsel’s

advice regarding the plea “was within the range of competence demanded of attorneys in criminal cases,” Torrey, 842

F.2d at 237 (internal quotation marks omitted) (quoting Hill,

474 U.S. at 56)), and whether the defendant was prejudiced

by counsel’s deficient performance, id. In this context, we

held that an attorney’s failure to advise a defendant of the collateral consequences of a plea (including immigration consequences) did not amount to ineffective assistance of counsel.

United States v. Fry, 322 F.3d 1198, 1200 (9th Cir. 2003).

II

[4] The defendant in Padilla raised an ineffective assistance of counsel claim, not a due process claim. 130 S. Ct. at

1478. In Padilla, the Court considered whether a defense

attorney who fails to advise a client that his plea carries a risk

of deportation has rendered ineffective assistance of counsel

under the Sixth Amendment. See id. at 1486-87. The Kentucky court in that case had rejected Padilla’s Strickland claim

“on the ground that the advice he sought about the risk of

deportation concerned only collateral matters” because, in the

state court’s view, “collateral consequences are outside the

scope of representation required by the Sixth Amendment.”

Id. at 1481 (internal quotation marks omitted) (quoting Commonwealth v. Padilla, 253 S.W.3d 482, 483-84 (Ky. 2008)).

In disagreeing with this approach, the Court pointed out that

4726 UNITED STATES v. DELGADO-RAMOS
it had “never applied a distinction between direct and collateral consequences to define the scope of constitutionally ‘reasonable professional assistance’ required under Strickland,”

id., and held that the distinction was “ill-suited to evaluating

a Strickland claim concerning the specific risk of deportation,” id. at 1482; see also id. at 1483 (“[P]reserving the client’s right to remain in the United States may be more

important to the client than any potential jail sentence.” (quoting INS v. St. Cyr, 533 U.S. 289, 323 (2001))).

Turning to the merits of Padilla’s ineffective assistance of

counsel claim, the Court applied Strickland, focusing on

whether “prevailing professional norms” require attorneys to

advise their clients regarding the risk of deportation. Id. at

1482. After reviewing a wide range of guidelines enunciating

performance standards for lawyers, the Court concluded that

“[t]he weight of prevailing professional norms supports the

view that counsel must advise her client regarding the risk of

deportation.” Id. Noting the importance of immigration issues

to a typical client, and that the immigration consequences in

Padilla’s case should have been clear to the attorney, the

Court concluded that the defendant had “sufficiently alleged

constitutional deficiency to satisfy the first prong of Strickland,” id. at 1483, and remanded to the state court to determine prejudice, id. at 1487.

[5] Because the defendant in Padilla raised only a Sixth

Amendment claim, the Court had no occasion to consider the

scope of a district court’s obligation under Rule 11, whether

a defendant’s due process rights are violated if the court fails

to inform him of the immigration consequences of his plea, or

the continued viability of the distinction between direct and

collateral consequences in the due process context (which

traces back to Brady’s statement that a plea is voluntary so

long as a defendant is informed of the direct consequences of

the plea). Rather, the Court indicated only that where the

immigration consequences of a plea are clear, an attorney’s

failure to provide such information falls below professional

UNITED STATES v. DELGADO-RAMOS 4727
norms, see id. at 1486, and therefore failure to advise a defendant of the immigration consequences of a plea can constitute

a Sixth Amendment violation under some circumstances, see

id. at 1486-87. While Padilla’s holding is directly applicable

to our Sixth Amendment analysis in Fry, it sheds no light on

the obligations a district court may have under Rule 11 and

due process. Accordingly, we cannot say that Padilla “undercut[s] the theory or reasoning underlying” our decision in

Amador-Leal “in such a way that the cases are clearly irreconcilable.” See Miller, 335 F.3d at 900. Because Amador-Leal

remains the law of the circuit, the district court did not err in

failing to advise Delgado of the immigration consequences of

his plea. See Recio, 371 F.3d at 1100. Furthermore, because

Delgado does not assert on appeal that he would not have

entered the plea “but for the [district court’s alleged] error,”

he has not demonstrated the “probability of a different result”

and thus cannot show that the district court’s action affected

his “substantial rights.” Dominguez Benitez, 542 U.S. at 83.

AFFIRMED.

RYMER, Circuit Judge, concurring in the judgment:

Without expressing an opinion on the effect, if any, of

Padilla v. Kentucky, 130 S. Ct. 1473 (2010), on United States

v. Amador-Leal, 276 F.3d 511 (9th Cir. 2002), I would affirm

because on the facts in this case, there is no way that

Delgado-Ramos can show prejudice. See United States v.

Dominguez Benitez, 542 U.S. 74, 83 (2004).

4728 UNITED STATES v. DELGADO-RAMOS