### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

No. 11-50717

UNITED STATES OF AMERICA, Plaintiff–Appellee
v. CONG VAN PHAM, Defendant–Appellant

Appeals from the United States District Court for the Western District of Texas

Before WIENER, DENNIS, and OWEN, Circuit Judges. WIENER, Circuit Judge: Cong Van Pham ( “Pham”) appeals the denial of his § 2255 m otion in which he asserted ineffective assistance of counsel based on his lawyer’s failure to consult with him about filing a direct appeal of his sentence. W e c o nclude that Pham reasonably e xpressed an interest in an appeal immediately after he was sentenced, which triggered counsel’s duty t o consult. We reverse and remand to give Pham an opportunity to file a direct appeal. I. Facts & Proceedings Pham is a r efugee from Vietnam, speaks n o English, and, until t he events leading to this appeal, had no criminal record. W h e n h i s w ife was diagnosed with a brain tumor, Pham b e g a n cultivating marijuana to r aise money for her U n i t e d S t a te s C o u rt o f A p p e al s

F i f t h C i rc u i t 

### F I L E D J uly 8, 2013 Ly l e W . Cay ce Clerk Case: 11-50717 Document: 00512299694 Page: 1 Date Filed: 07/08/2013No. 11-50717

medical treatment. T he government f o u n d o v e r s e v e n h u n dr e d m a r i j u a n a plants in Pham ’ s “ g r o w house” and charged h im with o ne count of manufacturing a controlled substance. Because of the large number o f his m arij u a n a plants, Pham faced a mandatory minimum sentence of five years. At all times, Pham communicated with counsel and the district court through a translator. Pham pleaded guilty pursuant to a plea agreement. T h e a greement (1) contained an appeal waiver, (2) disclai m e d a ny a greement “concerning any possible sentence,” and (3) authorized the government to file a § 5K1.1 motion for a downward d eparture i f it concluded that Pham had provided substantial assistance. Before Pham signed the plea agreement, h is counsel e x p l a i ned its terms to him, i ncluding the appeal waiver. Counsel a lso informed Pham that he would likely receive the mandatory mi n i m u m s entence unless he fully cooperated with the government. Counsel knew that, d espite his admonitions, Pham continued to h ope for a sentence of probation so t hat he could care for his wife. The probation office calcula t e d Pham’s Guidelines range to be 30 to 37 months but recommended the five-year s tatutory mandatory minimum. It declined to recommend eligibility for the § 5 C1.2 s afety valve, which, i f accepted by the court, would have nullified t he mandatory m i nimum, because the government did not b elieve Pham’ s c laims that he had acted alone, thus negating § 5C1.2(a)(5)’s req u i r e m e n t of full disclosure. Pham met all other requirements of the safety-valve provision. At sentencing, Pham’s counsel argued fo r a p p lication of the s afety valve to bypass the mandatory minimum sentence a nd for a departure downward to

a term of probation only because Pham’s wife and c hildren needed his care. The government reiterated t hat it did not believe Pham had been truthful about acting a lone and therefore did not move for a §5K1.1 downward departure. The

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district c ourt concluded that Pham did not qualify for the safety valve and

s e n tenced him to the statutory mandatory minimum of five y e a r s ’ i m p r i s o n m e n t

. Through an interpreter, Pham spoke with his counsel immediately after sentencing. We recite the nature and content of t hat conversation in light of the district court’s credibility findings, which are supported by the record and which Pham does not challenge on appeal. When sentenced, Pham was visibly upset at receiving a prison sentence instead of pro b a t i o n ; h e said that a prison sentence would kill his wife, who relied on his care; and, w hile his wife cried nearby, Pham spoke with his counsel a nd “brought up that h e was concerned about getting 60 m onths and wanted t o do s omething to get less time.” Counsel
respo n d e d t o Pham that if he would cooperate with the government, h e might receive a reduced sentence p ursuant to Federal Rule of Criminal Procedure 35. A t n o point after s entencing, however, did counsel m ention or discuss t h e possibility of a direct appeal, and no notice of appeal was filed. Pham later filed a § 2255 h abeas corpus petition to vacate his sentence,

c ontending that counsel w as constitutionally ineffective b ecause he fa i l e d t o consult with Pham about an appeal after he w a s s e ntenced. The magistrate judge h eld a n evidentiary hearing, assessed witness credibi l i t y, and recommended denying the petition. The d istrict c o u r t o verruled Pham’s objections to that recommendation, denied his petition, and denied a certificate of appealability. We granted such a certificate on “whether t h e d i s t r ict court

was correct in d etermining that Pham’s counsel was not i neffe c t i v e b ecause counsel did not consult with him about filing a direct appeal.” II. Analysis A. Standard of Review

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We review de novo a district court’s conclusions on a § 2255 p etition based

on ineffective assistance of c ounsel. 1 We review findings of fact for clear error. 2 B. Applicable Law The Sixth Amendment g uarantees “reas o n ab l y e f f e c t iv e” l e g a l assistance. 3 To show ineffe c t i v e assistance, the t w o -prong Strickland test requires a defendant to show that (1) counsel’s represent a tion fell below an objective standard of reasonableness , and ( 2 ) s uch deficient p erformance prejudiced the defendant. 4 I n Roe v . Flores-Ortega , the Supreme Court elucidated how the Strickland test applies in the context of counsel’s failure t o file an appeal “when the defendant has not clearly conveyed h is wishes [ regarding an a ppeal] one way or the other.” 5 Under Flores-Ortega , the first Strickland p r ong begins with the question whether counsel “consulted” with the d efendant rega r d i ng an appeal. 6

“ C o n s u l t ing” is a term of a rt that means “advising the d efendant about the advantages and d isadvantage s o f t a king an appeal, and m aking a reasonable effort t o discover the defendant’s wishes.” 7 “If counsel has consulted with the defendant, the questi o n o f d eficient performance is easily answered: Counsel

1 U ni ted Sta tes v . M

ol i na - U ri be , 429 F. 3d 514, 518 ( 5th Cir. 2005)

.
2 Id.

3 See U ni ted Sta tes v . Stri ckl a nd , 466 U

. S. 668, 687- 88 (1984)

.
4 Roe v . Fl ores- O rtega , 528 U

. S. 470, 476- 77 (2000)

.
5 Id. at 477.

6 See i d. at 478.

7 Id. 4 Case: 11-50717 Document: 00512299694 Page: 4 Date Filed: 07/08/2013No. 11-50717

performs in a professionally unreasonable manner only by failing to follow the defendant’s express instructions with respect to an appeal.” 8 If, however, c ounsel failed to consult w ith the defendant about an appeal, then the question is whether that failure was unreasonable because it breached the duty to consult. “[C]ounsel has a constit u t i o n a l ly imposed d uty to consult with the defendant about an appeal when t here is reason t o think either (1) that

a rational defendant w ould w ant to a p peal (for example, because there are nonfrivolous grounds for appeal), or (2) that this particular d e fendant reas o nably demonstrated to counsel that he was interested in appealing.” 9 The existence of

a duty t o consult is asse s s e d i n light of “ all the information c o unsel knew or should have known.” 1 0 Whether the conviction followed a trial or a g uilty plea is “highly relevant,” although not determinative, as i s whether th e d e f endant waived his r ight to ap p e a l and whether he received a sentence for which he bargained. 1 1 The Supreme Court predicted t hat district courts would find a duty to consult “in the vast majority of cases.” 1 2 Finally, under Flores-Ortega , a defendant satisfies the second Strickland prong if he shows “that there is a reasonable probability that, but for counsel’s deficient failure to consult with him abou t a n a p p e al, he would h ave timely appealed.” 1 3 T he defendant does not have to show that “his hypothetical appeal

8 Id.

9 Id. at 480.

1 0 Id.

1 1 Id.

1 2 Id. at 481.

1 3 Id. at 484. 5 Case: 11-50717 Document: 00512299694 Page: 5 Date Filed: 07/08/2013No. 11-50717

might have had merit.” 1 4 This second-prong prejudice test “applies even where a defendant has waived his right to direct appeal and collateral review.” 1 5 C. Analysis The result of the first step in the Flores-Ortega reasonableness a nalysis is clear on these facts: Pham’s counsel did not sufficiently consult w ith him about filing an appeal. At most, Pham’ s c o u n s e l d iscussed an appeal i n the abstract and even then did so o nly b efore the sent e n ce was pronounced. But after sentencing, when the sentence actually imposed became k nown and the time period for filing a n otice of appeal began to run, counsel neither mentioned the possibility of an appeal at all nor made any e ffort to discover Pham’s wishes in that regard. 1 6 By p roceeding to consider whether Pham’s counsel had a duty to consult under Flores-Ortega ’s second s tep, t h e district court implicitly held that Pham’s counsel failed to consult with h im about an a p peal i n any m eaningful
way. With t hat established, we next assess whether counsel’s failure to consult breached a constitutional duty. Pham contends t hat he reasonably demonstrated to counsel that he was interested in appealing, thus giving rise to counsel’s duty to consult. 1 7 We have had few opportunities to address just how

a defendant may reasonabl y d emonstrate to counsel his interest in a ppealing.

1 4 See i d. at 486.

1 5 U ni ted Sta tes v . Ta

p p , 491 F. 3d 263, 266 ( 5th Cir. 2007)

.
1 6 We d o not m ean to im p os e a “m echanical rule” that cons ultation mus t alw ays f ollow s entencing. We can im agine circum s tances in w hich the bulk of a cons titutionally s atis f actory cons ultation about an ap peal w ill neces s arily p reced e s entencing, perhap s in connection w ith a R ule 11( c) ( 1) ( C) p lea agreem ent that red uces any uncertainty in the Guid elines calculation o r s entence. In this cas e, how ever, couns el’s curs ory d is cus s ion bef ore s entencin g d i d n o t com p ens ate f

or the com p lete f

ailure to m ention the p os s ibility of ap p eal a f t er s entencing.

1 7 See F l ores- O rtega , 528 U

. S. at 480. H e d oes not contend that a rational d ef end ant in his p os ition w ould have w anted to f ile an ap p eal. 6 Case: 11-50717 Document: 00512299694 Page: 6 Date Filed: 07/08/2013No. 11-50717

In U nited States v. Casarez , an u n published opinion, we held with little elaboration that c ounsel had n o duty to consult when the defendant “was upset about sentencing matters before a nd after the sentencing hearing, [but] did not express to counsel any interest in a p p e a l i n g the sentence” in subsequent conversations. 1 8 O ther circuits have required more o f defendants than “merely expressing u nhappiness at a sentencing h earin g , ” 19 a nd h ave found a duty of counsel to consult w ith the defendant about an a p p eal “usually because the defendant said something to his counsel indicating that he had an interest in appealing.” 2 0 Thus, courts h a v e f ound a duty to consult when, for example, a defendant who received consecutive s e n t e n c es a sked “‘about having time run together,’” 2 1 and when a defendant asked a fter sentencing “what’s next? What can we do now?” 2 2 With those cases in m i nd, we turn to t he discrete facts of this appeal. P h a m ’ s counsel knew that Pham had hoped to r e ceive a s entence of proba t i o n only. When that hope did n ot materialize, a visibly u pset Pham “brought up that he was concer n ed about getting 60 months and wanted to do something to get less time.” This was ample demonstration of Pham’s interest in doing s omething to change the outcome of his sentencing thr o u gh additional proceedings. We ho l d t h a t t his statement to c ounsel, when viewed in context, was enough to trigger counsel’s constitutional duty to consult with Pham about an appeal. In concluding o ther w i s e , the d istrict court misconstrued the facts and placed too much weight on marginally relevant factors. The d i strict court erred

1 8 304 F. Ap p ’x 325, 325 ( 5th Cir. 2008)

.
1 9 See Ja ckson v . Att’y G en. of N ev . , 268 F. Ap p ’x 615, 620 ( 9th C ir. 2008)

.
2 0 See U ni ted Sta tes v . Coop er , 617 F. 3d 307, 313 ( 4th Cir. 2010) ( em phas is ad d ed)

.
2 1 See Fraz er v . South C a rol i na , 430 F. 3d 696, 702, 712 (4th Cir. 2005)

.
2 2 See Pa la ci os v. U

ni ted Sta tes , 453 F. Ap p ’x 887, 889 ( 11th Cir. 2011)

.

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first when it concluded that Pham’s post-sentencing statement demonstrated interest in a Rule 35 sentence reduction but n ot i n an appeal. We disagree that

a lay defendant, particularly one who speaks no E nglish, must i n c ant the magic word “appeal” to trigger counsel’s duty to a d v i se him about one. 2 3 Just as i t is
p a r t of counsel’s duty to recognize when a r ational defendant would want to appeal, so too i s it part of h i s d u t y to recognize when, however inartfully or inarticulately, h is client demonstrates an interest in an appeal. If, in this instance, it was counsel’s p r o f e s s i o n a l opinion that a R ule 3 5 motion w ould be

a better option than an a p p e a l , he should have gi ven that advice o nly after consulting with Pham about his options; counsel’s profess i o n a l opinion eschewing appeal does not excuse failure to consult altogether. 2 4 Second, a lthough Pham’s guilty plea a nd appeal w a iver are relevant factors under the Flores-Ortega a nalysis, t he district c ourt m isconstrued their significance in this case. A guilty plea is relevant because it “ may i ndicate that the defendant seeks a n end to judicial proceedings.” 2 5 But P ham’s desire to avoid

a trial cannot be i nterpreted to mean that he would a ccept any s entence imposed; it certainly d oes not change the una m b i g u o us import of his post2 3 Cf

. Pa l a ci o s , 4 5 3 F. Ap p ’x at 889 ( f ind ing d uty to cons ult becaus e d ef end ant as k ed “What can w e d o now ?”)

.

2 4 Cf

. Thom p son v . U

ni t ed Sta tes , 504 F. 3d 120 3 , 1 2 0 7 ( 11th Cir. 2007) ( “Sim p ly as s erting the view that an ap p eal w ould not be s ucces sf ul d oes not cons titute ‘cons ultation’ in any m eaningf

ul sens e. ”)

. Neither can w e agree w ith the d is trict court’s reas oning that Pham ’s s p ecif ic d es ire to serve les s tim e d id not give ris e to a d uty f o r c ouns el to cons ult about an ap p eal becaus e an ap p eal w ould not have red uced his s entence and could have increas ed it. Firs t, an ap p eal of a s entence p lainly can res ult in a red uced s entence on rem and ; f or exam p le, in this cas e, a s ucces s f

ul ap p eal of the d is trict court’s s af ety- valve find ing w ould have byp as s ed the m and atory m ini m um on res entencing. Second , it is d if f icult to s ee in this cas e how an ap p eal, s ucces s f

ul or otherw is e, w ould have res ulted in a hars her sentence; Pham ’s G uid elines range w as ap p roxim ately half of the m and atory minim um . And even if there w ere s uch a ris k , that is a top ic that s hould have been ad d res s ed during the co n s u l t a t i o n, not an excus e to f orego it.

2 5 Fl ores- O rtega , 528 U

. S. at 480 ( em p has is ad ded)

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sentencing statements and demeanor. Neither is the appeal waiver in his plea agreement dispositive. 2 6 The guilty plea and appeal waiver might have limited Pham’s appellate options, but they did not relieve counsel of the d uty to consult about those options once Pham had reasonably demonstrated his interest in an appeal. Third, the d istrict court drew a number of incorrect legal conclusions and factual inferences. For example, the court erroneously stated that “Pham received the 60-month sentence he b argained f or a s part of t he plea agreement.” Sixty months was the statutory minimum, and, perhaps Pham should even have expected that sentence, but he did not bargain for it with the government. The district court al s o f ound s i gnificant that Pham’s reason for wanting

a shorter sentence w as b e cause his children are young and his wife is ill, not because he p e rceived any legal or factual error in the s ente nce imposed. This might be highly relevant as to whether a rational defendant with a non-frivolous basis would want t o appeal, but it is minimally relevant t o what t his particular defendant actual l y demonstrated to counsel. 2 7 And the district court erred by
p l a c i n g any significant w eight on the fact t h at Pham did not demonstrate a n interest in an appeal before he was sentenced. Although h is chances might be viewed as s lim, P ham could have qualified for the safety valve o r a § 5K1.1 downward departure, which i n turn could have a ccomplis h ed his desire not to

serve prison t ime and thereby pretermit any n eed to appeal. Thus, Pham had

no reason to demonstrate an interest to a ppeal a sentence that had not yet been imposed.

2 6 See i d. ( lis ting ap peal w aiver as a relevant f actor to be cons id ered )

2 7 The d is trict court’s reas oning als o s eem s circular. It w as the f a i l ure t o consul t that d ep rived Pham of any inf orm ation about the p otential availability or m erits of ap p eal, s o the lack of that inf

orm ation cannot be us ed to jus tif y the very f

ailure to cons ult that dep rived him of it. 9 Case: 11-50717 Document: 00512299694 Page: 9 Date Filed: 07/08/2013No. 11-50717

In sum, Pham’s p ost-sentencing s ta t e m e n t to counsel and his demeanor

w h e n u t t e ri n g i t reasonably demonstrated his interest in appealing his sentence , such that c o u n s e l had a duty to consult w ith Pham about an appeal. We can identify no factors that take this case out of the “vast majority” in which counsel has a d uty to consult. 2 8Because counsel failed to consult with his client about

an appeal, counsel’s p erformance was o bjecti v e l y u n reasonable under FloresOrtega

. The s e cond Strickland prong—prejudice—is even more easily r esolved. The district c ourt m a de n o findings as to prejudice and the government did not brief prejudice on appeal. In the absence of any self-evident reason why Pham would not have filed a direct a p p e a l , and without any regard to t he p otential merits of such an appeal, we conclude that he has established prejudice under Flores-Ortega

. 2 9 III. Conclusion Pham has shown that he was prejudiced by his counsel’s constitutionally i n e f f e c t i v e failure to consult with h im about an appeal. Accordingly, w e REVERSE the district court’s denial of Pham’s § 2 255 motion and REMAND to the district court “with instructions to d ismiss without prejudice that part of the § 2255 motion for which the out-of-time appeal was granted, to grant an out-oftime appeal, and to reinstate the criminal judgment on the docket.” 3 0

2 8 Id. at 481.

2 9 See i d. at 484, 486.

3 0 See U ni ted Sta tes v . West , 240 F. 3d456, 462 ( 5th C ir. 2001)

. 10 Case: 11-50717 Document: 00512299694 Page: 10 Date Filed: 07/08/2013