IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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 motion 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. We conclude that

Pham reasonably expressed an interest in an appeal immediately after he was

sentenced, which triggered counsel’s duty to consult. We reverse and remand to

give Pham an opportunity to file a direct appeal.

I. Facts & Proceedings

Pham is a refugee from Vietnam, speaks no English, and, until the events

leading to this appeal, had no criminal record. When his wife was diagnosed

with a brain tumor, Pham began cultivating marijuana to raise money for her

United States Court of Appeals

Fifth Circuit

F I L E D

July 8, 2013

Lyle W. Cayce

Clerk

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medical treatment. The governmentfound over seven hundred marijuana plants

in Pham’s “grow house” and charged him with one count of manufacturing a

controlled substance. Because of the large number of his marijuana 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. The agreement (1)

contained an appeal waiver, (2) disclaimed any agreement “concerning any

possible sentence,” and (3) authorized the government to file a § 5K1.1 motion

for a downward departure if it concluded that Pham had provided substantial

assistance. Before Pham signed the plea agreement, his counsel explained its

terms to him, including the appeal waiver. Counsel also informed Pham that he

would likely receive the mandatory minimum sentence unless he fully

cooperated with the government. Counsel knew that, despite his admonitions,

Pham continued to hope for a sentence of probation so that he could care for his

wife.

The probation office calculated Pham’s Guidelines range to be 30 to 37

months but recommended the five-year statutory mandatory minimum. It

declined to recommend eligibility for the § 5C1.2 safety valve, which, if accepted

by the court, would have nullified the mandatory minimum, because the

government did not believe Pham’s claims that he had acted alone, thus

negating § 5C1.2(a)(5)’s requirement of full disclosure. Pham met all other

requirements of the safety-valve provision.

At sentencing, Pham’s counsel argued for application of the safety valve

to bypass the mandatory minimum sentence and for a departure downward to

a term of probation only because Pham’s wife and children needed his care. The

government reiterated that it did not believe Pham had been truthful about

acting alone and therefore did not move for a §5K1.1 downward departure. The

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

sentenced him to the statutory mandatory minimum of five years’imprisonment.

Through an interpreter, Pham spoke with his counsel immediately after

sentencing. We recite the nature and content of that 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 probation; he said that a prison

sentence would kill his wife, who relied on his care; and, while his wife cried

nearby, Pham spoke with his counsel and “brought up that he was concerned

about getting 60 months and wanted to do something to get less time.” Counsel

responded to Pham that if he would cooperate with the government, he might

receive a reduced sentence pursuant to Federal Rule of Criminal Procedure 35. 

At no point after sentencing, however, did counsel mention or discuss the

possibility of a direct appeal, and no notice of appeal was filed.

Pham later filed a § 2255 habeas corpus petition to vacate his sentence,

contending that counsel was constitutionally ineffective because he failed to

consult with Pham about an appeal after he was sentenced. The magistrate

judge held an evidentiary hearing, assessed witness credibility, and

recommended denying the petition. The district court overruled Pham’s

objections to that recommendation, denied his petition, and denied a certificate

of appealability. We granted such a certificate on “whether the district court

was correct in determining that Pham’s counsel was not ineffective because

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 petition based

on ineffective assistance of counsel.1 We review findings of fact for clear error.2

B. Applicable Law

The Sixth Amendment guarantees “reasonably effective”legal assistance.3

To show ineffective assistance, the two-prong Strickland test requires a

defendant to show that (1) counsel’s representation fell below an objective

standard of reasonableness, and (2) such deficient performance prejudiced the

defendant.4In Roe v. Flores-Ortega, the Supreme Court elucidated how the

Strickland test applies in the context of counsel’s failure to file an appeal “when

the defendant has not clearly conveyed his wishes [regarding an appeal] one way

or the other.”5

Under Flores-Ortega, the first Strickland prong begins with the question

whether counsel “consulted” with the defendant regarding an appeal.6

“Consulting” is a term of art that means “advising the defendant about the

advantages and disadvantages of taking an appeal, and making a reasonable

effort to discover the defendant’s wishes.”7“If counsel has consulted with the

defendant, the question of deficient performance is easily answered: Counsel

1 United States v. Molina-Uribe, 429 F.3d 514, 518 (5th Cir. 2005).

2

Id.

3 See United States v. Strickland, 466 U.S. 668, 687-88 (1984).

4 Roe v. Flores-Ortega, 528 U.S. 470, 476-77 (2000).

5

Id. at 477.

6 See id. at 478.

7

Id.

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performs in a professionally unreasonable manner only by failing to follow the

defendant’s express instructions with respect to an appeal.”8

If, however, counsel failed to consult with 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 constitutionally imposed duty to consult

with the defendant about an appeal when there is reason to think either (1) that

a rational defendant would want to appeal (for example, because there are nonfrivolous grounds for appeal), or (2) that this particular defendant reasonably

demonstrated to counsel that he was interested in appealing.”9 The existence of

a duty to consult is assessed in light of “all the information counsel knew or

should have known.”10 Whether the conviction followed a trial or a guilty plea

is “highly relevant,” although not determinative, as is whether the defendant

waived his right to appeal and whether he received a sentence for which he

bargained.11 The Supreme Court predicted that district courts would find a duty

to consult “in the vast majority of cases.”12

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 about an appeal, he would have timely

appealed.”13 The defendant does not have to show that “his hypothetical appeal

8

Id.

9

Id. at 480.

10

Id.

11

Id.

12

Id. at 481.

13

Id. at 484.

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might have had merit.”14 This second-prong prejudice test “applies even where

a defendant has waived his right to direct appeal and collateral review.”15

C. Analysis

The result of the first step in the Flores-Ortega reasonableness analysis is

clear on these facts: Pham’s counsel did not sufficiently consult with him about

filing an appeal. At most, Pham’s counsel discussed an appeal in the abstract

and even then did so only before the sentence was pronounced. But after

sentencing, when the sentence actually imposed became known and the time

period for filing a notice of appeal began to run, counsel neither mentioned the

possibility of an appeal at all nor made any effort to discover Pham’s wishes in

that regard.16 By proceeding to consider whether Pham’s counsel had a duty to

consult under Flores-Ortega’s second step, the district court implicitly held that

Pham’s counsel failed to consult with him about an appeal in any meaningful

way. 

With that established, we next assess whether counsel’s failure to consult

breached a constitutional duty. Pham contends that he reasonably

demonstrated to counsel that he was interested in appealing, thus giving rise to

counsel’s duty to consult.17 We have had few opportunities to address just how

a defendant may reasonably demonstrate to counsel his interest in appealing. 

14 See id. at 486.

15 United States v. Tapp, 491 F.3d 263, 266 (5th Cir. 2007).

16 We do not mean to impose a “mechanical rule” that consultation must always follow

sentencing. We can imagine circumstances in which the bulk of a constitutionally satisfactory

consultation about an appeal will necessarily precede sentencing, perhaps in connection with

a Rule 11(c)(1)(C) plea agreement that reduces any uncertainty in the Guidelines calculation

or sentence. In this case, however, counsel’s cursory discussion before sentencing did not

compensate for the complete failure to mention the possibility of appeal after sentencing.

17 See Flores-Ortega, 528 U.S. at 480. He does not contend that a rational defendant

in his position would have wanted to file an appeal.

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In United States v. Casarez, an unpublished opinion, we held with little

elaboration that counsel had no duty to consult when the defendant “was upset

about sentencing matters before and after the sentencing hearing, [but] did not

express to counsel any interest in appealing the sentence” in subsequent

conversations.18 Other circuits have required more of defendants than “merely

expressing unhappiness at a sentencing hearing,”

19 and have found a duty of

counsel to consult with the defendant about an appeal “usually because the

defendant said something to his counsel indicating that he had an interest in

appealing.”20 Thus, courts have found a duty to consult when, for example, a

defendant who received consecutive sentences asked “‘about having time run

together,’”21

and when a defendant asked after sentencing “what’s next? What

can we do now?”22

With those cases in mind, we turn to the discrete facts of this appeal. 

Pham’s counsel knew that Pham had hoped to receive a sentence of probation

only. When that hope did not materialize, a visibly upset Pham “brought up that

he was concerned about getting 60 months and wanted to do something to get

less time.” This was ample demonstration of Pham’s interest in doing something

to change the outcome of his sentencing through additional proceedings. We

hold that this statement to counsel, when viewed in context, was enough to

trigger counsel’s constitutional duty to consult with Pham about an appeal. 

In concluding otherwise, the district court misconstrued the facts and

placed too much weight on marginally relevant factors. The district court erred

18

304 F. App’x 325, 325 (5th Cir. 2008).

19 See Jackson v. Att’y Gen. of Nev., 268 F. App’x 615, 620 (9th Cir. 2008).

20 See United States v. Cooper, 617 F.3d 307, 313 (4th Cir. 2010) (emphasis added).

21 See Frazer v. South Carolina, 430 F.3d 696, 702, 712 (4th Cir. 2005).

22 See Palacios v. United States, 453 F. App’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 not in an appeal. We disagree that

a lay defendant, particularly one who speaks no English, must incant the magic

word “appeal” to trigger counsel’s duty to advise him about one.23

Just as it is

part of counsel’s duty to recognize when a rational defendant would want to

appeal, so too is it part of his duty to recognize when, however inartfully or

inarticulately, his client demonstrates an interest in an appeal. If, in this

instance, it was counsel’s professional opinion that a Rule 35 motion would be

a better option than an appeal, he should have given that advice only after

consulting with Pham about his options; counsel’s professional opinion

eschewing appeal does not excuse failure to consult altogether.24

Second, although Pham’s guilty plea and appeal waiver are relevant

factors under the Flores-Ortega analysis, the district court misconstrued their

significance in this case. A guilty plea is relevant because it “may indicate that

the defendant seeks an end to judicial proceedings.”25 But Pham’s desire to avoid

a trial cannot be interpreted to mean that he would accept any sentence

imposed; it certainly does not change the unambiguous import of his post23 Cf. Palacios, 453 F. App’x at 889 (finding duty to consult because defendant asked

“What can we do now?”).

24 Cf. Thompson v. United States, 504 F.3d 1203, 1207 (11th Cir. 2007) (“Simply

asserting the view that an appeal would not be successful does not constitute ‘consultation’ in

any meaningful sense.”). Neither can we agree with the district court’s reasoning that Pham’s

specific desire to serve less time did not give rise to a duty for counsel to consult about an

appeal because an appeal would not have reduced his sentence and could have increased it.

First, an appeal of a sentence plainly can result in a reduced sentence on remand; for example,

in this case, a successful appeal ofthe district court’s safety-valve finding would have bypassed

the mandatory minimum on resentencing. Second, it is difficult to see in this case how an

appeal, successful or otherwise, would have resulted in a harsher sentence; Pham’s Guidelines

range was approximately half ofthe mandatory minimum. And even if there were such a risk,

that is a topic that should have been addressed during the consultation, not an excuse to

forego it.

25 Flores-Ortega, 528 U.S. at 480 (emphasis added).

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sentencing statements and demeanor. Neither is the appeal waiver in his plea

agreement dispositive.26 The guilty plea and appeal waiver might have limited

Pham’s appellate options, but they did not relieve counsel of the duty to consult

about those options once Pham had reasonably demonstrated his interest in an

appeal.

Third, the district 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 bargained for as part of the 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 also found significant that Pham’s reason for wanting

a shorter sentence was because his children are young and his wife is ill, not

because he perceived any legal or factual error in the sentence imposed. This

might be highly relevant as to whether a rational defendant with a non-frivolous

basis would want to appeal, but it is minimally relevant to what this particular

defendant actually demonstrated to counsel.27 And the district court erred by

placing any significant weight on the fact that Pham did not demonstrate an

interest in an appeal before he was sentenced. Although his chances might be

viewed as slim, Pham could have qualified for the safety valve or a § 5K1.1

downward departure, which in turn could have accomplished his desire not to

serve prison time and thereby pretermit any need to appeal. Thus, Pham had

no reason to demonstrate an interest to appeal a sentence that had not yet been

imposed.

26 See id. (listing appeal waiver as a relevant factor to be considered)

27 The district court’s reasoning also seems circular. It was the failure to consult that

deprived Pham of any information about the potential availability or merits of appeal, so the

lack of that information cannot be used to justify the very failure to consult that deprived him

of it.

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In sum, Pham’s post-sentencing statement to counsel and his demeanor

when uttering it reasonably demonstrated his interest in appealing his sentence,

such that counsel had a duty to consult with Pham about an appeal. We can

identify no factors that take this case out of the “vast majority” in which counsel

has a duty to consult.28 Because counsel failed to consult with his client about

an appeal, counsel’s performance was objectively unreasonable under FloresOrtega.

The second Strickland prong—prejudice—is even more easily resolved. 

The district court made no 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 appeal, and without any regard to the potential

merits of such an appeal, we conclude that he has established prejudice under

Flores-Ortega.

29

III. Conclusion

Pham has shown that he was prejudiced by his counsel’s constitutionally

ineffective failure to consult with him about an appeal. Accordingly, we

REVERSE the district court’s denial of Pham’s § 2255 motion and REMAND to

the district court “with instructions to dismiss 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.”30

28

Id. at 481.

29 See id. at 484, 486.

30 See United States v. West, 240 F.3d 456, 462 (5th Cir. 2001).

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