United States Court of Appeals

for the Fifth Circuit

No. 20-50481

United States of America, 

Plaintiff—Appellee,

versus

Antonio Maurice Gardner, 

Defendant—Appellant.

Appeal from the United States District Court

for the Western District of Texas

USDC No. 6:18-CR-330-1

Before Higginbotham, Stewart, and Wilson, Circuit Judges.

Patrick E. Higginbotham, Circuit Judge:

Antonio Maurice Gardner entered a plea of guilty without filing a 

motion to suppress the evidence against him. The district court, without an 

evidentiary hearing, denied his motion to withdraw his plea. We hold that 

Gardner alleged sufficient facts to require a hearing upon the motion to 

withdraw, and if granted, his motion to suppress. We vacate and remand.

United States Court of Appeals

Fifth Circuit

FILED

October 6, 2021

Lyle W. Cayce

Clerk

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I

In November 2018, Gardner was indicted on a single count of 

possession with intent to distribute a mixture or substance containing a 

detectable amount of methamphetamine.1 He retained counsel Jason Bailey 

and pleaded guilty before a magistrate judge on March 12, 2019, without a 

plea agreement.

Three months later, on June 12, 2019, the probation officer filed 

Gardner’s initial presentence report (PSR), and the district court set 

sentencing for July 18, 2019. On the day of sentencing, Bailey orally moved 

for a continuance to file objections to the PSR, which the district court 

granted.

Less than a week later, Gardner, pro se, moved to appoint new 

counsel, saying that he felt misled by Bailey because Bailey previously told 

him that objections to the PSR had been filed. As will become plain, it is 

significant that Gardner then also asserted that Bailey gave him inconsistent 

information as to the availability of audio or video footage of the search that 

led to his arrest, leaving him unsure of “what to believe.” About a week later, 

Bailey moved to withdraw, citing “[i]rreconcilable differences” between 

himself and Gardner. On August 6, 2019, the court granted Bailey’s motion 

to withdraw and appointed new counsel, Christopher Bullajian, in his place. 

With Gardner’s sentencing set to occur just two days after his 

appointment, Bullajian moved for a continuance, which the district court 

granted, delaying sentencing until September 19, 2019. On September 9, 

2019, Bullajian moved for a second continuance, explaining that two recent 

felony trials had prevented him from effectively consulting with Gardner.

1 See 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C).

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The district court granted the continuance and set sentencing for October 31, 

2019. On October 25, 2019, Bullajian moved again for a continuance, seeking 

“additional time to review discovery to effectively represent [Gardner].” 

The district court granted the motion and set sentencing for December 5, 

2019. On November 22, 2019, Bullajian moved for a fourth continuance, 

explaining that it had taken him “substantial” time to become familiar with 

the facts of the case and that he now understood that Gardner “wishe[d] to 

withdraw his guilty plea based o[n] his desire to file a motion to suppress that 

his former attorney did not file.” Bullajian sought a continuance to explore 

these issues and evaluate Gardner’s likelihood of success in pursuing a pleawithdrawal motion. The district court granted the motion and set sentencing 

for March 5, 2020. 

On February 25, 2020, Gardner, through his new counsel Bullajian,

moved to withdraw his guilty plea. He alleged that his plea was not voluntarily 

made due to the ineffectiveness of former counsel Bailey. In support of this 

allegation, Gardner claimed that the controlled substances seized from his 

house were the product of an improperly executed “knock and talk”; that he

told Bailey he wanted to file a suppression motion because it would end the 

Government’s case against him, but Bailey told him “that a motion to 

suppress would be filed after the entering of the plea.” In short, that he 

wagered a plea of guilty “with the full understanding from his attorney that a 

motion to suppress would be forthcoming.” Gardner explained that he 

continued to ask Bailey about filing a motion to suppress, but when Bailey 

finally told him that moving was no longer an option, he then moved to 

appoint new counsel. Given these circumstances, Gardner argued that he had 

demonstrated a “fair and just reason for withdrawing his plea.”

A defendant entering an unconditional plea, as Gardner did, waives

his rights to challenge his conviction, including any violations of the Fourth 

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Amendment.2 However, the Federal Rules of Criminal Procedure provide 

that a defendant may, with the court and government’s consent, instead 

enter a conditional plea which “reserve[s] in writing the right to have an 

appellate court review an adverse determination of a specified pretrial 

motion. A defendant who prevails on appeal may then withdraw the plea.”3

The district court denied the motion to withdraw the plea the next 

day, without a response from the Government and without an evidentiary 

hearing, eventually sentencing Gardner to 240 months’ imprisonment and 

six years’ supervised release. Gardner seeks remand to the district court for 

an evidentiary hearing, arguing that the district court abused its discretion by 

ruling on his motion to withdraw his plea without one, depriving him of the 

opportunity to pursue his suppression motion.4

II

We review the district court’s decision not to hold an evidentiary 

hearing for an abuse of discretion.5 A district court may abuse its discretion 

2 Fed. R. Crim. P. 11(b)(1)(N).

3 Fed. R. Crim. P. 11(a)(2).

4 Gardner alternatively asks us to conclude that his plea was rendered involuntary 

due to counsel’s ineffective assistance and to reverse the district court’s denial of his pleawithdrawal motion. But “[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 is 

sufficiently developed to allow us to evaluate the claim on its merits.” United States v. 

Villegas-Rodriguez, 171 F.3d 224, 230 (5th Cir. 1999).

5 United States v. Powell, 354 F.3d 362, 370 (5th Cir. 2003).

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in declining to hold a hearing on a motion when a defendant “alleges 

sufficient facts which, if proven, would justify relief.”6

A defendant may withdraw a guilty plea after the court accepts the 

plea, but before it imposes a sentence, if he “can show a fair and just reason 

for requesting the withdrawal.”7In determining whether a defendant has 

shown a “fair and just” reason for withdrawal, the district court must 

examine the totality of the circumstances, informed by the factors set forth 

in United States v. Carr.

8 These include: (1) whether the defendant asserted 

actual innocence; (2) whether withdrawal of the plea would prejudice the 

government; (3) the extent of the defendant’s delay, if any, in filing the 

motion to withdraw; (4) whether withdrawal would substantially 

inconvenience the court; (5) whether the defendant was benefitted by the 

close assistance of counsel; (6) whether the guilty plea was knowing and 

voluntary; and (7) the extent to which withdrawal would waste judicial 

resources.9 The district court can, but is not required to, make specific 

findings in denying a defendant’s plea-withdrawal motion.10

Although the record before us is limited, it appears that some of these 

factors could be seen to weigh against Gardner. Yet the near eight-month

delay between the appointment of Gardner’s new counsel and his withdrawal 

motion are the result of his new counsel, who was put to trial in other courts.

11

6

Id. (internal quotation marks and citation omitted).

7 Fed. R. Crim. P. 11(d)(2).

8

740 F.2d 339, 343–44 (5th Cir. 1984).

9

Id.

10 Powell, 354 F.3d 362 at 371.

11 See United States v. Lord, 915 F.3d 1009, 1014 (5th Cir. 2019) (collecting cases 

where “much shorter delays [than eight months] have been deemed unacceptable”).

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A defendant may offset his considerable delay by proffering “substantial 

reasons” for withdrawal.12 Gardner argues that he has met this high bar by 

alleging that his plea was involuntary due to ineffective assistance of counsel. 

Because a guilty plea requires the waiver of constitutional rights, it 

must be “voluntary, knowing, and intelligent.”13 “This requires that the 

defendant understand the nature of the charges against him, the 

consequences of his plea, and the nature of the constitutional protections that 

he is waiving.”14 “Where, as here, a defendant is represented by counsel 

during the plea process and enters his plea upon the advice of counsel, the 

voluntariness of the plea depends on whether counsel’s advice was within the 

range of competence demanded of attorneys in criminal cases.”15 We agree 

that here where delay is at the hands of appointed counsel called to trial in 

other cases, delays of a genre inherent in the dynamic of an active, well

moving docket, the delay ought not weigh heavily against the defendant. The 

district court abuses its discretion when it fails to permit a defendant to 

withdraw a plea rendered involuntary due to counsel’s ineffective 

assistance.16

12 See Carr, 740 F.2d at 344 (“[T]he longer a defendant delays in filing a withdrawal 

motion, the more substantial reasons he must proffer in support of his motion.”).

13 Lord, 915 F.3d at 1016 (citing Brady v. United States, 397 U.S. 742, 748 (1970)).

14 United States v. Strother, 977 F.3d 438, 445 (5th Cir. 2020) (citing United States 

v. Urias-Marrufo, 744 F.3d 361, 366 (5th Cir. 2014)).

15 Hill v. Lockhart, 474 U.S. 52, 56 (1985) (internal quotation marks and citation 

omitted); see also United States v. Rumery, 698 F.2d 764, 766 (5th Cir. 1983) 

(“[W]here . . . counsel has induced his client to plead guilty based on patently erroneous 

advice, we may find that the plea itself was involuntary and unknowing.”).

16 See Urias-Marrufo, 744 F.3d at 369 (concluding that a district court must permit 

a defendant to withdraw his plea upon finding it was involuntary due to counsel’s 

ineffective assistance under Padilla v. Kentucky, 559 U.S. 356 (2010)); United States v. 

McDonald, 416 F. App’x 433, 436 (5th Cir. 2011) (unpublished) (per curiam) (“Courts 

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Accordingly, we must consider whether Gardner sufficiently alleged 

facts demonstrating that counsel rendered ineffective assistance, such that 

he was entitled to an evidentiary hearing on his plea-withdrawal motion.17

Challenges to guilty pleas based on ineffective assistance of counsel must 

satisfy Strickland v. Washington’s two-part test:

18 (1) that “counsel’s 

representation fell below an objective standard of reasonableness,”19 and (2) 

that “counsel’s constitutionally ineffective performance affected the 

outcome of the plea process.”20 

As to counsel’s performance, Gardner alleged in his plea-withdrawal 

motion that his counsel advised him that he could file a suppression motion

after entering an unconditional guilty plea. It is well settled that an 

unconditional guilty plea ordinarily waives the right to challenge all nonjurisdictional defects in the trial court proceedings, including any objection 

to searches and seizures that violate the Fourth Amendment.

21 At the same 

must always be diligent to ascertain whether a plea of guilty was understandingly made, and 

when it appears before sentencing that such a plea was entered by a defendant 

who . . . acted as a result of mistake, it is an abuse of discretion not to permit the plea to be 

withdrawn.” (alteration in original) (quoting United States v. Pressley, 602 F.2d 709, 710–

11 (5th Cir. 1979))).

17 See Powell, 354 F.3d at 370.

18 Hill, 474 U.S. at 58 (citing Strickland v. Washington, 466 U.S. 668 (1984)).

19 Id. at 57 (internal quotation marks and citation omitted).

20 Id. at 59 (“In other words, in order to satisfy the ‘prejudice’ requirement, the 

defendant must show 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.”).

21 United States v. Cothran, 302 F.3d 279, 286 (5th Cir. 2002); see also Tollett v. 

Henderson, 411 U.S. 258, 267 (1973) (concluding that when defendant enters an 

unconditional guilty plea, “he may not thereafter raise independent claims relating to the 

deprivation of constitutional rights that occurred prior to the entry of the guilty plea. He 

may only attack the voluntary and intelligent character of the guilty plea by showing that 

the advice he received from counsel was not within” professional standards).

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time, the Federal Rules of Criminal Procedure clearly lay out the method for 

entering a conditional plea. Any contrary advice as to the effect of an 

unconditional plea offered by Gardner’s counsel was not “within the range 

of competence demanded of attorneys in criminal cases” as it did not account 

for the potential of a conditional plea.22 Therefore, Gardner’s allegations 

satisfy Strickland’s performance prong.

As for prejudice, Gardner argued that he would not have pleaded

guilty had he known that he was waiving his right to file a motion to suppress, 

believing that his suppression motion would eviscerate the Government’s 

case against him.23 While we cannot from our perch evaluate the merits of 

this allegation, it satisfies Strickland’s prejudice prong, if true.24

Because Gardner’s motion alleged facts sufficient to justify relief

under Strickland and its progeny, the district court abused its discretion by 

summarily denying his motion without a hearing.25 To the extent the 

Government suggests that Gardner’s colloquy with the magistrate judge 

22 See Hill, 474 U.S. at 57 (internal quotation marks and citation omitted); 

McDonald, 416 F. App’x at 436 (unpublished) (per curiam) (concluding that defendant 

satisfied Strickland’s performance prong by demonstrating that counsel advised him that 

he would be able to challenge a non-jurisdictional defect following his unconditional plea); 

see also Anaya v. Lumpkin, 976 F.3d 545, 552 (5th Cir. 2020) (recognizing that unreasonable 

performance under Strickland often arises when counsel is “ignoran[t] of a point of law” 

(quoting Hinton v. Alabama, 571 U.S. 263, 274 (2014))). 

23 “It was based on [counsel’s erroneous] advice, that the Defendant decided to 

enter his plea of guilty.”

24 See Hill, 474 U.S. at 59; United States v. Cavitt, 550 F.3d 430, 441 (5th Cir. 2008) 

(determining that defendant’s allegations satisfied Strickland’s prejudice prong where he 

claimed that he would not have pleaded guilty had he known he could file a viable 

suppression motion); McDonald, 416 F. App’x at 436 (concluding that defendant satisfied 

Strickland’s prejudice prong by demonstrating that he would have not pleaded guilty had

he been correctly informed of the consequences of an unconditional plea).

25 See Powell, 354 F.3d at 370. 

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during the plea hearing ultimately evidences the voluntariness of his plea, we 

disagree.26 It is the “critical obligation of counsel”—not the court—“to 

advise the client of the advantages and disadvantages” of pleading guilty.27

Regardless, nothing in that colloquy is in tension with Gardner’s 

understanding that his counsel could thereafter move to suppress.28

Counsel’s failure to meet this obligation “cannot be saved by a plea 

colloquy.”29

We vacate the district court’s denial of Gardner’s plea-withdrawal 

motion and remand for an evidentiary hearing before our able district judge.

26 Gardner indicated some initial confusion over what he was admitting to during 

the plea colloquy:

Magistrate: Have you read this indictment?

Gardner: Yes, sir.

Magistrate: Do you agree that it’s a true and accurate summary of the 

facts that the government would prove beyond a 

reasonable doubt?

Gardner: Um.

Magistrate: With respect to the quantity of drugs, I assume you might 

have a disagreement with respect to that; but other than 

that, is that what you did, sir?

Gardner: Yes, sir.

27 Padilla v. Kentucky, 559 U.S. 356, 370 (2010) (internal quotation marks and 

citation omitted).

28 See Fed. R. Crim. P. 11(b).

29 See. Urias-Marrufo, 744 F.3d at 369.

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