IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 13-40562

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee

v.

JORGE ROLANDO GARCIA, SR., 

 Defendant - Appellant

Appeals from the United States District Court

for the Southern District of Texas

USDC No. 7:10-CV-11

Before JOLLY and DENNIS, Circuit Judges, and REEVES,* District Judge.

PER CURIAM:**

In this § 2255 proceeding, Jorge Garcia raises a claim of ineffective 

assistance of counsel under the Sixth Amendment based on his trial counsel’s 

alleged failure to advise him about the consequences of proceeding to trial 

rather than pleading guilty. Without holding an evidentiary hearing, the 

district court denied the claim. Because there is a material fact-issue as to 

 

* District Judge of the Southern District of Mississippi, sitting by designation.

** Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not 

be published and is not precedent except under the limited circumstances set forth in 5th Cir. 

R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

July 21, 2015

Lyle W. Cayce

Clerk

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the advice, if any, provided to Garcia by his trial counsel, the record does not 

“conclusively show that [Garcia] is entitled to no relief.” See 28 U.S.C. § 

2255. Consequently, the district court abused its discretion in denying 

Garcia’s § 2255 motion without an evidentiary hearing. (“Unless the motion 

and the files and records of the case conclusively show that the prisoner is 

entitled to no relief, the court shall grant a prompt hearing thereon, 

determine the issues and make findings of fact and conclusions of law with 

respect thereto.”). 

We, therefore, VACATE the district court’s order denying Garcia’s § 2255 

motion and REMAND the case for further proceedings, including an 

appropriate hearing to resolve all material factual disputes related to Garcia’s 

claim.1 We express no view on the merits.

VACATED AND REMANDED.

 

1 We vacate only that portion of the district court’s order dealing with Ground 1 of 

Garcia’s § 2255 motion (i.e., the claim of ineffective assistance of counsel related to advising 

Garcia whether to plead guilty). 

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E. GRADY JOLLY, Circuit Judge, concurring:

Although Judge Dennis’s special concurrence makes the case for one side 

of the controversy, the Supreme Court has never decided whether there is a 

Sixth-Amendment right to having counsel effectively inform a defendant of the 

consequences of not entering an open guilty plea—i.e., cases where the 

defendant pleads guilty in the absence of a plea offer from the government. It 

is an open question. See, e.g., Missouri v. Frye, 132 S. Ct. 1399, 1405 (2012) 

(discussing communication of the terms of a formal plea offer); Lafler v. Cooper, 

132 S. Ct. 1376, 1387 (2012) (noting that Frye Court was not discussing 

scenarios where “no plea offer is made”). If this issue comes before the Court 

at a future time, the Court might find it helpful to consider both sides of the 

question, after counseled briefing and argument, and not necessarily rely on 

Judge Dennis’s special concurrence.

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JAMES L. DENNIS, Circuit Judge, concurring:

I concur in the court’s summary vacatur and remand, but I write 

separately to provide a fuller explanation for why I think appellant Jorge 

Rolando Garcia, Sr.’s claim has potential merit that the district court failed to 

notice.

Garcia was convicted of possession with intent to distribute marijuana 

and conspiracy to do the same and was sentenced to 235 months of 

imprisonment. He filed the present motion for habeas corpus under 28 U.S.C. 

§ 2255, claiming, as pertinent here, that his trial attorney failed to provide 

effective assistance of counsel under the Sixth Amendment in advising him on 

the question of whether to plead guilty. He contends, specifically, that his 

attorney did not advise him that, irrespective of any agreement with the 

government, if he pleaded guilty he would likely receive a sentencing reduction 

for acceptance of responsibility. See U.S.S.G. § 3E1.1. He further contends 

that, had he known of the potential reduction for accepting responsibility and 

been aware that he did not need the government’s consent to receive it, he 

would have pleaded guilty.

It is well established that criminal defendants are entitled under the 

Sixth Amendment to the effective assistance of counsel when considering how 

to plead. Missouri v. Frye, 132 S. Ct. 1399, 1405 (2012); Lafler v. Cooper, 132 

S. Ct. 1376, 1384 (2012); Padilla v. Kentucky, 559 U.S. 356, 364 (2010). To 

state a claim of the deprivation of effective assistance of counsel, the defendant 

must allege, first, that the representation of his attorney was deficient in that 

it fell below an objective standard of reasonableness and, second, that the 

deficient performance prejudiced him. Strickland v. Washington, 466 U.S. 668, 

687-88, 694 (1984).

If Garcia’s allegation is true, that his attorney did not advise him as to 

the potential for an acceptance-of-responsibility reduction, thus leaving him 

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with the belief that he had nothing to gain by pleading guilty, there can be 

little question that the attorney’s performance was deficient. See United States 

v. Grammas, 376 F.3d 433, 437 (5th Cir. 2004).

The next question is whether Garcia’s allegations suffice to state a claim 

of prejudice. Prejudice means “a reasonable probability that, but for counsel’s 

unprofessional errors, the results of the proceeding would have been different.” 

Strickland, 466 U.S. at 694. In the context of Garcia’s claim presented in this 

case, the question is whether there is a reasonable probability that, had Garcia 

been aware of the potential sentencing reduction for accepting responsibility, 

he would have admitted his criminal conduct and pleaded guilty, received the 

reduction, and, at the end of the day, received a sentence less than the one that 

was imposed.

Is there a reasonable probability that, had Garcia been advised properly, 

he would have admitted his criminal conduct and pleaded guilty? Garcia says 

he would have, and, at this stage of the case, we have no reason to doubt it. 

See United States v. Reed, 719 F.3d 369, 375 (5th Cir. 2013).

Is there a reasonable probability that, had Garcia admitted his criminal 

conduct and pleaded guilty, he would have received a sentencing reduction for 

accepting responsibility? Under the Sentencing Guidelines, a defendant may 

receive a sentencing reduction if he “clearly demonstrates acceptance of 

responsibility for his offense.” § 3E1.1(a). When defendants enter a guilty plea 

prior to trial and truthfully admit their criminal conduct, the reduction is often 

granted as a matter of routine. See, e.g., United States v. Fisher, 38 F. App’x 

39, 41 (2d Cir. 2002) (unpublished) (stating, in dicta, that defendants who 

plead guilty are “routinely” afforded the reduction); United States v. Rogers, 

972 F.2d 489, 493 (2d Cir. 1992) (same); United States v. Baird, 109 F.3d 856, 

870 (3d Cir. 1997) (same); United States v. Whitson, 125 F.3d 1071, 1075 (7th 

Cir. 1997) (“frequently granted”); United States v. Kimes, 624 F. Supp. 2d 565, 

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572 (W.D. La. 2009) (“routinely”); United States v. Santos, No. 1:02-CR-127, 

2003 WL 21088960, at *2 (E.D. Tenn. May 2, 2003) (same); Wallace v. United 

States, No. 4:10-CR-116, 2013 WL 1395685, at *3 (E.D. Va. Apr. 4, 2013) (“a 

matter of routine”); Lejhanec v. United States, No. 1:99-CV-4387, 1999 WL 

1487594, at *6 (E.D.N.Y. Nov. 29, 1999) (“a matter of course”). In fact, it is the 

law of this circuit that, if the defendant pleads guilty and admits his criminal 

conduct, the district court commits reversible error if it declines to award the 

reduction without a “foundation” for doing so. United States v. PatinoCardenas, 85 F.3d 1133, 1136 (5th Cir. 1996). Here, nothing in the record 

suggests that the district court would have any foundation for denying the 

reduction. Cf. United States v. Faubion, 19 F.3d 226, 229-30 (5th Cir. 1994)

(defendant’s conduct as a fugitive and denial of knowledge of the crime were 

“diametrically inconsistent with any acceptance of responsibility”). There is, 

therefore, a reasonable probability that Garcia would have received the 

reduction.1

Is there a reasonable probability that, had Garcia pleaded guilty and 

received the reduction, his sentence would have been shorter than the one 

imposed? Specifically, we must take note that Garcia was charged with three 

counts of criminal conduct and was, at trial, only convicted of two. If he had

pleaded guilty, he would have had to plead guilty to all three counts.2 

Therefore, the question we must address is, if Garcia had pleaded guilty to the 

additional count, the one of which he was acquitted, would his sentencing 

exposure have differed? The short answer is no. With respect to the statutory 

 

1 Subsection (b) of § 3E1.1 provides an additional reduction in certain instances when

the government has moved for such. It is possible, but more speculative, that Garcia could 

have received that further reduction.

2 We must assume that Garcia would have pleaded guilty to all three counts because 

he does not allege that a competent attorney could have had the third count dismissed, nor 

is there any basis in the record for us to presume such.

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sentencing range, the additional conviction would have made no difference. 

Garcia was convicted of a crime (count five of the indictment) that exposed him 

to a mandatory minimum of ten years of incarceration and a maximum of life 

imprisonment. 21 U.S.C. § 841(b)(1)(A)(vii). The crime of which he was 

acquitted (count two) exposed him to less: between five and forty years of 

incarceration. § 841(b)(1)(B)(vii). In other words, if Garcia had pleaded guilty 

to all three counts, the statutory sentencing range would have been the same. 

The same is true for the Sentencing Guidelines range. Even though Garcia 

was acquitted of one count, he was nevertheless held responsible at sentencing 

for the alleged conduct underlying that count. Presentence Investigation 

Report ¶ 64; see United States v. Valdez, 453 F.3d 252, 264 (5th Cir. 2006) (“A 

jury's verdict of acquittal does not prevent the sentencing court from 

considering conduct underlying the acquitted charge, so long as that conduct 

has been proved by a preponderance of the evidence.”). In short, had Garcia 

pleaded guilty to all three counts, he would have faced the same sentencing 

ranges under the relevant statutes and Guidelines provisions as he faced after 

trial. The only difference would have been the reduction for acceptance of 

responsibility. There is, therefore, a reasonable probability that Garcia would 

have received a shorter sentence than the one imposed.3

For these reasons, Garcia’s Sixth Amendment claim cannot be dismissed 

as a matter of law. Garcia says that his attorney did not advise him as to the 

possibility of receiving a sentencing reduction for acceptance of responsibility. 

Had his attorney advised him properly, he would have pleaded guilty, he says. 

Under the applicable law, there is more than a reasonable probability that, had 

 

3 We need not determine how much shorter Garcia’s probable sentence would have 

been. See United States v. Rivas-Lopez, 678 F.3d 353, 357 (5th Cir. 2012) (“Any amount of 

additional jail time is significant for purposes of showing prejudice.”).

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he done so, he would have received a shorter sentence. Garcia has alleged 

deficiency and prejudice, and the district court erred in denying him the 

opportunity to prove his allegations.

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