United States v. Cong Van Pham
2013 U.S. App. LEXIS 13759
5th Cir.2013Background
- Pham, a Vietnamese refugee who speaks no English, pleaded guilty to manufacturing a large quantity of marijuana and faced a 5-year statutory mandatory minimum.
- Plea agreement included an appeal waiver, disclaimed any agreed sentence, and left open a possible §5K1.1 downward departure if the government moved.
- At sentencing the court found Pham ineligible for the safety‑valve, declined a §5K1.1 motion, and imposed the 60‑month mandatory minimum.
- Immediately after sentencing Pham (through an interpreter) told counsel he was upset, worried the 60‑month sentence would kill his wife, and said he wanted to do something to get less time.
- Counsel discussed possible cooperation/Rule 35 relief but never mentioned or consulted about a direct appeal; no notice of appeal was filed.
- Pham filed a §2255 claim for ineffective assistance based on counsel’s failure to consult about an appeal; the district court denied relief and this Court granted a COA on the consultation issue.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether counsel had a duty to consult about an appeal under Roe v. Flores‑Ortega | Pham argued his post‑sentencing statements and demeanor reasonably demonstrated interest in appealing, triggering a duty to consult | Government/district court argued counsel’s pre‑sentence discussion and counsel’s suggestion of Rule 35 relief sufficed and Pham’s plea/appeal waiver made consultation unnecessary | Court held Pham’s post‑sentencing statement and demeanor did reasonably demonstrate interest in appealing, so counsel had a duty to consult |
| Whether counsel’s failure to consult was constitutionally deficient | Pham argued failure to consult after sentencing was objectively unreasonable under Flores‑Ortega | Counsel argued no consultation needed because Pham expected the mandatory minimum, had an appeal waiver, and counsel pursued other remedies | Court held performance was objectively unreasonable because counsel made no post‑sentencing effort to advise or discover Pham’s wishes |
| Whether Pham showed prejudice from the failure to consult (Flores‑Ortega second prong) | Pham argued he would have timely filed a direct appeal but for counsel’s failure to consult | Government did not brief prejudice on appeal | Court found prejudice established because no reason showed Pham would not have filed an appeal; granted out‑of‑time appeal relief |
| Appropriate remedy for deficient consultation | Pham sought an opportunity to pursue a direct appeal | Government opposed reopening appellate rights | Court reversed denial of §2255, ordered dismissal without prejudice of the relevant part, granted an out‑of‑time appeal, and reinstated the criminal judgment on the docket |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (1984) (two‑prong ineffective assistance test)
- Roe v. Flores‑Ortega, 528 U.S. 470 (2000) (duty to consult about appeal when defendant reasonably demonstrates interest or a rational defendant would want to appeal)
- United States v. Tapp, 491 F.3d 263 (5th Cir. 2007) (application of Flores‑Ortega prejudice standard)
- United States v. Molina‑Uribe, 429 F.3d 514 (5th Cir. 2005) (standards of review for §2255 ineffective‑assistance claims)
- United States v. West, 240 F.3d 456 (5th Cir. 2001) (procedural instruction for granting out‑of‑time appeals)