UNITED STATES OF AMERICA, Plaintiff - Appellee, v. CHRISTOPHER DOMINGUEZ, Defendant - Appellant.
Nos. 19-8021 & 19-8022
UNITED STATES COURT OF APPEALS TENTH CIRCUIT
June 2, 2021
Before HOLMES, Circuit Judge, LUCERO, Senior Circuit Judge, and EID, Circuit Judge.
PUBLISH. FILED United States Court of Appeals Tenth Circuit. Christopher M. Wolpert, Clerk of Court. Appeals from the United States District Court for the District of Wyoming (D.C. No. 2:18-CR-00186-NDF-1) (D.C. No. 2:17-CR-00098-NDF-3)
Stuart S. Healy, III, Assistant United States Attorney (L. Robert Murray, Acting United States Attorney, with him on the brief), Office of the United States Attorney, District of Wyoming, Cheyenne, Wyoming, for Plaintiff-Appellee.
HOLMES, Circuit Judge.
I
This case arises from Mr. Dominguez‘s involvement in a series of robberies in New Mexico and Wyoming. On December 3, 2016, Mr. Dominguez was arrested along with two other suspects, Antoine Mitchell and Moses D. Dickens III, for the armed robbery on that same day of the Medicine Shoppe Pharmacy in Raton, New Mexico. There were a number of salient features of the robbery. The robbery was committed by only three men. Prior to the robbery, the robbers had stolen a vehicle, which they used during the robbery and abandoned thereafter. During the robbery, the robbers wore face coverings, displayed firearms, and ordered the pharmacy employees to load certain drugs into black trash bags that the robbers supplied. The robbers identified the requested drugs by name,
After Mr. Dominguez and his cohorts were arrested, the Raton Police Department posted information concerning the robbery, including photos, on the Department‘s Facebook page. This post drew the attention of a pharmacist who had been shot during a robbery of the Medicap Pharmacy in Cheyenne, Wyoming, on October 6, 2016. The salient features of that robbery closely resembled those of the Raton, New Mexico, robbery. However, notably, the robbers in the Wyoming robbery of the Medicap Pharmacy obtained the stolen vehicle used in the robbery by carjacking a female victim. Moreover, not only did they display their firearms, they also engaged in a gun battle with the pharmacist before fleeing the scene.
After seeing the Raton Police Department Facebook information, the Medicap pharmacist alerted law enforcement, which began investigating whether the suspects in the New Mexico robbery had also committed the prior Wyoming robbery. Law enforcement would eventually directly connect Messrs. Mitchell and Dickens to the Wyoming robbery through DNA uncovered in the carjacking victim‘s stolen vehicle and through that victim‘s eyewitness identifications of the two men. Furthermore, one of the firearms that law enforcement seized from a vehicle involved in the New Mexico robbery was forensically shown to have fired shells recovered at the scene of the Wyoming robbery. Though Mr. Dominguez
Federal grand juries in New Mexico and Wyoming returned multi-count indictments charging Mr. Dominguez and the other two men with various crimes related to these robberies.1 Mr. Dominguez pleaded not guilty to all charges.
any person who, during and in relation to any crime of violence or drug trafficking crime . . . uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime—(i) be sentenced to a term of imprisonment of not less than 5 years; (ii) if the firearm is brandished, be sentenced to a term of imprisonment of not less than 7 years; and (iii) if the firearm is discharged, be sentenced to a term of imprisonment of not less than 10 years.
Section 924(c) requires that each term of imprisonment for a violation of the statute run consecutively to each of a defendant‘s other terms of imprisonment. See
Against this backdrop the parties began plea negotiations in November 2018. By mid-December, the parties reached an agreement, which was reduced to writing and signed by Mr. Dominguez on December 20, 2018. Under the agreement‘s terms, Mr. Dominguez would plead guilty to three counts from the Wyoming indictment—including one
remaining charges against him, including the two additional
For the four charges to which he would plead guilty, the parties agreed in the written plea agreement, pursuant to
Notably, in the plea agreement, Mr. Dominguez averred at numerous points that he understood the nature of the charges against him, what his sentences would be, and that he entered into the agreement‘s terms knowingly and voluntarily. See R., Vol. III, at 15–16 (Plea Agreement, filed Dec. 20, 2018) (stating that Mr. Dominguez “understands,” inter alia, the minimum and maximum sentences associated with the charges to which he was pleading guilty); id. at 17 (stating that he “understands that by entering this agreement and pleading guilty he waives certain rights“); id. (acknowledging that “he understands the nature and elements of the offenses he is pleading guilty to“); see also id. (“The Defendant acknowledges he is entering this agreement and pleading guilty freely and voluntarily because he is, in fact, guilty.“).
On December 21, 2018, Mr. Dominguez appeared in district court for his change-of-plea hearing.3 During a thorough Rule 11 colloquy conducted by the
court, Mr. Dominguez, under oath, represented (among other things) that he (1) was “fully satisfied with the advice and representation [he had] received . . . from [his] attorney“; (2) understood his plea agreement‘s terms and discussed them with his counsel; (3) signed the agreement voluntarily, and suffered no threats or coercion; and (4) understood the myriad consequences of pleading guilty, including the loss of certain fundamental rights. See id., Vol. V, at 58–69 (Tr. Change of Plea Hr‘g, dated Dec. 21, 2018). He also provided a factual basis for, and affirmatively pleaded guilty to, each of the four charges covered by the plea agreement. Following the colloquy, the district court conditionally accepted the plea agreement, finding that Mr. Dominguez was “fully competent and capable of entering an informed plea,” “aware of the nature of the charges” against him, and “aware of the consequences of a plea of guilty to each of those four charges,” and also finding “that his pleas of guilty [were] knowing and voluntary pleas, supported by an independent basis of fact sufficient to satisfy all the essential elements of the four offenses to which [he] . . . pled.” Id. at 82.
But unbeknownst to the parties, the law changed the day of the hearing. Specifically, on December 21, 2018, the President signed into law the First Step
This statutory change had significant implications for Mr. Dominguez‘s potential sentencing exposure: whereas before the First Step Act, he faced a sixty-year mandatory minimum sentence were he to be convicted on all three
In light of this purported shift in the parties’ bargaining positions, Mr. Dominguez moved to withdraw his guilty plea on February 4, 2019. The district court held a hearing on the motion a few weeks later. At that hearing, Mr. Dominguez‘s counsel acknowledged that, at the time the parties were negotiating the plea agreement, and “up until the day that [Mr. Dominguez] actually pled guilty,” the law “was that you [c]ould stack
Based on this material change that he was not aware of at the time of his guilty plea, Mr. Dominguez maintained his guilty plea was not made knowingly and intelligently. See id. at 107–08 (Mr. Dominguez‘s counsel defining “knowing” as, inter alia, “understanding the entire legal structure that gives [a defendant] confidence that [he is] standing [before the court] making an intelligent decision [in pleading guilty],” and arguing that, if “knowing” is defined in this way, “then [Mr. Dominguez‘s plea] wasn‘t a knowing plea“). And,
However, the district court disagreed and denied the motion. As is germane to this appeal, the district court rejected Mr. Dominguez‘s “assert[ion] that [his plea] was not knowing because [he] lacked the pertinent information regarding the stacking of the
The court also found unpersuasive Mr. Dominguez‘s argument that he was denied “close assistance” of counsel, in no small part because Mr. Dominguez “continually stated [at his change of plea hearing] that he was satisfied with the advice of counsel he received throughout the entire process.” Id. at 43. Moreover, Mr. Dominguez‘s attorney “provided [Mr. Dominguez] with advice based on the law that was in place at the time of the negotiations,” when “passage of the First Step Act was uncertain“; his attorney‘s “[f]ailure to fully consider th[e] legislation” until after it was signed into law “d[id] not constitute . . . lack of close . . . assistance of counsel.” Id. at 42–43; see also id. at 43 (“[Mr. Dominguez] is entitled to close assistance of counsel, not clairvoyant nor perfect assistance, and certainly not assistance based on 20/20 hindsight.“). The district court, accordingly, denied Mr. Dominguez‘s motion to withdraw his guilty plea.
Mr. Dominguez now appeals from that denial, asserting two bases for reversal: (1) his plea was not knowingly and intelligently made,5 and (2) he was
In particular, in our precedent, the two terms “knowing” and “intelligent” frequently have traveled together, even though we have not made a meaningful effort to attribute distinct meanings to them. See Gigot, 147 F.3d at 1199 (“A plea must ‘constitute a deliberate, intelligent choice between available alternatives’ in order to be knowingly and intelligently made.” (quoting United States v. Rhodes, 913 F.2d 839, 843 (10th Cir. 1990))); United States v. Wright, 43 F.3d 491, 495 (10th Cir. 1994) (“The Supreme Court has often reiterated that a defendant‘s guilty plea must be knowing and intelligent to be a constitutional basis for conviction.“); see also United States v. Hurlich, 293 F.3d 1223, 1230 (10th Cir. 2002) (“A defendant‘s guilty plea must be knowing, voluntary, and intelligent.“); cf. United States v. Vargas, 316 F.3d 1163, 1166–67 (10th Cir. 2003) (noting the “law‘s concern that when a defendant surrenders important rights and claims, such decisions must be knowing and intelligent“—a concern that “is pervasive in our precedents” (collecting cases)).
As such, in the interest of consistency and clarity, we adopt that convention here. That is, we most often use in this opinion (excepting language quoted from other sources) the two terms in tandem in the following or a like manner: “knowing and intelligent,” or “knowingly and intelligently.” We do so in addressing, in essence, the same question as the district court and the parties—that is, whether Mr. Dominguez properly understood the relevant circumstances and consequences associated with his guilty plea. See Gonzales, 515 F.3d at 1118 (“A plea is ‘knowing’ if the defendant has ‘a full understanding of what the plea connotes and of its consequence.‘” (quoting Boykin v. Alabama, 395 U.S. 238, 244 (1969))). To be clear, however, in light of the foregoing discussion—noting that the two terms have been used interchangeably in controlling precedent—we do not intend to opine on whether the convention of using “knowing and intelligent” together—rather than using one or the other term in isolation—is the most appropriate statement of the relevant standard.
We review the district court‘s denial of Mr. Dominguez‘s motion to withdraw his guilty plea under our “deferential” abuse-of-discretion standard. United States v. Byrum, 567 F.3d 1255, 1259 (10th Cir. 2009); accord United States v. Yazzie, 407 F.3d 1139, 1142 (10th Cir. 2005) (en banc); cf. United States v. Siedlik, 231 F.3d 744, 748 (10th Cir. 2000) (“Defendants do not have an absolute right to withdraw a guilty plea.“). To withdraw his guilty plea, Mr. Dominguez “bears the burden of establishing a fair and just reason” for his request. United States v. Marceleno, 819 F.3d 1267, 1272 (10th Cir. 2016) (quoting United States v. Hamilton, 510 F.3d 1209, 1214 (10th Cir. 2007)); see
In determining whether Mr. Dominguez has presented a “fair and just reason” for his withdrawal request, we have typically considered the following factors:
- whether the defendant has asserted his innocence;
- whether withdrawal would prejudice the government;
- whether [he] delayed in filing his motion, and if so, the reason for the delay;
- whether withdrawal would substantially inconvenience the court;
- whether close assistance of counsel was available to [him];
- whether [his] plea was knowing and voluntary; and
- whether the withdrawal would waste judicial resources.
Beyond these specific factors, we have acknowledged that, though “motion[s] to withdraw a plea prior to sentencing should be freely allowed,” United States v. Garcia, 577 F.3d 1271, 1274 (10th Cir. 2009) (quoting Hamilton, 510 F.3d at 1213–14), “[w]hether to permit withdrawal ‘always and ultimately lies within the sound discretion of the district court,‘” Sanchez-Leon, 764 F.3d at 1259 (quoting United States v. Soto, 660 F.3d 1264, 1267 (10th Cir. 2011)). Within our overarching abuse-of-discretion analysis, “[w]e review legal conclusions de novo, such as whether the plea was made knowingly and
Recall that Mr. Dominguez does not assert his innocence as a “fair and just reason” for withdrawing his guilty plea. In the context of the two objections that he does raise, this is consequential because we have held that, “[i]f the defendant fails to carry his . . . burden on asserted innocence, validity of the plea (whether it was given knowingly and voluntarily), and [also] ineffective assistance of counsel, [we] need not address ‘the remaining factors . . . because the[y] . . . speak to the potential burden on the government and the court, rather than the defendant‘s reason for withdrawal.‘” Sanchez-Leon, 764 F.3d at 1258 (second ellipsis in original) (citation and emphasis omitted) (quoting Hamilton, 510 F.3d at 1217); see Marceleno, 819 F.3d at 1272 (“If the assertion-of-innocence, knowing-and-voluntary, and ineffective-assistance-of-counsel factors all weigh against the defendant, a district court need not consider the remaining four factors.“). Accordingly, if Mr. Dominguez has failed to carry his burden of proof regarding his knowing-and-intelligent and “close assistance” challenges, then we may conclude that Mr. Dominguez has not shown a “fair and just reason” to withdraw his plea because he has made no assertion of his innocence of the charged offenses.
Mr. Dominguez claims that the district court erred in denying his motion to withdraw his guilty plea for two reasons: (1) his plea was not knowingly and intelligently made, and (2) his lawyer did not provide “close assistance.” However, for the reasons discussed below, we conclude that Mr. Dominguez has failed to demonstrate that his guilty plea was unknowing and unintelligent and that he lacked “close assistance” of counsel. More specifically, as to the latter, we hold that Mr. Dominguez has not demonstrated that he was prejudiced by any deficient performance of his counsel. Consequently, we determine that the district court did not abuse its discretion in denying Mr. Dominguez‘s motion to withdraw his guilty plea.
We turn now to address Mr. Dominguez‘s arguments for reversal.
A
Mr. Dominguez first argues that his guilty plea is invalid because it was not knowingly and intelligently made. We first outline the governing law and then address the merits of this claim.
1
“A plea of guilty is constitutionally valid only to the extent it is . . . ‘intelligent.‘” Bousley v. United States, 523 U.S. 614, 618 (1998) (quoting Brady, 397 U.S. at 748). This constitutional protection stems from the Due Process Clause. See, e.g., United States v. Avila, 733 F.3d 1258,
“The longstanding test for determining the validity of a guilty plea is ‘whether the plea represents [inter alia] a[n] . . . intelligent choice among the alternative courses of action open to the defendant.‘” United States v. Carr, 80 F.3d 413, 416 (10th Cir. 1996) (quoting Hill v. Lockhart, 474 U.S. 52, 56 (1985)); accord Sanchez-Leon, 764 F.3d at 1259. That is, for a plea to be knowing and intelligent, the defendant “must have ‘a full understanding of what the plea connotes and of its consequence.‘” Marceleno, 819 F.3d at 1276 (quoting United States v. Hurlich, 293 F.3d 1223, 1230 (10th Cir. 2002)); see also United States v. Gigot, 147 F.3d 1193, 1199 (10th Cir. 1998) (“A plea must ‘constitute a deliberate, intelligent choice between available alternatives’ in order to be knowingly and intelligently made.” (quoting United States v. Rhodes, 913 F.2d 839, 843 (10th Cir. 1990)))).
More particularly, a defendant knowingly and intelligently pleads guilty if he understands his plea‘s “direct consequences,” even if he does not also “understand every collateral consequence of the plea.” Hurlich, 293 F.3d at 1230-31 (emphases added); see United States v. Muhammad, 747 F.3d 1234,
Pursuant to
Where the district court complies with
2
Mr. Dominguez argues that his plea was not knowingly and intelligently made and is, therefore, invalid because “he was not aware of his available
Not surprisingly, Mr. Dominguez struggles to find authority supportive of his novel position. He offers none that is controlling. And the authority that he does identify is not persuasive. Mr. Dominguez relies heavily on the Fifth Circuit‘s decision in United States v. Guerra, 94 F.3d 989 (5th Cir. 1996), to
A further examination of salient details of the case reinforce the point. There, the district court informed a defendant “that, because of his prior drug convictions, he was subject to enhanced criminal penalties under the federal statutes as a repeat offender . . . . [and] [t]hus instead of facing a possible 30-year term for both [of his drug-trafficking] counts, the court was of the view that a 60-year term was possible.” Guerra, 94 F.3d at 991. However, “the district court was mistaken. The enhanced sentences for repeat offenders were applicable only where a defendant had previously been convicted of federal drug offenses. [The defendant] had been convicted of drug offenses in the courts of Illinois and
The defendant thereafter sought to challenge the validity of his plea in post-conviction proceedings under
We do not find it difficult to imagine that the district court‘s erroneous statement to [the defendant] that he faced a possible sentence of 60 years in prison upon conviction on both counts might have led him to enter into plea negotiations for a reduced sentence on a single count, rather than go to trial and face maximum exposure on both counts.
Id. at 994. Having found prejudice to overcome the bar, the Fifth Circuit with little difficulty determined that the record showed that the district court‘s misstatements concerning “the maximum penalty he faced,” were he to be found guilty of the charged offenses, effected a
As these details should underscore, Guerra is patently distinguishable and does not even marginally advance Mr. Dominguez‘s cause. The Fifth Circuit‘s decision there turned on the fact that the district court expressly made inaccurate statements to the defendant regarding the penalties that he faced, which effected a
The district court undisputedly conducted a thorough
After oral argument, pursuant to
In sum, Mr. Dominguez does not demonstrate how any misunderstanding he may have had about the First Step Act‘s potential effects on mandatory minimum penalties for charges to which he did not plead guilty are of direct consequence with respect to the charges to which he did plead guilty, such that his purported misunderstanding regarding these effects would render his plea unknowing and unintelligent. Accordingly, we conclude that the district court did not err in rejecting Mr. Dominguez‘s contention that his plea was not knowing and intelligent.8
B
Mr. Dominguez also argues that his plea is invalid because he did not receive “close assistance” of counsel during the plea bargaining process. More specifically, Mr. Dominguez contends that his plea is invalid because his counsel rendered constitutionally deficient assistance of counsel by failing to account for the impending passage of the First Step Act during plea negotiations. He is quick to point out that his trial counsel “admitted complete ignorance of the First Step Act‘s impact on [his potential sentence] and conceded that he failed to perform any research on the point until after Mr. Dominguez had changed his plea,” thereby “candidly conced[ing] that he did not provide . . . ‘close assistance of counsel.‘” Aplt.‘s Opening Br. at 21. Mr. Dominguez further claims that, had his counsel informed him of the First Step Act‘s potential impact on his sentence—in particular, the Act‘s amendment to
The parties frame this “close assistance” of counsel issue as one raising an ineffective-assistance-of-counsel question under the familiar, two-pronged test of Strickland v. Washington, 466 U.S. 668 (1984).9 We have previously applied Strickland‘s ineffective-assistance standard to the “close assistance” issue when considering a motion to withdraw a guilty plea. See Marceleno, 819 F.3d at 1272 (discussing the “ineffective-assistance-of-counsel factor[]” and asking “whether counsel provided effective assistance“); Hamilton, 510 F.3d at 1216 (“When a defendant‘s challenge to a guilty plea is based on ineffective assistance of counsel, we apply the two-part [Strickland] test . . . .“); Gordon, 4 F.3d at 1570-73 (reviewing a defendant‘s “challenge to a guilty plea based on a claim of ineffective assistance of counsel” under Strickland and holding that the
1
Under Strickland, Mr. Dominguez must demonstrate both that (1) “his counsel‘s performance ‘fell below an objective standard of reasonableness‘” and (2) “the deficient performance prejudiced [his] defense.” Byrd v. Workman, 645 F.3d 1159, 1167 (10th Cir. 2011) (quoting Strickland, 466 U.S. at 687-88). We “may address the performance and prejudice components [of the Strickland test] in any order, but need not address both if [Mr. Dominguez] fails to make a sufficient showing of one.” Cooks v. Ward, 165 F.3d 1283, 1292-93 (10th Cir. 1998); see Byrd, 645 F.3d at 1168 (“Courts are free to address these two prongs in any order, and failure under either is dispositive.“). Indeed, “in Strickland, the Supreme Court emphasized that ‘if it is easier to dispose of an ineffectiveness
2
To satisfy Strickland‘s prejudice prong, a defendant “must show that there is a reasonable probability that, but for [his] counsel‘s unprofessional errors, the result of the proceeding would have been different.” Cullen v. Pinholster, 563 U.S. 170, 189 (2011) (quoting Strickland, 466 U.S. at 694). In the guilty-plea context, Strickland‘s prejudice prong ordinarily requires a defendant to demonstrate “there is a reasonable probability that, but for [his] counsel‘s errors, he would not have pleaded guilty and would have insisted on going to trial.” Hill, 474 U.S. at 59 (emphases added); accord United States v. Kramer, 168 F.3d 1196, 1201 (10th Cir. 1999) (“To show prejudice in the guilty plea context, the defendant must establish that there is a reasonable probability that, but for counsel‘s errors, the defendant would not have pleaded guilty and would have insisted on going to trial.“).
“A reasonable probability is a probability sufficient to undermine confidence in the outcome,” which necessitates a “‘substantial,’ not just ‘conceivable,’ likelihood of a different result.” Cullen, 563 U.S. at 189 (first
Though “[u]ltimately . . . our task is to make a holistic inquiry into all of the” facts bearing on whether a particular defendant suffered prejudice, Heard v. Addison, 728 F.3d 1170, 1183 (10th Cir. 2013), we have stressed that the defendant‘s “‘mere allegation’ that he would have insisted on trial but for his counsel‘s errors, although necessary, is ultimately insufficient to entitle him to relief,” Miller v. Champion, 262 F.3d 1066, 1072 (10th Cir. 2001); see Heard, 728 F.3d at 1184 (“[W]e remain suspicious of bald, post hoc and unsupported statements that a defendant would have changed his plea absent counsel‘s errors . . . .“).
Consistent with the proposition that a defendant‘s say-so is not enough, we have indicated that this prejudice inquiry is largely an objective one. See Heard, 728 F.3d at 1183 (noting that “[o]ur assessment of this [prejudice] prong will of necessity ‘depend in large part’ on objective factors such as whether an unmade evidentiary or legal discovery ‘likely would have changed the outcome of a trial,’ or whether a defense about which the defendant was not advised ‘likely would
In this vein, the Supreme Court in Padilla v. Kentucky advised that, to obtain relief on an ineffective-assistance-of-counsel claim under Strickland, a defendant challenging his guilty plea “must convince the court that [his] decision to reject the plea . . . would have been rational under the circumstances.” 559 U.S. at 372 (emphasis added). We have subsequently incorporated and subsumed this “rationality” factor into Strickland‘s reasonable-probability prejudice inquiry. See Heard, 728 F.3d at 1184 (reading Padilla‘s “state[ment] that proof of prejudice requires a [defendant] to show that ‘a decision to reject the plea bargain would have been rational under the circumstances‘” as “suggest[ing] an objective floor” or “threshold” on the prejudice inquiry—“somewhere below Hill‘s more demanding requirement that the defendant show ‘a reasonable probability that’ he
Consonant with Supreme Court precedent, our cases make clear that “it is often quite difficult for [defendants] who have acknowledged their guilt,” like Mr. Dominguez, “to satisfy Strickland‘s prejudice prong.” Bonney I, 754 F.3d at 886 (quoting Padilla, 559 U.S. at 371 n.12); see Lee v. United States, 137 S. Ct. 1958,
3
Mr. Dominguez‘s prejudice theory is somewhat elusive. That is, Mr. Dominguez measures prejudice in his opening brief in terms of the denial of his right to a trial, see Aplt.‘s Opening Br. at 23 (arguing that it is “more than reasonably probable” that “Mr. Dominguez would not have changed his plea,” and, therefore, would have gone to trial, “if not for the erroneous advice that he would receive a 60-year mandatory minimum sentence if he was convicted of the three
a
Mr. Dominguez‘s denial-of-trial-right theory falls squarely within Hill‘s rubric. “In cases where a defendant complains that ineffective assistance led him to accept a plea offer as opposed to proceeding to trial, the defendant will have to show ‘a reasonable probability that, but for counsel‘s errors, he would not have pleaded guilty and would have insisted on going to trial.‘” Missouri v. Frye, 566 U.S. 134, 148 (2012) (quoting Hill, 474 U.S. at 59). Under this rubric, it is clear that Mr. Dominguez‘s mere insistence that he would have maintained his plea of not guilty and proceeded to trial is not enough to show Strickland prejudice. See, e.g., Miller, 262 F.3d at 1072. And we conclude that Mr. Dominguez‘s prejudice showing is otherwise insufficient. In particular, he has failed to demonstrate that his rejection of his plea agreement would have been rational under the circumstances. See, e.g., Heard, 728 F.3d at 1184.
The potential sentencing alternatives drive this point home. Most significantly, as the government stresses, Mr. Dominguez‘s twenty-eight-year sentence under his plea agreement was very advantageous to him because it was seventy-six months below the low end of the applicable Guidelines range—even when we consider only the offenses to which he pleaded guilty. See Aplee.‘s
Beyond the Guidelines, acceptance of the plea agreement was seemingly rational in light of the statutory penalties associated with Mr. Dominguez‘s charges. Even putting aside for the moment his
Moreover, recall that the maximum sentence for all
To be sure, this favorability calculus turns on the likelihood that Mr. Dominguez would have been convicted if he had proceeded to trial. In other words, Mr. Dominguez‘s plea agreement was very favorable to him because it protected him from severe penalties that he likely would have faced upon conviction following trial. But, if it was unlikely that he would have been convicted at trial, then, logically, it would have been more rational for him to reject the plea agreement; indeed, it would have been more reasonably probable
But Mr. Dominguez does not meaningfully contend that weaknesses in the government‘s proof put the prejudice question in a different light. In other words, he does not meaningfully argue that such weaknesses would have made it more rational for him to reject the plea agreement—much less more reasonably probable that he would do so and go to trial. Cf. Moreno-Espada v. United States, 666 F.3d 60, 67 n.7 (1st Cir. 2012) (rejecting defendant‘s argument that, but for his counsel‘s ineffective assistance, he would have gone to trial instead of pleading guilty based on the weakness of the government‘s evidence, where the record belied such an assertion of weakness).
As to the Wyoming offenses, Mr. Dominguez hardly does more than assert in conclusory fashion that the government possessed “relatively weak evidence“—noting that “there was no eye-witness or DNA evidence connecting Mr. Dominguez to the crimes,” whereas there was such evidence with respect to his co-defendants. Aplt.‘s Opening Br. at 4, 15.
But, while the government freely acknowledges that there was no such evidence in the Wyoming case that incriminated Mr. Dominguez, it asserts that “the robbery in [New Mexico] was important evidence tying [Mr. Dominguez] to his crimes in Wyoming” and that “the similarities between the two crimes were so striking” that if the Wyoming charges had been tried, “the district court [had] ruled that the government could present evidence of the [New Mexico] robbery in the Wyoming matter to demonstrate identity, intent, preparation, and common plan.” Aplee.‘s Resp. Br. at 10. Moreover, the government reminds us that it agreed to forgo charges related to the 2015 New Mexico bank robbery, where it
Accordingly, Mr. Dominguez does not come close to showing that any ostensible weaknesses in the government‘s proof of guilt would have made it rational for him to forgo his very favorable plea agreement.12 Nor does he point
b
As for Mr. Dominguez‘s focus on the purported denial of a potentially better plea agreement—that is, his “better-plea” theory—to begin, Mr. Dominguez faces two significant threshold hurdles. But, even if he overcomes them, we conclude that Mr. Dominguez‘s showing on the merits of the prejudice question comes up short. Turning to the threshold issues, first, a cogent argument could be made that Mr. Dominguez has not preserved this theory by failing to make any argument for it in his opening brief.13 See, e.g., United States v. Leffler, 942 F.3d 1192, 1197 (10th Cir. 2019)
The second hurdle is substantive and more serious. At a minimum, it is open to significant doubt whether the better-plea theory is a cognizable theory of Strickland prejudice. See, e.g., Short v. United States, 471 F.3d 686, 696–97 (6th Cir. 2006) (“The Supreme Court has developed a specific standard that defendants
More specifically, Mr. Dominguez‘s better-plea theory is built on a foundation of speculation and conjecture. He cites to nothing in the record indicating that the government would have offered him a plea agreement more favorable than the one he accepted, regardless of the circumstances. Cf. R., Vol. V, at 117 (the government, at the district court‘s hearing on Mr. Dominguez‘s motion to withdraw, noting that the plea agreement was “reasonable” because it offered Mr. Dominguez a sentence “76 months below the guideline range“); id. at 118 (the government emphasizing that “the potential sentences” for Mr. Dominguez‘s
Without more than sheer speculation and conjecture suggesting that it was reasonably probable that the government would have given him a more favorable plea agreement, Mr. Dominguez‘s better-plea theory of prejudice must fail. See, e.g., Hooks v. Workman, 689 F.3d 1148, 1187 (10th Cir. 2012) (“Reasonable probability is more than mere speculation . . . .“); Byrd, 645 F.3d at 1168 (noting that “mere speculation is not sufficient to satisfy this [Strickland prejudice] burden“); cf. Frye, 566 U.S. at 148 (“[D]efendants who have shown a reasonable probability they would have accepted the earlier plea offer must also show that, if the prosecution had the discretion to cancel it or if the trial court had the discretion to refuse to accept it, there is a reasonable probability neither the prosecution nor the trial court would have prevented the offer from being accepted or implemented. This further showing is of particular importance because a defendant has no right to be offered a plea . . . .” (emphasis added)); Rodriguez-Penton v. United States, 905 F.3d 481, 493 (6th Cir. 2018) (Thapar, J., dissenting) (noting that, even under a more-expansive reading of Supreme Court precedent, “a defendant still must show a ‘reasonable probability’ that, but for counsel‘s bad advice, he would have received a chance to negotiate a better
In short, Mr. Dominguez‘s suggestion that he could have negotiated a better plea agreement—if he had been equipped by his lawyer with knowledge of the First Step Act—is objectively groundless. Therefore, even if the better-plea theory were a cognizable theory of Strickland prejudice, Mr. Dominguez would not prevail on it here.
c
All that said, we acknowledge Mr. Dominguez‘s repeated suggestion that the record potently supports his contention that, if properly advised concerning the First Step Act, he would have rejected the plea agreement, because in fact he took affirmative steps to do so. More specifically, Mr. Dominguez emphasizes that he filed his motion to withdraw his plea “immediately after he became aware of the First Step Act‘s impact on his case.” Aplt.‘s Opening Br. at 13 (noting that his responsive action in filing the motion “constitutes per se evidence that he would not have pleaded guilty if he had been correctly informed of the law before he had changed his plea” (emphasis added)); see Aplt.‘s Reply Br. at 13 (arguing that “the record demonstrates that there is every reason to question whether Mr. Dominguez would have entered into the same plea agreement with the government had he been properly informed of the available alternatives” and pointing out that “[t]he most telling piece of evidence is that when Mr.
We do not question that, under certain circumstances, a defendant‘s affirmative efforts to withdraw his guilty plea—upon receiving reasonably competent advice from counsel—may be a relevant factor in assessing whether counsel‘s allegedly deficient pre-plea advice prejudiced the defendant under Strickland. See, e.g., Gonzalez v. United States, 722 F.3d 118, 133 (2d Cir. 2013) (“[T]he fact that an attempt was made to withdraw the guilty plea and go to trial may not be dispositive on the issue of [ineffective assistance of counsel] prejudice; however, it is a factor that must be considered by the court in assessing whether there is a reasonable probability that but for substandard performance by counsel, the defendant would have chosen to eschew the plea and go to trial.“). However, Mr. Dominguez does not convince us that his actions regarding his motion to withdraw significantly support his contention that there is a reasonable probability that, but for his counsel‘s allegedly deficient representation concerning the First Step Act, he would not have entered into his plea agreement.
To begin, Mr. Dominguez‘s actions relating to the filing of his motion to withdraw arguably were not the product of a genuine desire to proceed to trial, upon receiving constitutionally adequate advice concerning the First Step Act, but, rather, the outgrowth of a negotiating strategy aimed at leveraging the First Step Act‘s stacking amendment to secure a better plea. See, e.g., Aplt.‘s Reply
Thus, as relevant here, even assuming that Mr. Dominguez‘s post-plea knowledge of the First Step Act prompted him to file a motion to withdraw with the subjective aim of getting a better plea agreement, that action would not signify that Mr. Dominguez was objectively prejudiced by his counsel‘s advice to enter the existing plea agreement because Mr. Dominguez‘s prospect of a better plea agreement was only speculative and conjectural. See, e.g., Bonney I, 754 F.3d at 884 (noting that the Supreme Court has cited Strickland “in support of an objective prejudice standard“); Hooks, 689 F.3d at 1187 (noting that “[r]easonable probability is more than mere speculation“).
Alternatively, let us assume for the present analysis that Mr. Dominguez‘s actions regarding the motion to withdraw genuinely reflected a subjective
In this regard, recall that Strickland‘s prejudice analysis involves a “counterfactual” inquiry that hinges on counsel‘s alleged ineffective representation—that is, the inquiry turns on whether, but for such ineffective representation, there is a reasonable probability that the outcome of the proceeding would have been different. Headley v. United States, 804 F. App‘x 973, 979 (10th Cir. 2020) (unpublished). Consequently, factors unrelated to counsel‘s ineffective representation do not fall within the compass of Strickland prejudice, even if there is a reasonable probability that, but for those factors, the outcome of the proceeding would have been different.
Here, as shown above, whether or not Mr. Dominguez possessed knowledge of the First Step Act, he would have been hard pressed to see his plea agreement—viewed through an objective lens—as anything other than very favorable. And nothing material about the First Step Act changed after Mr. Dominguez pleaded guilty and the statute became law. But there were changes that did not involve the First Step Act around the time and after Mr. Dominguez pleaded guilty relating to the status of his co-defendants; these changes
In other words, when Mr. Dominguez filed his motion to withdraw, he knew that his co-defendants—as to whom the government‘s evidence was admittedly stronger, including DNA evidence—were not going be tried with him because they previously had pleaded guilty. And it is at least arguable that this knowledge was the factor that altered his risk calculation regarding going to trial and prompted him to file his motion to withdraw—not the knowledge that he allegedly should have received from his lawyer concerning the First Step Act.
To be clear, we have no need to reach a definitive conclusion on this matter. It suffices for us to conclude that the timing of Mr. Dominguez‘s motion to withdraw and, relatedly, his actions in filing that motion do not have the clear, unequivocal import that Mr. Dominguez suggests. That is, these circumstances do not “constitute[] per se evidence that he would not have pleaded guilty if he had been correctly informed of the law before he had changed his plea.” Aplt.‘s Opening Br. at 13; cf. United States v. Santiago Miranda, 654 F.3d 130, 139–40 (1st Cir. 2011) (noting that “the timing of [the defendant‘s] motion to withdraw his guilty plea is suspect” because the motion was filed “well after [the
Instead, viewed in the context of the foregoing analysis regarding why it was entirely rational for Mr. Dominguez to enter into his plea agreement, his filing of his motion to withdraw and the timing of it do not alter our view that Mr. Dominguez has failed to show that there is a reasonable probability that, but for any deficiency in his counsel‘s advice concerning the First Step Act, the outcome of his plea proceeding would have been different. In other words, Mr. Dominguez‘s filing of his motion to withdraw and the timing of it do not—alone or in combination with other factors—change our bottom-line conclusion that he does not establish Strickland prejudice.
***
In the end, we are left with little more than Mr. Dominguez‘s say-so as to whether he would have rejected his plea agreement if his counsel had informed him of the First Step Act‘s implications. But while such “bald, post hoc and unsupported statements” may be a necessary predicate to Mr. Dominguez‘s Strickland prejudice showing, they are insufficient, on their own, to carry his burden of proof. Heard, 728 F.3d at 1184.
IV
For the foregoing reasons, we conclude that the district court did not abuse its discretion in denying Mr. Dominguez‘s motion to withdraw his guilty plea
LUCERO, J., dissenting:
I appreciate the lengthy and thorough review my colleagues provide in the majority opinion, but I remain unpersuaded. Although I agree that “there is no requirement that a defendant be advised of all potential collateral consequences of a guilty plea,” (Op. 22, quoting United States v. Muhammad, 747 F.3d 1234, 1239-40 (10th Cir. 2014)), the penalties a defendant avoids by pleading guilty are anything but collateral. Avoidance of potential penalties was the basic impetus that motivated Dominguez to enter into his plea agreement with the United States. Unequivocal failure by counsel for Dominguez to advise him of law that dramatically altered those penalties amounts to ineffective assistance of counsel. As a result, I would conclude Dominguez is entitled to withdraw his guilty plea.
I
Plea bargaining is commonly predicated on avoided penalties. A defendant whose counsel fails to provide even a moderately accurate picture of what penalties a guilty plea would avoid cannot make an informed pleading decision. This follows from the nature of plea bargaining. “[P]lea bargains are essentially contracts.” Puckett v. United States, 556 U.S. 129, 137 (2009). When a party to a contract is severely misinformed by counsel about the benefits a contract will yield, counsel has undoubtedly failed the client. In the
The majority consigns counsel‘s failure to irrelevancy. In its view, Dominguez‘s expectation that he would understand the benefits of a potential plea bargain is simply too much to ask—a criminal defendant is entitled to understand only “the penalties and direct consequences associated with the charges to which he pleaded guilty,” not “penalties or potential consequences associated with charges to which he did not plead guilty.” (Op. 25). No matter that those charges “to which he did not plead guilty” were a primary motivation behind the defendant‘s guilty plea.
This cabined view of the “knowingly and intelligently” requirement for guilty pleas cannot be right. Demanding only that a criminal defendant understands the penalties to be received, not the penalties to be avoided, is tantamount to requiring that the defendant only understand half the bargain. This falls well short of what the Constitution and our caselaw demand.
II
When a defendant moves to withdraw a guilty plea prior to sentencing, the court must assess whether there is a “fair and just reason for withdrawal” under
The analysis of the Yazzie factors relevant to Dominguez‘s motion to withdraw his guilty plea therefore requires a determination of whether his counsel was ineffective under Strickland, a determination that would also render his plea not voluntary or intelligent. Consequently, the analysis outlined by the Supreme Court in Hill v. Lockhart is the relevant inquiry to assess these Yazzie factors in the context of whether Dominguez provided a “fair and just” reason for withdrawal.
In Hill v. Lockhart, 474 U.S. 52, 58 (1985), the Supreme Court applied the two-part Strickland test to challenges of guilty pleas based on ineffective assistance of counsel. “To demonstrate that counsel was constitutionally ineffective, a defendant must show that counsel‘s representation fell below an objective standard of reasonableness and that he was prejudiced as a result.” Lee v. United States, 137 S. Ct. 1958, 1964 (2017) (quotation omitted). As the Supreme Court explained, “the first half of the Strickland v. Washington test is nothing more than a restatement of the standard of attorney competence already set forth in Tollett v. Henderson . . . and McMann v. Richardson.” Hill, 474 U.S. at 58-59 (citing Tollett v. Henderson, 411 U.S. 258 (1973) and McMann v. Richardson, 397 U.S. 759 (1970)). Under McMann and Tollett, whether a guilty plea is unintelligent “depends . . . on whether that advice was within the range of competence
Unlike my colleagues in the majority, I conclude that Dominguez has met both requirements of the Strickland test. First, his counsel‘s performance was objectively deficient.
The first prong—constitutional deficiency—is necessarily linked to the practice and expectations of the legal community: The proper measure of attorney performance remains simply reasonableness under prevailing professional norms. We long have recognized that prevailing norms of practice as reflected in American Bar Association standards and the like are guides to determining what is reasonable.
Padilla v. Kentucky, 559 U.S. 356, 366 (2010) (cleaned up). The American Bar Association Criminal Justice Standards for the Defense Function impose “a duty to be well-informed regarding the legal options and developments that can affect a client‘s interests during a criminal representation.” Am. Bar Ass‘n Standards for Criminal Justice: The Defense Function, 4-4.1.3 (4th ed. 2017). As trial defense counsel appears to acknowledge, his failure to research or make himself aware of the pending change in federal sentencing law effectuated by the First Step Act did not fulfill this duty, and that failure was objectively unreasonable.
The First Step Act was “heralded as the most far-reaching overhaul of the criminal justice system in a generation,” receiving extensive press coverage during its consideration and passage by Congress. Alan Ellis and Mark H. Allenbaugh, The First
At the hearing on the motion to withdraw his plea, the district court evaluated defense counsel‘s efforts and determined that Dominguez received close assistance of counsel. For the district court, defense counsel‘s failure to advise Dominguez on statutory changes was not deficient, but this finding was premised on the court‘s erroneous determination that the First Step Act was not yet law:
While the timing of the plea negotiations leading up to the change of plea is unusual, it is important to realize that Defendant was engaged in plea negotiations for several weeks prior to the change of plea hearing, when the passage of the First Step Act was uncertain. Failure to fully consider this legislation that was not signed by the President until (short[l]y) after the change of plea hearing does not constitute the lack of close assistance of counsel.
District Court Order at 8 (emphasis added).
Quite to the contrary, the legislation was signed before the change of plea was entered, and was thus the applicable law for analysis of the constitutional effectiveness of
Although we review the district court‘s decision on a motion to withdraw a guilty plea deferentially, a district court “by definition abuses its discretion when it makes an error of law.” Koon v. United States, 518 U.S. 81, 100 (1996); see also United States v. Lopez-Avila, 665 F.3d 1216, 1219 (10th Cir. 2011). The First Step Act was effective for the entirety of December 21, 2018; it was therefore the law prior to the district court‘s acceptance of Dominguez‘s change of plea. By basing its denial of Dominguez‘s motion on its conclusion that the law did not change until after the change of plea hearing, the district court erred on an issue of law and therefore necessarily abused its discretion.
Moreover, incorrect sentencing law was communicated to the defendant as a result of this change of law. That the pertinent statute was signed into law only just prior to the plea hearing is of no moment; the defendant was misinformed and entered a plea based upon that misinformation. Only if we are prepared to say that recent changes in the law
Dominguez has also shown prejudice arising from his counsel‘s ineffective assistance. Contrary to the majority‘s contention, we have much more than Dominguez‘s assertion that he would not have changed his plea had he known of the changes wrought by the First Step Act to
The majority contends that it would have been irrational for Dominguez to change his plea, describing the plea agreement as “very advantageous to [Dominguez] because it was seventy-six months below the low end of the applicable Guidelines range . . . .” (Op. 39). But in the context of the 336 months to which Dominguez was sentenced under the plea agreement, a 76-month discount for agreeing to plead guilty is hardly
III
A defense attorney must correctly advise his client on the consequences not only of those charges to which the defendant is pleading guilty but also of the benefits accruing from a guilty plea. These benefits are essential, not collateral, to a plea agreement. They fall squarely within the requirements of Strickland—and it cannot be otherwise, given that plea bargaining “is the criminal justice system.” Frye, 566 U.S. at 144. “The longstanding test for determining the validity of a guilty plea is whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant.” Hill, 474 U.S. at 56 (quotation omitted). With the ubiquity of plea bargaining in our criminal justice system, “defendants cannot be left to the mercies of incompetent counsel” in assessing the benefits, as well as the costs, of their plea bargain. McMann, 397 U.S. at 771.
Notes
See Williams v. Jones, 571 F.3d 1086, 1090-91 (10th Cir. 2009).
The First Step Act has no specific effective date; as such, it is effective when enacted. See Lapeyre v. United States, 84 U.S. 191, 198 (1872) (“There is no statute fixing the time when acts of Congress shall take effect, but it is settled that where no other time is prescribed, they take effect from their date. . . . The act becomes effectual upon the day of its date. In such cases it is operative from the first moment of that day.“).
Because of my conclusion that Dominguez has established “a reasonable probability that, but for counsel‘s errors, he would not have pleaded guilty and would have insisted on going to trial,” Hill, 474 U.S. at 59, I do not consider the alternative argument that he would have been able to negotiate a more advantageous plea agreement.
Indeed, in unpublished decisions involving analogous circumstances, panels of our court have persuasively concluded that defendants did not show that it would have been rational for them to reject their plea agreements. Cf. United States v. Clark, 596 F. App‘x 696, 701–02 (10th Cir. 2014) (unpublished) (“[The defendant] says prejudice is established by his statement that but for counsel‘s errors, he would have proceeded to trial. . . . As the district court noted, ‘[i]n light of the evidence and the significant benefits which defendant received under the plea agreement, defendant has not shown how a decision to reject the plea agreement would have been rational under the circumstances.‘” (second alteration in original) (citations omitted) (quoting United States v. Clark, No. 12-2551-KHV, 2013 WL 5314429, at *3 (D. Kan. Sept. 23, 2013))); United States v. Mooneyham, 580 F. App‘x 657, 659–60 (10th Cir. 2014) (unpublished) (“[The defendant] had to identify facts indicating that ‘a decision to reject the plea bargain would have been rational under the circumstances.’ [He] cannot make that showing. . . . If [the defendant] had gone to trial, he would have faced the potential for a harsher sentence. And, had he gone to trial, he likely would have been convicted because the evidence of guilt was strong. Because [the defendant] has not identified facts indicating that a rational defendant might have preferred trial over the plea offer, he cannot show prejudice; thus, we reject the claim of ineffective assistance of counsel.” (citations omitted) (quoting Heard, 728 F.3d at 1184)); United States v. Tuakalau, 562 F. App‘x 604, 609 (10th Cir. 2014) (unpublished) (“Even were we to assume trial counsel‘s performance was inadequate under Strickland‘s first prong, [the defendant] must also satisfy the second prong by showing prejudice. . . . [The defendant] was facing a potential minimum mandatory sentence of 185 years imprisonment. We agree with the district judge: rejecting a plea bargain dismissing numerous charges and guaranteeing a thirty-year sentence would not have been rational.” (citation omitted)).
Indeed, there appears to be no indication in the record that Mr. Dominguez ever broached the better-plea theory before the district court. Rather, he framed his prejudice argument in terms of the denial of a trial right (i.e., under the Hill rubric). See, e.g., R., Vol. V, at 100 (where defense counsel argued that, had he better digested the First Step Act‘s impact and advised Mr. Dominguez of that impact, while he “c[ouldn‘t] say for certain that [Mr. Dominguez] wouldn‘t have changed his plea [to guilty], . . . [he] c[ould] say almost for certain [Mr. Dominguez] wouldn‘t have changed his plea.” (emphasis added)); see also id. (“I can say that . . . had the First Step Act been out awhile, . . . had we been sitting here today moving to change his plea, he wouldn‘t have changed his plea; we would be preparing for a jury trial.” (emphasis added)). And he does not invoke the plain-error rubric in advancing this theory on appeal. Therefore, on this basis (...continued) alone, Mr. Dominguez seemingly has failed to preserve the better-plea theory. See, e.g., Fish v. Kobach, 840 F.3d 710, 729–30 (10th Cir. 2016). However, as we do infra, we exercise our discretion to overlook any preservation issue arising from these circumstances and reach the merits; having done so, we conclude that Mr. Dominguez does not prevail in any event.
The Sixth and Ninth Circuits have signaled their openness to considering a better-plea theory in assessing prejudice arguments under Strickland‘s framework; notably, in the last ten years, according to our research, these two circuits appear to have focused their attention on the immigration context. See, e.g., Rodriguez-Penton v. United States, 905 F.3d 481, 487–88 (6th Cir. 2018) (citing Missouri v. Frye, 566 U.S. at 141–42, in reasoning that “[r]ecent Supreme Court authority has expanded Hill‘s holding in material ways,” and “hold[ing] that [the petitioner] may demonstrate prejudice if he can show that, had he known [from competent counsel] about the risk of adverse immigration consequences, he would have bargained for a more favorable plea” (emphasis added)); United States v. Rodriguez-Vega, 797 F.3d 781, 788–90 (9th Cir. 2015) (allowing a defendant to show Strickland prejudice either by demonstrating that “there existed a reasonable probability of negotiating a better plea by identifying cases indicating a willingness by the government to permit defendants charged with the same or a substantially similar crime to plead guilty to a non-removable offense” or “by showing that she settled on a charge in a purposeful attempt to avoid an adverse effect on her immigration status“—all while holding, in the alternative, that the defendant established prejudice because she demonstrated a reasonable probability she would have gone to trial “in the absence of a more favorable plea agreement” (emphases added)); cf. United States v. Howard, 381 F.3d 873, 882 (9th Cir. 2004) (in a decision from a prior decade, involving a federal criminal defendant in a
In the interest of completeness, we do highlight certain stray language in Heard that alludes to a better plea bargain in the ineffective assistance setting. Importantly, recall that Heard analyzed a Strickland prejudice question in the guilty-plea context by invoking Hill‘s well-established rubric. See Heard, 728 F.3d at 1186 (“However, in light of all of the possibilities for a more favorable outcome we have discussed . . ., we hold that as a matter of law, [the petitioner] has carried his burden to demonstrate ‘a reasonable probability that, but for counsel‘s errors, he would not have pleaded guilty and would have insisted on going to trial.‘” (emphasis added) (quoting Hill, 474 U.S. at 59)). But, in the course of its Hill analysis, Heard makes the following statement:
[T]here are several ways [petitioner‘s] lawyer credibly could have favorably ‘changed the outcome’ of [petitioner‘s] case had she made reasonable use of those cases. For example, it is reasonably probable that bringing those cases to the prosecutor‘s attention during the plea-negotiation stage could have resulted in a better bargain, lesser charges, or even dismissal of the case altogether.
Id. at 1184. Though this language does refer to the reasonable probability of negotiating a better plea deal, we do not think this brief aside can be reasonably viewed as any form of meaningful engagement by the Heard panel with the question of whether a better-plea theory of prejudice is cognizable under (...continued) Strickland—much less as endorsement of such a theory. Significantly, Heard‘s remark concerning a better plea deal comes in the context of a prejudice analysis expressly grounded on Hill‘s rubric concerning the denial of a trial right. And, at most, the panel makes this plea-deal observation in bolstering its contention that the Hill measure of prejudice was satisfied. Therefore, Heard does not illuminate the cognizability question concerning the better-plea prejudice theory, and the matter remains open in our circuit.