PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT
__________
No. 13-3111
___________
UNITED STATES OF AMERICA
v.
COSMO FAZIO,
Appellant
__________
On Appeal from the United States District Court
for the Western District of Pennsylvania
(No. 2-09-cr-00325-006)
District Judge: Honorable Terrence F. McVerry
Argued: October 1, 2014
_________________
Before: AMBRO, CHAGARES, and VANASKIE, Circuit
Judges.
(Filed: August 4, 2015)

Almon S. Burke, Jr., Esq. (Argued)

U.S. Steel Tower
600 Grant Street, Suite 660
Pittsburgh, PA 15219
Mark A. Goldstein, Esq. (Argued)
Goldstein & Associates, LLC
1125 Penn Avenue, 3d Floor
Pittsburgh, PA 15222
Counsel for Appellant

Michael L. Ivory, Esq.

(Argued)
Rebecca R. Haywood, Esq.
Office of United States Attorney
700 Grant Street, Suite 4000
Pittsburgh, PA 15219
Counsel for Appellee
__________________
OPINION
__________________
CHAGARES, Circuit Judge.
Cosmo Fazio appeals the District Courts denial of his
motion to vacate, set aside, or correct his sentence under 28
U.S.C. 2255. In his motion, Fazio asserted that his plea
counsel was ineffective because he failed to warn Fazio
properly of the immigration consequences of his guilty plea,
as required by the Supreme Court in Padilla v. Kentucky, 559
U.S. 356 (2010). Notwithstanding plea counsels purported
error, the plea agreement which plea counsel reviewed with
Fazio thoroughly contained a waiver of collateral-attack
rights and, inter alia, advised of the possibility that Fazio
could face automatic removal from the United States as a
result of the plea. The District Court conducted a detailed
colloquy, specifically reviewing these provisions of the plea
agreement with Fazio and questioning him regarding his
awareness that a consequence of his plea could be automatic
removal. This case requires us to determine the effect of the
plea agreements provisions and the District Courts colloquy
on Fazios ineffective assistance claim and whether the
collateral-attack waiver is enforceable. For the reasons that
follow, we will affirm the District Courts denial of Fazio's
motion.
I.
On December 9, 2009, a federal grand jury sitting in
the Western District of Pennsylvania returned an eight-count
indictment against Fazio and twelve co-defendants for their
alleged involvement in a cocaine distribution network. Fazio
was charged only in Count One of the indictment with
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conspiracy to distribute and possess with intent to distribute

five kilograms or more of cocaine, in violation of 21 U.S.C.
846. On June 3, 2011, Fazio pleaded guilty to the lesserincluded offense of conspiring to distribute more than 200
grams but fewer than 300 grams of cocaine. Supplemental
Appendix (Supp. App.) 12. Fazios plea agreement
contained the following provision:
Cosmo Fazio waives the right to take a direct
appeal from his conviction or sentence under 28
U.S.C. 1291 or 18 U.S.C. 3742, subject to
the following exceptions:
(a) If the United States appeals from the
sentence, Cosmo Fazio may take a direct appeal
from the sentence.
(b) If (1) the sentence exceeds the applicable
statutory limits set forth in the United States
Code, or (2) the sentence unreasonably exceeds
the guideline range determined by the Court
under the Sentencing Guidelines, Cosmo Fazio
may take a direct appeal from the sentence.
Cosmo Fazio further waives the right to file a
motion to vacate sentence, under 28 U.S.C.
2255, attacking his conviction or sentence, and
the right to file any other collateral proceeding
attacking his conviction or sentence.
Supp. App. 34. The plea agreement further stated:
Cosmo Fazio recognizes that pleading guilty
may have consequences with respect to his
immigration status if he is not a citizen of the
United States. Under federal law, a broad
range of crimes are removable offenses.
Removal and other immigration consequences
are the subject of a separate proceeding,
however, and the defendant understands that
no one, including his own attorney or the
district court, can predict to a certainty the
effect of his conviction on his immigration
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status. Defendant nevertheless affirms that he

wants to plead guilty regardless of any
immigration consequences that his plea may
entail, even if the consequence is his automatic
removal from the United States.
Supp. App. 3. Fazio was born and raised in Bari, Italy and
immigrated to the United States in 1992, at the age of twentythree. Supp. App. 27. He is a permanent resident alien.
Appendix (App.) 50.
At Fazios plea hearing, the District Court conducted a
colloquy in open court. It specifically questioned Fazio to
make sure that he understood the appellate waiver provision
of his plea agreement:
THE COURT: Do you also understand
ordinarily you or the government may have the
right to appeal any sentence that I impose,
however, I note in Paragraph A13 of your plea
agreement, you and the government agreed that
you would waive, again, thats give up, your
right to take a direct appeal
from
your
conviction . . .
Further, youve also waived the right to file a
motion to vacate sentence under 28 United
States Code, Section 2255 and the right to file
any other collateral proceeding attacking your
conviction or sentence, do you understand that?
THE DEFENDANT: Yes, Your Honor.
THE COURT: Waivers of appeal are generally
permissible if entered into knowingly and
voluntarily unless they work a miscarriage of
justice. I have examined the record in this case,
observed you and heard your responses to my
questions in open court, and I find no basis for
invalidating your waiver in this case.

App. 2628. The District Court also questioned Fazio

regarding the potential immigration consequences of his
guilty plea:
THE COURT: Mr. Fazio, in addition to the
possible penalties of which I have advised you,
because you are not a United States citizen, you
will also face a risk of removal from the United
States after you have served any sentence
imposed by this Court.
Under federal law, a broad range of crimes are
removable offenses, including the offense to
which you are pleading guilty. Removal and
other immigration consequences are the subject
of a separate proceeding, however. Do you
understand that no one, including your attorney
or me or the governments attorney can predict
to a certainty the effect of your conviction on
your immigration status?
THE DEFENDANT: Yes.
THE COURT: Now knowing this, do you
nevertheless want to plead guilty regardless of
any immigration consequences that your plea of
guilty may entail, even if the consequence is
your automatic removal from the United States?
THE DEFENDANT: Yes.
App. 2223. Fazio informed the District Court that he
understood the nature of the offense to which he was pleading
guilty. App. 16, 28. He also confirmed that he had reviewed
the terms of the plea agreement with his attorney and
understood those terms. App. 17, 35. The District Court
found that Fazio was competent to plead guilty and that he
was doing so knowingly and voluntarily. App. 4445.
Accordingly, the court accepted his plea.
Fazio was represented by counsel at the time of his
guilty plea. His counsel was aware that Fazio was not an
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American citizen. App. 99. His counsel testified that, prior

to the plea hearing, he informed Fazio that there
could be immigration consequences. However,
it was my opinion that he would be entitled to a
hearing. And given what I had learned of his
family and friends and background, I was
confident that with competent immigration
counsel, being unaware of the law, that he stood
a good chance of not being deported. I certainly
told him it was a possibility, however.
App. 105. In addition, he testified that he reviewed the plea
agreement with Fazio line by line, including the provision
regarding immigration consequences. App. 106. After
reviewing that provision, he told Fazio that there was
certainly a chance he could be deported, but it was my
opinion he would not be. App. 107.
After Fazio pleaded guilty, his wife became concerned
about the possible immigration consequences of his
conviction and contacted a law firm specializing in
immigration law. App. 54. On June 13, 2011, ten days after
the entry of his guilty plea, Fazio, his wife, a family friend,
and his plea counsel met with immigration attorneys Mark
Goldstein and Andrew Wood. App. 55. During that meeting,
Goldstein stated that it was certain that Fazio would be
deported because he had pleaded guilty to an aggravated
felony. App. 56. Goldstein, Fazio, and Fazios wife
discussed the possibility that Fazio might request a change to
his plea agreement to attempt to avoid this consequence.
Fazios plea counsel expressed that he had been unaware of
the immigration consequences of the plea, that he had made a
mistake, and that he would help Fazio rectify the situation.
App. 56.
In July 2011, Fazio terminated his plea counsel and
retained new counsel. App. 5758. On November 1, 2011,
Fazio moved to withdraw his guilty plea pursuant to Federal
Rule of Criminal Procedure 11(d)(2)(B). Supp. App. 3536.
He argued that he was denied his Sixth Amendment right to
effective assistance of counsel because his plea counsel failed
to advise him properly regarding the immigration
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consequences of his plea, as required by the Supreme Court in

Padilla v. Kentucky. Supp. App. 38. At the evidentiary
hearing, Fazios plea counsel testified that he told Fazio that
he had an absolute right to at least a hearing, and that he
thought [Fazio] had a greater likelihood of staying in the
country than being deported. App. 117. Goldstein testified
that the consequence of Fazio pleading guilty to an
aggravated felony was that he would have no defense to
deportation. App. 76. During cross-examination, Goldstein
conceded that it was possible for someone who was convicted
of the identical crime as Fazio to remain in the country if the
person was provided with an S visa, given to some noncitizens who provide assistance to law enforcement, App. 83
86, or if there was a change in law, App. 9192. On
December 27, 2011, the District Court denied Fazios motion
to withdraw his guilty plea, finding that his attorney did not
violate the standard in Padilla, and that even if he did, the
Courts plea colloquy cured any error. Supp. App. 24, 4041.
Following his sentencing, Fazio filed a direct appeal
with this Court. The Government moved to enforce the
appellate waiver in Fazios plea agreement. We summarily
granted the Governments motion to enforce the appellate
waiver and affirmed the District Courts judgment.
On April 9, 2013, Fazio was issued a Form I-862,
Notice to Appear, by the Immigration and Customs
Enforcement of the United States Department of Homeland
Security, placing him in removal proceedings. App. 120.
Fazio filed a motion under 28 U.S.C. 2255 on April
11, 2013, again asserting that his plea counsel violated
Padilla. The Government moved to enforce the collateralattack waiver in Fazios plea agreement. The District Court
granted the Governments motion and denied Fazios 2255
motion. App. 7.
Fazio filed a timely notice of appeal. On October 10,
2013, this Court granted a certificate of appealability and
directed the parties to address the following issues: (1)
whether the District Court erred in enforcing Fazios
collateral-attack waiver; and (2) whether Fazio was entitled to
relief on his ineffective assistance claim. App. 8.
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II.
The District Court had jurisdiction over this action
pursuant to 28 U.S.C. 1331 and 2255(d), and we have
appellate jurisdiction pursuant to 28 U.S.C. 1291. We
review the validity of a collateral-attack waiver de novo.
United States v. Khattak, 273 F.3d 557, 560 (3d Cir. 2001).
We exercise plenary review over a district courts legal
conclusions in ruling on a habeas corpus petition and apply a
clearly erroneous standard in reviewing its factual findings.
Cradle v. U.S. ex rel. Miner, 290 F.3d 536, 538 (3d Cir.
2002).
III.
The threshold issue in this appeal is whether the
District Court erred in enforcing the collateral-attack waiver
in Fazios plea agreement. A criminal defendant may
knowingly and voluntarily waive many of the most
fundamental protections afforded by the Constitution.
United States v. Mezzanatto, 513 U.S. 196, 201 (1995).
Further, a defendant may waive the statutory right to appeal if
he does so with knowledge of the nature and consequences of
the waiver. Khattak, 273 F.3d at 561. Thus, we will enforce
appellate or collateral-attack waivers when they are entered
into knowingly and voluntarily and their enforcement does
not work a miscarriage of justice. See United States v. Erwin,
765 F.3d 219, 225 (3d Cir. 2014); Khattak, 273 F.3d at 561
([W]aivers of appeals, if entered into knowingly and
voluntarily, are valid.). Fazio argues that the collateralattack waiver in his plea agreement was not made knowingly
and voluntarily and that enforcement of the collateral-attack
waiver would constitute a miscarriage of justice.1
1

Fazio advances an additional argument that we should not

enforce collateral-attack waivers because they are contrary to
public policy and procedurally unconscionable as a result of
the Governments excessive bargaining power during plea
negotiations. We have previously noted the benefits of such
waivers to the defendant, government and court system, and
thus have refused to find waivers of appeal rights violative
of public policy. United States v. Mabry, 536 F.3d 231, 237
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A.
We consider first whether Fazio entered into the plea
agreement knowingly and voluntarily. His plea agreement
clearly includes a broad appellate waiver that applies to both
direct appeal and collateral-attack rights. Counsel explained
the waiver to Fazio and he signed the agreement,
acknowledging that he understood its terms. Further, the
District Court asked Fazio at the plea colloquy whether he
had been coerced into entering the plea agreement and
discussed its terms with him. The District Court ultimately
found that Fazio was competent to plead guilty and did so
knowing the consequences of his plea. We conclude that it
did not err in finding that Fazio entered into the plea
agreement knowingly and voluntarily.
B.
As Fazios plea agreement was knowing and
voluntary, the appellate waiver must therefore be enforced
unless we identify the unusual circumstance of an error
amounting to a miscarriage of justice in his sentence. Erwin,
765 F.3d at 226 (quotation marks omitted).
This
determination depends on factors such as
the clarity of the error, its gravity, its character
(e.g., whether it concerns a fact issue, a
sentencing guideline, or a statutory maximum),
the impact of the error on the defendant, the
impact of correcting the error on the
government, and the extent to which the
defendant acquiesced in the result.
Id. (quotation marks omitted).
Fazio argues that enforcement of the waiver would
work a miscarriage of justice because he received ineffective
assistance of counsel. In United States v. Mabry, we noted
(3d Cir. 2008) (citing Khattak, 273 F.3d at 561).
therefore reject Fazios arguments.
9

We

that a miscarriage of justice may exist in a case raising

allegations that counsel was ineffective or coercive in
negotiating the very plea agreement that contained the
waiver. 536 F.3d at 243; cf. United States v. Monzon, 359
F.3d 110, 11819 (2d Cir. 2004) (The appeal waiver would
be unenforceable if the record . . . revealed that the claim that
the waiver was the result of ineffective assistance of counsel
was meritorious. But if the record on appeal shows that that
claim lacks merit, the appeal should be dismissed because the
waiver should be enforced.).
We analyze Fazios claim of ineffective assistance of
counsel under the Supreme Courts two-prong test from
Strickland v. Washington, 466 U.S. 668 (1984). Under the
first prong of the Strickland test, Fazio must show that
counsel made errors so serious that counsel was not
functioning as the counsel guaranteed the defendant by the
Sixth Amendment. Id. at 687. Under the second, or
prejudice prong, he must demonstrate that there is a
reasonable probability that, but for counsels unprofessional
errors, the result of the proceeding would have been different.
A reasonable probability is a probability sufficient to
undermine confidence in the outcome. Id. at 694. In the
context of a guilty plea, the prejudice prong of the test
requires a showing that there is a reasonable probability that,
but for counsels errors, he would not have pleaded guilty and
would have insisted on going to trial. Hill v. Lockhart, 474
U.S. 52, 59 (1985). We may consider the Strickland prongs
in either order, Strickland, 466 U.S. at 670, and, indeed, we
have noted that it is often practical to consider the prejudice
prong first. See United States v. Booth, 432 F.3d 542, 546 (3d
Cir. 2005).
Fazio contends that his plea counsel was ineffective
because he did not satisfy the Sixth Amendment requirements
for counsel set forth in Padilla v. Kentucky. He faults his
plea counsel for advising him only that he would face a
possibility of deportation when in fact his plea would result in
almost certain deportation. Fazio also states that, had he been
provided with the proper legal advice, he would not have
pleaded guilty. Fazio Br. 54.

10

In Padilla, defense counsel failed to advise his noncitizen client of the immigration consequences of pleading
guilty. Counsel specifically told the defendant that he did
not have to worry about immigration status since he had been
in the country so long. 559 U.S. at 359 (quotation marks
omitted). The Supreme Court noted that there are numerous
situations in which the deportation consequences of a
particular plea are unclear or uncertain and that, in such
situations, a criminal defense attorney need do no more than
advise a noncitizen client that pending criminal charges may
carry a risk of adverse immigration consequences. Id. at
369. However, when the deportation consequence is truly
clear, as it was in Padillas case because he had committed a
removable offense, the duty to give correct advice is equally
clear. Id. Padilla was entitled to be advised . . . that his
conviction for drug distribution made him subject to
automatic deportation, id. at 360, and his defense counsels
failure to meet this requirement was constitutionally deficient
representation under the first prong of Strickland. Id.
Following Padilla, we decided, in United States v.
Orocio, that counsel was constitutionally deficient for failing
to advise a non-citizen defendant that his guilty plea carried a
risk of deportation. 645 F.3d 630, 64243 (3d Cir. 2011),
abrogated on other grounds by Chaidez v. United States, 133
S. Ct. 1103 (2013). Like the attorney in Padilla, defense
counsel in Orocio completely failed to advise his client of the
near-certain removal consequence of pleading guilty to a
controlled substance offense. Id. at 642. And like the
attorney in Padilla, defense counsel affirmatively misled his
client, telling him that he did not have to worry about
immigration status. Id. at 641 (quotation marks omitted).
We held that the failure of defense counsel to warn a
defendant that a plea would make the defendant eligible for
removal is a constitutional defect in representation that
satisfies the first prong of the Strickland test. Id. at 641.
Unlike defense counsel in Padilla and Orocio, Fazios
plea counsel did inform him that there could be immigration
consequences, App. 105, to pleading guilty. He conducted a
careful and thorough review of the plea agreement with
Fazio, including a review of the provision explaining the
possible immigration consequences of Fazios plea. Yet plea
11

counsel did not inform Fazio that the plea made him subject
to automatic deportation, as is required under Padilla in cases
like Fazios where the immigration consequences of a guilty
plea are clear.2 While Fazios plea counsel stated that it
would be more likely than not that Fazio could remain in the
United States, it is clear that Fazio was subject to automatic
removal as a result of his plea.
However, we need not reach the issue of whether
Fazios plea counsels advice constituted deficient
performance under Strickland. Any error in that advice was
remedied by the District Courts in-depth colloquy and the
language of the plea agreement itself, and so Fazio was not
prejudiced.3
In United States v. Shedrick, the defendants plea
agreement stated that his maximum potential sentence was
ten years of imprisonment and that his actual sentence would
be left to the discretion of the court after both he and the
Government had an opportunity to argue the applicability of
any other provision of the Sentencing Guidelines, including . .
. adjustments and departures. 493 F.3d 292, 295 (3d Cir.
2007). At the plea colloquy, the district court repeated that
2

In Orocio, counsel told the defendant that he did not have to

worry about immigration consequences at all. We therefore
did not need to reach the distinction drawn in Padilla between
what is required in cases where the immigration
consequences of a plea are clear (accurate advice) and what is
required in cases where those consequences are unclear
(advice that there is a risk of such consequences). Here, the
Government does not contest that it was clear that Fazios
plea made him subject to automatic deportation. Instead, the
Government emphasizes that there was some possibility that
Fazios guilty plea would not actually lead to his removal due
to an intervening change in law or the grant of an S visa.
Fazios claim of prejudice is further undermined by the fact
that he did not testify at the evidentiary hearing in the District
Court. In the absence of such testimony, there is little
affirmative evidence in the record that he would have rejected
the plea had his attorney fully informed him of its
immigration consequences.
3

12

Shedricks maximum sentence under the plea agreement was

ten years and that his actual sentence would be determined by
the court. Id. at 29596. At sentencing, the court ultimately
granted the Governments request for a four-level
enhancement and eight-level departure due to certain
characteristics of Shedricks offense. Id. at 297. Shedrick
received a sentence of 96 months of imprisonment followed
by three years of supervised release. Id.
He later filed a motion pursuant to 28 U.S.C. 2255,
alleging ineffective assistance of counsel during the plea
process for defense counsels failure to advise him about a
potential enhancement or upward departure at sentencing. Id.
at 299. We noted that all that the law requires is that the
defendant be informed of his/her exposure in pleading
guilty, and that it does not require that a defendant be given
a reasonably accurate best guess as to what his/her actual
sentence will be. Id. at 299 (quoting United States v.
Mustafa, 238 F.3d 485, 492 n.5 (3d Cir. 2001)). Shedrick
was therefore entitled only to know that his maximum
possible sentence was ten years. We explained that an
erroneous sentencing prediction by counsel is not ineffective
assistance of counsel where . . . an adequate plea hearing was
conducted. Id. We held that any erroneous sentencing
information allegedly provided by counsel was therefore
corrected by the written plea agreement and the detailed incourt plea colloquy, both of which made clear that his
maximum possible sentence was ten years. Id. at 300.
Shedrick was entitled to know his exposure in pleading guilty
and he received that information, at least in the plea colloquy
and plea agreement, if not also from defense counsel.
Fazio was entitled to be advised . . . that his
conviction for drug distribution made him subject to
automatic deportation. Padilla, 559 U.S. at 360. This risk
was made clear in both his plea agreement and during the plea
colloquy. The plea agreement stated that Fazio wanted to
plead guilty regardless of any immigration consequences that
his plea may entail, even if the consequence is his automatic
removal from the United States. Supp. App. 3. During the
plea colloquy, the District Court inquired of Fazio that,
knowing this [risk], do you nevertheless want to plead guilty
regardless of any immigration consequences that your plea of
13

guilty may entail, even if the consequence is your automatic

removal from the United States? App. 23. Fazio responded
affirmatively.
Like in Shedrick, any possible error in plea counsels
advice to Fazio was cured by the plea agreement and at the
plea colloquy. Both made clear that Fazio was willing to
plead guilty even if that plea would lead to automatic
deportation, fulfilling the requirement that Fazio be informed
of this risk under Padilla. Cf. Fed. R. Crim. P. 11(b)(1)(O)
(requiring the court at a plea colloquy to inform and
determine whether a defendant understands that, if
convicted, a defendant who is not a United States citizen may
be removed from the United States, denied citizenship, and
denied admission to the United States in the future). We
hold that Fazio did not suffer prejudice as a result of any
deficient performance by his counsel during the plea process
and, therefore, Fazio is not entitled to relief on his ineffectiveassistance-of-counsel claim.
We further hold that
enforcement of the collateral-attack waiver in Fazios plea
agreement would not constitute a miscarriage of justice. We
perceive no error in the District Courts enforcement of that
waiver.
IV.
For the reasons stated above, we will affirm the
judgment of the District Court.

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