Thomas, J., dissenting
690.
Counsel’s choice not to appeal Garza’s sentence–the only issue Garza asked his counsel to challenge–was not only not deficient, it was the only professionally reasonable course of action for counsel under the circumstances. That is because filing an appeal would have been worse than pointless even judging by Garza’s own express desires; it would have created serious risks for Garza while having no chance at all of achieving Garza’s stated goals for an appeal. Garza had pleaded guilty under Rule 11, expressly waived his right to appeal his sentence, and stated that his desire in appealing was to have his consecutive sentences “r[u]n concurrent.” Record 207. But that kind of appeal challenges the defining feature of a Rule 11 plea: the agreed-upon sentence from which the trial court has no discretion to deviate. Here, that sentence includes the consecutive sentences that Garza agreed to, then sought to challenge. Had Garza’s counsel reflexively filed an appeal and triggered resentencing, Garza might have faced life in prison, especially in light of the trial court’s concern that the agreed-upon sentence (from which it could not deviate under Rule 11) might have been too lenient. And Garza’s admissions at the plea hearings and his written plea form could have been (and thus likely would have been) used against him if he had proceeded to trial on any additional charges filed by the State after breaching the plea agreements. See id., at 104 (“[S]hould the court reinstate a plea of not guilty on his behalf, the State will use Defendant’s testimony during his entry of plea of guilty and his written plea form, during the State’s case at trial”); id., at 92 (same).
Under these circumstances, it is eminently reasonable for an attorney to “respec[t] his client’s formal waiver of appeal” and uphold his duty “to avoid taking steps that will cost the client the benefit of the plea bargain.” Nunez v. United States, 546 F. 3d 450, 453, 455 (CA7 2008)
