with regard to the sentencing errors unless the court has questions and will proceed to the other issues mr chosen is a lawful permanent resident who has lived in the united states for twenty years he is married with two children who are citizens of the united states when he was faced with the criminal charges in this in these cases his primary concern was to avoid deportation deportation breaks up his family it was his primary concern and so that's what he talked to his criminal  defense lawyer about and that's why they got an immigration specialist involved in his case what he learned from those lawyers was that he had two paths to avoid deportation in his case one was a plea agreement that   voided removal and were to was acquittal after trial so that led to the question of course of how do you fashion a plea agreement that allows you to avoid removal they consulted mr burton and immigration specialist he read the charges that were it is you your were marriage fraud centrally document fraud with regard to marriages under eighteen u s c fifteen forty six a the question then becomes whether  parameters for an aggravated felony so the second question becomes is mr chosen if you keep guilty to violations of fifteen forty six say are it would that be considered an aggravated felony to determine that you look at eight u eleven zero one eight forty three fifty and what mr burton said was when you read that statute it says that violations of fifteen forty six a where you have more than one year in jail are in fact aggravated but there's a parent federal phrase that says fifteen forty six a relating to document fraud mr burton spent on an argument that relating to document fraud might be limiting language that would say that only certain portions of fifteen forty six say were violations that group that were aggravated felonies that's one of the things that he told mr chessen he told mr chosen that there was almost no case law on point at the time he told mr chosen that enumerated paragraphs and fifteen forty six a he said if you plead to the fourth paragraph which he aligned with kemp's three and six of the indictment that those were more about misrepresentations to procure documents than actual chosen wasn't told by mr burton was that for courts of appeals had rejected that argument although the seventh circuit had not at the time for other context a different stance here in the context your honor of different portions of of the immigration law yes but right right he was executing a possible argument that could be meeting court but not saying it was a good one nor it was likely to succeed in fact if left with no other options we might be able to argue this i think was the language it was it was far from a sure thing as your client testified and tried to spin the advice at the ensure hearing which the magistrate judge rejected as not credible you're out to get to the credibility question i think the way the way we read the lost credibility is in fact not an issue here vs kentucky kentucky when the statute is truly clear a lawyer whether a specialist or not should give correct advice right this issue is being litigated and actively had never been decided in the circuit so you can't say that it is in fact the decision although it comes shortly after mr chessen pled guilty it's it's when this court says looking at the statute we cannot imagine a interpretation of a fifteen honor that where this court says that it cannot imagine the interpretation to be correct the right answer here would have been at least for mr burton to tell mr chosen what he did not know for instance for courts of appeals have projected this argument no court of appeals has accepted my argument those would have been important pieces of information for mr chosen to know if he was going to knowingly and voluntarily plead guilty because his entire effort in pleading guilty was to avoid  that is enough to show prejudice the second prong of the strickland task and so to me depart of the answers that question that even if he has a slim chance of succeeding a trial any rational person would take that chance if their goal is deportation darlow go so far as to suggest that when it comes to a jury trial the burden of proof is such reasonable doubt with a jury in place that it even if it's a roll of the dice the prejudice is such that the defendant should be allowed that roll of the dice i see that i'm into my rebuttal time i'll take other questions or ok thank you ms i q mr fullerton required to allow him to do that he was a prophet made keenly aware is that as true judge found of the risks of deportation connected to pleading guilty here in fact all of the discussions he had with his criminal defense attorney mr durcan as well as with mr burton the immigration specialist who mr shays hired were premised on notion that you are going to be deported unless this argument which burton described as a hail mary would be accepted by the immigration court  hail mary yet burton testified in the magistrate found that burton told chosen in no one's heard terms that the chance of this is a quote very very difficult argument to go to trial and although you would have a high probability of acquittal it would be a possibility and then from what i read of the testimony before the ma judge that was never on the table that was there was never on the table that chasen was going to go to trial this case in fact in november of would have been of them for of two thousand and ten right after he guideline range eyes kept good by the district i mean in other words if he gets some sort of the argand like the prison sentence from pleading guilty in terms of a bargain plea with the government he decided to go to trial because it would be small if he had a trial he'd probably be found guilty which would help of course with his deportation and then the question is would he get a longer sentence now it certainly be immaterial to the question are you going to gamble on a trial now it is you're likely to lose and if you do lose you're going to get along with us right from what i can say that from very early on november two thousand  mortgage fraud and the marriage so he would have he would have had to defeat both cases to prevail in this you know there was to be guaranteed not to be deported so he knew this r immigration attorney and durkin thought would provide more fodder for the immigration authorities if they came looking for grounds to deport cheese in the absence of a written pleas they thought would be helpful to th em so you know the bottom line is that changing was certainly aware of the prospect of being deported you certainly where this chances of prevailing were very slim he actively worked with his more thank you ron i think i can address a few of those questions first of all although i could not find the cite in the record immediately mr durcan absolutely testifies in our one fifty one the evidence here even before the magistrate that he and mr chosen have long discussions about going to trial mr durcan disagree but mr chosen absolutely wanted to go to trial note as the government mentioned there is no plea agreement here i think the answer your question your honor as to whether he would get a longer sentence is no the mortgage  fraud the facts of the mortgage fraud became related conduct in the sentence in in the marriage fraud case so i don't think there would have been a material difference there in the end i would say that even to barlow answers that question again it doesn't really matter for prejudice sake  non citizen of the united states the court with misters of arsenic sitting there said mistress of atsic you're not a citizen correct and went through and explained to him the deportation was a consequence mr chen and sitting there with the same characteristics given no such warning by the court at all not sure what someone supposed to take from that but i was not surprised that someone who is a lawful permanent lawful permanent resident would be automatically deported if it's an aggravated in eleven a one hundred forty three this one is under subsection p the issue of the hail mary football term not something that non citizens are necessarily familiar with hail mary's work sometimes they don't always work when you look at the statistics on hell marys they work once in a while this doesn't work the government has never suggested that he isn't going to be mandatorily deported the government hasn't conceded or offered that he would that they would not proceed with deportation because the advice was wrong when you look at the third circuit's most recent decision in fazio they say that if the advice here has to be automatic deportation they say that's the correct advice when automatically forty minutes if it is you look at it you have to give that coming they made it seem as though he had two paths to avoid deportation he only had one they misled him about the case law that was no there's no suggestion that he might be able to plead with hold a no i defer all time is up i do have one procedural with the last we did ask for a release pending appeal a different panel denied that but said at the time that the court would reconsider after hearing argument we think there is strong justification  for reconsidering that motion mr chosen this route is scheduled to report on june eighth so we hope that you reconsider it quickly and allow him release pending appeal because we think the right answer here is to allow him to withdraw his guilty plea and go to trial