morning in may it please the court i represent mr pole i'd like to reserve three minutes for rebuttal this is the second time the parties have appeared before the court on this case the first appeal the court ruled that if polis trial counsel had failed to honor his request to appeal that would constitute ineffective assistance of counsel on remand the district court found that he had in fact been denied effective assistance counsel and claim number three says he is claiming ineffective assistance of counsel when he expands that later in the petition he does not address this particular immigration issue of course at the time that he was writing that petition he was in custody and he had not been deported so this issue had not fully ripened when he filed his is pro se petition that's correct  you say that they want to way you can raise that is after you've been the poet and then you can raise it but you can't do it before it even if you know what the law is you know your honor i'm not saying that what i'm saying is that the allegation news petition claim number three that he was denied effective assistance of counsel is judging in the light of how we view pro se petitions which is with little more deference than we might  for petitions filed by attorneys that it's expansive enough for the court to consider this issue and the question of the i see itself ear you're basing this on padilla and you say that the court didn't say the magic words at the plea proceeding and you claim that his attorney didn't advise so we're up to this point right through you now going beyond that the way i read this material so correct me if i'm wrong there is the there is the implication that he therefore didn't know all about the consequences of the plea but nowhere does this carefully nowhere that i can find does it say does he does he ever claim he didn't know and all of the other inferences that one would draw from the record very clearly state that he did know based upon what the u attorney said at the hearing so bottom line does he claim he didn't know or does he simply say he or is this a case where we didn't know but the but the judge didn't say the magic words you know you are what we do have a statement mr poland in the record in the change of plea here so when he is talking with the court of understanding the nature of the plea understanding the facts he says he wants to stay in and fight the deportation so that indicates that he's aware there are deportation issues but he believes that he can fight them that there are deportation hearings and the statement by the prosecutor at the end of  change of plea hearing talks about deportation hearings but the reason that i'm asking it is what seems to have gone on reading between the lines here is there was some misunderstanding or disagreement about whether he would be a mediately taken into custody and deported but there doesn't seem to be really any dispute here that he knew there were immigration consequences is that a fair reading of this i think it's fair to say that he knew there would be deportation consul what specifically then under padilla was he owed by the judge or his lawyer that they didn't tell you what those consequences would be it's very different you're either deported or not deported so what are the other consequences that you say padilla requires the judge to say it's very different to have a deportation hearing where it deep or where an immigration judge can make a decision based on the facts in some manner of discretion whether you stay in the country or not the correct understanding of the law would be that i don't have any right to stay in the country i'm a and because this is an aggravated felony felony i'm going to be deported and there is no defense there is no indication that he was ever advised of those consequences and those are the consequences that the deer requires to be  to be given to the defendant so that he can understand and make a choice about whether he wants to give the reason i'm asking is padilla says that that the court said katz additionally competent counsel would have advised him that his conviction for drug distribution made him subject automatic deportation and other words go no go deportation no no deportation and it seems to me that he knew that here and that the u s attorney fill in any gaps that might be otherwise missing where do you get the authority that the that somebody his lawyer or the judge had an obligation to go into more detail about what the consequences were of his conviction beyond the mere fact that he might be deportation when those issues come up but it's an automatic you're already you've already lost that issue and judging from his statement at the change of plea hearing and the only statement from the government at the change of plea hearing that talks about deportation proceedings will commence it's clear that mr dia misunderstood what the consequences would be and it could very well be that the prosecutor misunderstood what the consequences would be as well and i think  requires him to understand the full consequences of deportation so he can make that decision do we have any cases that articulate what the judge is supposed to what what that advice from the judge is supposed to include well i'm not aware of any cases that address exactly what what the information should be what the speech from the judge should be but i think the the only fair reading via use is if someone is an aggravated phil one who is subject to automatic deportation you have to tell him that you have to tell him that you aren't even even if you already know i'm i don't know how that case would come out your honor but i think that i don't believe that is this case that you are saying this isn't an automatic deportation case no i'm saying that he did not know it was an automatic people table was it or wasn't what drug conviction it was it was an it it is an aggravated felony he was subject to automatic deportation and the record indicates that he didn't know that there's had a district court hearing on the motion for ineffective assistance of counsel but it did depend that the petitioner here raise anything about that at this hearing before the district court the hearing was limited to the question of whether he asked his counsel to file a notice of appeal in it but that it was based upon ineffective assistance of counsel he did raise that nor did he raise the fact that that counsel told him he would have time served and therefore he was an effective because of that well both those issues came up your honor and in fact trial counsel testified that that he and polk mr pola were both surprised to see an immigration agent at sentencing who intended to surprised by the immigration consequences of what had happened to the change of police here we was an appeal taken from that saying that the district court should have made a ruling on those issues well this is the this is the belated appeal of of the sentence of the conviction and i believe all those issues are properly before the court according to the mandate from the first appeal and we could raise those issues before issues that have been raised in his petition i just would like to say for a minute to talk about the second but let me just follow up on that yes or refly so we're always concerned in a twenty to fifty five whether something has been properly presented was this presented what i think you might have referred to earlier is a subset of an argument i think you're going back to judge so i was questioning yes  assistance so the district court didn't deal with it and the evidentiary hearing didn't deal with that that's right you're and we're not dealing with an exhaustion question here because it doesn't come from from state court so this this question then is is it is it correct to say it's coming before us for the first time they think that's correct your honor so i believe there's a sufficient record for the court to decide whether he was given the proper instruction about the automatic deportation certainly the court could remand for  evidence or hearings in the court below but i believe the record sufficient for that for the court to decide this issue as it's presented to the court now i'd like to raise in the time i have remaining th day of the plea he was released under a motion in which he and the government agreed that he it's already served the full senate he was likely to receive course the government said at the hearing that it did not necessarily agree with that part of the motion but the statute eighteen u s c thirty one forty three does not allow mr polo pete to be released unless the court finds that the government doesn't believe that he will have to serve additional time in custody so there is no doubt from the record that his expectation was that when he went to sentencing he would go home and he would be released and sentenced to time served and the prosecutor admitted that at the sentencing hearing of course that he was badly missed in form and he was soon as to say that forty six months  if he were convicted at trial then he would be a level twenty six so that's sixty six to seventy nine months or so it could get more tat so he could get more time also some of them were for personal use their argument was never raised at sentencing there was no sentencing memo filed but the important thing is that he has made a decision that he would rather take the risk of an additional fifteen to twenty months in prison to be relieved of the immigration consequences and be allowed to come back into the united states and be with his family his wife and his two children well it might be related division immigration and if he is if he is convicted if he vacates the conviction if he's convicted again then he'll be on aggravated still want to ghana and he'll be subject to automatic door deportation thank i'd like to take about fifteen or twenty seconds to note the fact there are several young people in our inner courtroom today and i think many of them are law clerks from the summer from the u s attorney's office and from mr wicker's office and in reflecting on and i realize that it was thirty three years ago that africa came to this court as an intern for us as as a from a large law firm and so for thirty three years i've had the pleasure of arguing cases in this court in front of three judges as well as most of the others and i want to tell you it's a great privilege i'm going to retire in two more months so this will be my last argument and then it gets to me but at any rate  i'm excited about it but i'm afraid all people were so i'll have to find something exciting to do keep coming back to watch i may that may be my hobby to come sit in court and second guess all the arguments that other people make in that thirty three years for seven years i have been working on a soap poll this appeals in various can it various aspects as the court has read the record in this case extensive my involvement began in april of two thousand and ten when mr polis original pro se appeal was dismissed as being untimely without going through all that lengthy record we are here today on the simple direct appeal by mr poll in which he claims his counsel was ineffective in the two ways that the court has already recognized he contends that his counsel mis advised him as to the length of the sentence that would be imposed on the basis of his offer plea and then he contends that he was never a vast appropriately of the deportation that would happen as a result of his being convicted of the aggravated felony that the drug distribution amana to on the deportation issue trying to figure out exactly what the argument is and it seems perhaps that it's coming down to he may or may not have known there were some deportation consequences but that he wasn't told that this was one this was a because it was  drug felony would subject to being automatically deported so he seems to be saying ok a new i might be deported but i thought i had a way to beat the deportation and i should have been told otherwise is that your understanding  as family attuned to that issue at that time and one more point the judge had no responsibility at the time to give him information about the deportation or immigration consequences of his offer it does not retroactively apply in a twenty to fifty five your honor there's a case called chides have believe it's it's called and it does not apply retroactively so if he were to raise this in a twenty two fifty five today for the first t it would be barred because it's not retroactive but it was pending his appeal is pending when it because of the unique nature of this case he counts as one who's now in direct appeal and so we didn't even try to argue that this direct appeal is barred by the says that if you are going to be deported on the basis of a i believe the language and is a clear and sync statutory provision then that should be the advice that counsel gives to his consideration because in order of course to make out ineffective assistance of counsel claim yes to demonstrate that his counsel's representation was deficient and also that the results of the proceedings would have been different but for counsel's failure to give in that good advice so if he learns of it in other way and if he has reason to know that he will be deported because of a statute or that or for any recent including whether the assistant united states attorney announced that in court quote he knows he's going to be deported i believe is the quote from this is to u s attorney the neck as to the issue of whether or not the results of the guilty plea would have been different i would point out that he never moved to withdraw his guilty plea in the district court at any point obviously this issue perk for quite a while but never during the course of that of these the lengthy proceedings did he ever say to the district court i want to withdraw my guilty plea the first time he sought to ask for relief on this deportation issue is in this appeal he never raised it in his twenty two fifty five petition he didn't raise it in the  original appeal that he filed in this court which was dismissed as untimely so the first in this court has seen it is that claim properly before us in your mind in this twenty two fifty five i think the record is sufficient for this court to rule that he has circumstances of this case result in ineffective assistance of counsel the record it's not sufficient for this court to determine that he did get ineffective assistance of counsel and are you saying there's the both there's no showing of either deficient performance and prejudice are you focusing on predators i would focus on prejudice your honor because i think again in twenty twenty hindsight after paid via his counsel probably did have a responsibility to advise him you will be deported again the record shows at the time he pled guilty he was advised of that in open court i would point out one other thing how can it be deficient performance if the dia came later and that's why it is not retroactive your honor but there's a series of arguments that say defense counsel should have anticipated that's right something that was going to come down the road and that would be applied retroactively in some cases was that true which there was some differences of opinion but it certainly wasn't something that the lawyer in this case contemplated i don't know what was in his mad at to research the issue or knew what the what the cases had said from either this circuit or others but after dia that question was certainly answered by the supreme court as to what counsel should say i would point out that there were other factors in this case that led everybody in the whole court system to understand that the immigration consequences of his to pull this off her plea were imminent because as you recall judge kaufman when she was deciding whether or not to accept the offer plea she was puzzling about how this would work and in fact recognize that the immigration and customs enforcement agent who had been the investigating agent on this case because the bring in of these drugs back and forth over the canadian border she she basically was trying to understand whether there was or wasn't a detain or a hold i think is what she called the gas and the immigration and customs enforcement agent said your honor he's a resident a legal resident alien and we can't put a hold on him until he is sentenced and of course it's at the point of conviction and sentencing when he is stands convicted of the aggravated felony that would result in his automatic deportation so the there were certainly lots of disk there was a lot of discussion about how the ins or the as the in foresman and the resulting deportation would work the other thing that was clear is that that he was surprised that he got a sentence under the sentencing guidelines when he was really surprised at is that he wasn't going to walk out of the courtroom even if he had not been sentenced to forty six months he apparently operated under the misapprehension that somehow he would be allowed to remain free pending some some immigration hearing of some sort and in fact at the at the twenty sixteen evidence you're hearing he said that he hoped he'd be able to self remove or that he hoped he'd be able to fight the deportation from louisville i am unaware of what process due process he might have been able to invoke to attack his conviction perhaps he thought since he had entered that offered plea this would not count as a conviction for purposes of the deported taishan statute but we'll never i know that because when he was in when he was released from prison in ohio he blazed any deportation hearing he simply said i don't want any further proceedings i don't know if it could have been availing or at least stretch this out so that he could have had an opportunity to attack his conviction to say that it doesn't amount to a conviction for an aggravated felony but that falls on him because he agreed to be deported to back to canada so that's the reason for much of this is that in the inability to bring him back to the united states for purposes of his twenty two fifty five hearing on the issue of whether or not he was mis advised by his counsel of the potential sentence that he would face the record is clear that he did not suffer ineffective assistance in that in that aspect of his sentencing he was advised repeated lee that judge kaufman that he would be sentenced under the sentencing guideline she said to him there are no promises made to you there was no plea agreement so he had no reasonable basis to conclude that he would be sentenced to this time served that he later claimed in his twenty to fifty five petition had been promised to him in his twenty two fifty five petition he said that he had been lured and that is his words but the defense counsel into accepting this refused that there were any such representations made by the united states the representations his lawyer made in the later twenty to fifty five hearing word hope a hope for an end to the paid result of relie i agree that he may be released because he's going to be deported and he knows that this is falls into the category of no good deed goes unpunished because the second thing that he said was we recognize the motion th council has made on this proposed behalf but we completely disagree with the representation in that motion that he will get time served and again on the heels of the judge's explanations of the sentencing guidelines and mr po explanation and his professed understanding of the guidelines because he had studied it it's clear that the united states never entered into any kind of tacit or or overt or any sort of agreement that was made contemporaneous with that guilty plea and at the plea he said i recognize the motion it's ok if he's released but we do not agree that it would be because he is only going to be sentenced to time served at the time he's been sentenced one other point that was raised i believe it was you judgement keith who asked whether there had ever been an objection to the ruling on the twenty two fifty five  noted that in the twenty two fifty five petition mr polak claimed that his lawyer and the united states had lured him into this this notion that he was going to get time served at the twenty to fifty such agreement and ruled that mr pole had not made out a case that he had been lured with the promise of time served and we believe that and mr poe never objected to that finding and i think that encompasses the also the notion that the united states were him or his counsel lured him into into any kind of promise of time served and we appointed that on our brief we think the figure to object constitutes a waiver of the issue for purposes of this case i have twenty five more seconds one point last point the dept deportation issue has never been raised if it is to be considered by this court at all it should be considered under the standard  error it has to demonstrate that there is an error that was clear that is affected his substantial rights and in this court's discretion the court is free to not recognize that error if the error unless the error substantially affects the fairness integrity or gene or reputation of these judicial proceedings that was that's the standard and we believe he has failed to make out a case plain here under that standard thank you thank you it please the court i'd like to start by congratulating my good friend candace hill for her long years of dedicated service to the united states in addressing the point she made i think we agree at least on one point and i'll use her words that there was a mr paul that had a misapprehension about the circumstances of his sentencing and i think that's very fair although he said he studied the guidelines he certainly didn't understand them if he believed that he was going to get a guideline since of ninety nine months when they actually turned out to be forty six times so that indicates to us right there that he was seriously mis advised by his counsel about  allow a client who's looking at forty six months to believe that he's going to get nine months and have him make a decision about whether he wants to plead guilty based on make clete and total misunderstanding of what the guideline range is going to be you notice there was no variance motion filed in this case there was no argument of any sort of any substantial nature made about why a variance would be appropriate here there was no argument made that the pill count should have been different if the weight of the drug should have been different than what the what the government said it should be so all of those things a reasonable person would want to know all those things in deciding whether to plead guilty of the length of the sentence question a major obligation to show in effect of assistance there is an affidavit from your client purporting to say what his attorney believed about the length of a sentence and the attorney file affidavit but it didn't touch on the nature of his communications about the length of the sentence is it enough to come back and say well geez he he he he told me that it would probably in nine months and that's not even cooperated by the attorney's affidavit it doesn't address it in the attorney's affidavit your honor and certainly i didn't write that want to have anything to do with its preparation but in that hearing the evidence you're hearing his lawyer did testify that he thought he had very good arguments that he would be released with time served and in the motion that was filed by his attorney said that we expect that his his obligation to the united states will have been satisfied by the nine months he's spent in prison so that any tickets to me that his attorney believed mistakenly then he was going to be released with time served but then his testimony at the evidence you're hearing goes on to say that even though that was his belief he says he told your client that the actual sentence may be that maybe impose maybe something different but i thought we had an excellent argument certainly but how they made it up i guess what i'm worried about is opening the door to claims that attorneys said well i may get something less than what i actually got and therefore it's ineffective assistance of counsel even though all both the corps and the lawyer advised them that there were no promises and that the judge could could and would do whatever the guidelines lawyer has a moral responsibility  to tell his client the judge can do what she wants to he has to accept are you basically arguing for a rule that either anytime the lawyer says well here's what the guidelines say but i think your client will get something different i  think you'll get something different what you're saying here is that that's ineffective assistance of counsel if he's wrong and that mistake falls below reasonable standards that we require for defense counsel and when do we have any authority that says that stands for the problem the narrow proposition we're talking about now not the not the narrowing that i'm aware of your honor but certainly strickland and all of its progeny talk about what reasonable standards of defense performance are and there is no reasonable way to believe that mr pole that was going to get nine months in prison based on the circumstances he was facing when he clearly believe that was going to happen so that was the reason he pleaded guilty he did not mak knowing involuntary guilty plea in his counsel's deficient in not allowing him to understand the nature of circumstance you say that you don't think there's any reasonable basis for the attorney to have suggested time served or a lesser sentence but the record doesn't explain the basis of that apparent belief by terry is that correct i think that we don't know why he thought that or why he said that or and therefore how reasonable it or wasn't at the time other than what happened and i think i think the way to to look at your honor is the record doesn't show any reason why that would be a rational belief it doesn't show any argument for a variance and doesn't show any unusual circumstances could use to support a variance it doesn't show any disagreement about the pill count doesn't show any reason to believe there is no reason to support the advice the nine months would be the soonest that he was likely