sort of a french ok well i'll follow your lead and how do you explain his statement in the amended plea agreement that he understands a conviction in this case may subject him to deportation well i consider that actually to be part of the what we call the contemporaneous evidence in this case which would indicate that mr de fer did not understand what he was looking at looking at the determination that he would be subject to deportation at some along the way because there's the language in the plea agreement was equivocal and said may you may be subject to deportation but in fact if you read the statute the particular statute under title eight it indicates that a cr turpitude will subject one to deportation or removal the same way another statute under title eight indicates that in aggregate aggravated felony will subject one to remove or deportation but that counsel there's no i mean i don't i can't think of any other way to put it in a police agreement i mean this is true for criminal cases as well  the for the judge to say or for the plea agreement to say you will be subject to deportation would be to have the court essentially assume the duties  maximum term of imprisonment is we say you may be subject to a term of imprisonment of up to x years we don't say you will get x years a term of imprisonment because at that point you can make that determination so i don't know how you could put it well i think if you say you well then you are basically referring back to the statute which says that you will be subject to deportation if there's no resistance the worst thing that can happen to you and that situation i mean that's the ultimate you're getting kicked out so he was advised that the ultimate could happen and you know and i think like gesture of said you know i mean people can have there can be a lot of reasons that they may want to adjust their status or things along those lines it's it's and also to i've seen cases come up to the ninth circuit that i've to centered on and i don't think there's any legal basis that someone gave them related but they got it so your it's but if you say this you know the declarations of mr de fer and his uncle mr price indicated that he would not have to worry about deportation so the case law has interpreted the importance and the the relevant  importance of a court statement or what anything that the prosecutor might say on the record at the time of please call a query or the acceptance of the plea agreement is is is of no moment if you have a situation where the attorney for the defendant is telling the the defendant look don't worry about it the judge is saying you're going to be deported but in fact you're not going to be deported so worried that it and asking us if this case were reminded to determine whether mr  hearing in order to make that determination the court could do that we didn't ask for the evidence or hearing the briefing because we feel confident that the conviction should be vacated on the basis of the record the fact of the matter is is that there was affirmative in miss advice in this case you were to accept the fact that what they didn't report appears to do here is to say look i don't need to decide the first prong because i'm jumping to reckoning to the second prong and i'm saying that it's not highly unlikely that mr  would have gone to trial in this case he wasn't going to get a better plan mean for the government and he wasn't going to go to trial because under the unpublished decision of the last gasp which is no longer a good law under lead it would be highly unlikely for him to do so and that's that's what i was getting at because the district court at the time it made its ruling really didn't have the benefit of the lead decision and so the district court then jumped immediately to prejudice saying he couldn't have gotten a better deal the evidence was overwhelming which the supreme court has now said is not the correct analysis well i'm not blaming the defense for and we're not certainly not faulting the decision if that's where the court wanted to go but we feel that the evidence is clear and uncontroverted based upon not only mr de fer declaration which he governs as well that's post hoc but the fact that there was also the uncle's declaration to back it up just take twenty more seconds to go through the rest of what i wanted to present just initially which is the fact that it appears from looking at quantity chanda to ninth circuit case your case is there was no evidence taken from counsel there's a suggestion that you've got to get counsel about deportation and the fact that he had a wife and children from the united states an extended family here and finally that removal was as dire to him as any prison sentence that he might pursue and therefore he would have sought that hail mary that the lead opinion talked about in this case and gone to trial in order to avoid separation from his family to return to a country has had no contact with for a long time  good morning may it please the court my name is julia cho in behalf of the united states this is not just jump right to it you can see that the district court finding no prejudice is contrary to the right that is respectfully not the position of the government the position of the government is that the district court correctly did apply what was forthcoming in lee in the size of the district court did evaluate the two questions would the defendant otherwise have gone to trial or would the defendant otherwise have received a better plea bargain the doctor that's not no longer valid under lee how do you distinguish the district court's prejudice analysis in this case from the  prejudice analysis in the lead case focus on a number of factors that are not present here first the the lead court in the supreme court decided that in only in unusual circumstances in the circumstances where there was contemporaneous evidence that deportation and avoiding deportation was the determined a factor in that defense decision to plead guilty  in this case that's what the defendant is claiming that's what the waiting deportation is also be determinative factor so what i see from the district court's analysis because of course at that time the district court didn't have the benefit really therefore the district court focused on whether the result would have been different and that's the wrong inquiry so the district court talked about the strength of the government's case talk about the fact that in light of that defendant declaration in this case he formative police said that was my primary consideration and because i had a green card i was told by mr price that pleading guilty to this crime will not have any immigration consequences because it was not a deportable crime so i don't see the distinction between what he's claiming here and the least situation is i think your honor presents two points on just them in order first the question of whether the dish or course an s was correct i believe that the district court's analysis and the framework that the district court was using was actually correct the district court was evaluating whether the defendant otherwise would have gone to trial it is true that the diff that the district court did evaluate the available defenses at trial but in the way the district court formulates its order that factor is only a part in deciding what they really changed the lands and really changed the paradigm because i have to say before i looked at les i looked at that and said he's got a mountain of evidence against him there's no way he was going to when and that you know that's how you usually how you usually look at prejudice but in this but police said that's not the right way to look at it and last time i checked i'm not on the u s supreme court so i have to look at it differently and it it's a different lens and i think there's also i wonder can you just there's a case in our recent unpublished decisions united states v chan that it seems that that goes against you too so first i think that lee it may have changed the lens and  have reiterated the fact that additional court can look at whether a person would have been successful at trial and that is not what the district court did but what we also did is that it emphatically emphasized that you cannot reverse a district mr first declaration to be credible than how would you distinguish lee i think in this case the district court did not find the declaration to be sufficient i think the district court saw that the declaration did say that he otherwise may have risk going to trial can't say that or it is your part didn't know what the dishes were do not specifically say that but the district court did find in this prejudiced analysis that it wasn't likely the defendant would have gone to trial  otherwise we would have received a plea bargain that's in contradiction to what the defendant's declaration said so i think by implication the disher court didn't think that what the declaration submitted said was sufficient  fact that the district court skipped the first prong i think the district court did skip the first prong i think the district court did not and so the answer to that if you do not dispute that the just aren't resolved this on the second product so if we don't agree with you then it has to go back for a remain and or do you have some authority that supports us determining in the first instance whether mr defers counsel miss advised him i think that this court does have before it bush that the first prong of strickland is not i want to be very difficult on you but when you say i think when i ask you do you have it's ok what's your best it's not what you think it's what's out there and tell me how that fits in yes your honor so there isn't contemporary contain evidence that in this case they defer their defense counsel are firmly misled him what the court has before it are there to declarations one from defend himself ok if you have any authority to say that we can make that first prong determination in the first instance what's your best authority for that your honor i don't think there is because we didn't even address the first pro of strictly we can because that's a factual finding that the district court has to make in the first instance the district court didn't make that factual finding it assumed that the prejudice it assumed that the first  had been met for purposes of moving on to the prejudice analysis so if you're saying we can rely on the evidence that's before this court then what we have a sensually are uncontroverted the ration is from m before and his i think it was his uncle that says there was an affirmative this missing vitamin and i think you want us to do that well i think that the district court didn't say assuming that it had been met moving on to the next one yes that is  thought that they dockery sions work credible well and i do you assume that that promise satisfied or you don't move on to the second prong so we can we don't mind read things we go by what the languages and she just read assuming and then go to the you decided here the only evidence in the first prong is against you that's correct and i think if levy requires a re manned which i know you're not conceding now but if lee does that and it goes back and i don't know whether i ask co counsel if we did i mean counsel for apollo and if we did re man this because we feel the district court has to make a determination at the first prong is mr defer limited to the evidence that's in the record or could he seek to present additional evidence could the government present additional evidence at that hearing i believe that this court would be able to order a fuller evidentiary hearing if this court desire to do so but i also think that the producer did have the obligation then burned to present a case of ineffective assistance of counsel in the first instance he didn't do so and he's not seeking a further evidence sherry hearing in his briefs he's really only seeking it in the alternative if the defendant thinks that he is going to lose on this issue well you know counsel you say that the leave you know change the lens and actually whole camera and the district or did everything the district court was supposed to do under both supreme court and one circuit precedent at the time and made it perfectly adequate ruling but then the law changed and the law changed in a way that you are forced in response to because you don't have the answers understandably because you can't put yourself in the head of that of the district judge to o pine or surmise or suggest or think with the district court would do so i think the only way to find that out is if this if this panel finds that the  is controlling here would be to give the district or the opportunity to look at it and make their decision as a factual matter yes here i see that my time is up i'll continue to answer this question briefly i do think that lee did as your honor said change the lens in the camera but i also think that the facts in this case do not hold up to the standard that the supreme court said in the sense that the facts in this case rests on post hoc assertions that the supreme court specifically said were not always do you snatch defeat from the jaws of victory or do you continue on your course and i don't know i don't know what the answer is because we have a conference doneness manged hall i just i very cautiously then what i'm going to say is  that had to fair known of the clear prospect of deportation there was a reasonable probably reasonable probability which is a standard here that the decisions in this case would have been different the decisions would have been either to try to obtain a better plea agreement and in the absence of that avenue to go to trial he's indicated that in his declaration it's been corroborated now by the declaration of his uncle the uncle is not chopped liver he is a second witness he corroborate what mr de fer himself has said so this is not simply a post hoc assertion type case and therefore we would respect the conviction be vacated or in the alternative if the court wishes to return the case to the district court for the district court to make a determination on prague number one because prague number one of the district court was neutral on and in the way the minute order reads but it appears that the evidence is still uncontroverted and therefore