person who got the best possible sentence or a criminal could leak it i mean as good as it gets and if he were if we were to rule in your favor it's highly likely that let's say he goes to trial and if he loses he's will get much bigger sentance and still be subject to being removed i mean it sort of seems like even if you were to win any victory would i don't necessarily disagree your honor mr fazio realizes that if he does get the opportunity he starts at square one again it's not likely that the government will offer the safety valve it's not likely that the government will even offer a plea unless he pleads generally and you're absolutely right your honor then he goes back to a trial in federal court it's difficult to defeat that and he could looking at the mandatory he understands that your honor and the only explanation i can offer for someone in his position is perhaps for him the deportation issue overrides anything else with regard time he introduced guilty plea but he didn't know the certainty of deportation i think i think that's that's exactly right your honor he is indicating that he did not understand the length and breadth of the of the of the situation and he was acting on advice of counsel if you will and he's indicating that that advice was was not good advice at all i don't repress so i'm jumping ahead but in this just not sure any ineffectiveness of of counsel for a number of reasons i think there's a practical aspect to this when someone comes to an attorney and pays that attorney and says i'm putting my fa just just answer yes to the question so that's part of it the other part i think your honor is when you're talking about the difficulty mystifies he has indicated a language barrier that w not i think could have easily been overcome with an interpreter we're only talking about it as opposed to some dialect of spoken by a small community and it you know in africa something like that so we're talking about a much larger standoff sorry are you saying that you didn't understand what was going on he called he's indicating to us that and i can only say it this way i think that you know in this country who among us doesn't have someone in our family who's come here from another country who's been here for thirty five forty years and can converse with you about what they want to spend at the grocery store but doesn't necessarily understand what the district court is telling them so in those moments of doubt you turn to your attorney to explain the situation and what mr fazio is indicated to us is that that explanation wasn't appropriate not only that your honor but i think the main thing that we're talking about with the rule of a colloquy is it is not sufficient because it does not talk in terms of i think a more certainty about the outcome and says you know you could be deported even if the consequence is your automatic years that mr fazio had spent in this country was going to for some reason override the fact that this was a conviction for an aggravated felony he was completely wrong about that now with our client mister lancaster's client at th time was relying on that advice he had received before they got to court and and at a time when you're sitting in the office let's assume for the moment that right there was there was no surprise there was no speaking to an immigration expert at that point in 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 that puts this case really very different than say how much more plain can it be there is a shock factor involved with individuals who come to a federal courthouse that is hard to explain but i see it when people want to withdraw guilty pleas both on the state court level and in federal court there is as plain a language as you can make it again there is still a huge amount of faith you put in your lawyer you've gone to see this lawyer you've developed some type of relationship and you've met with this lawyer before you get to court and this lawyer has has pretty much said to you this isn't going to happen you're not going to get you're not going to get deported and so when the court says to the client to the defendant this could happen to you lawyer his lawyer saying you know this is not going to happen to you and he's putting the faith in this lawyer who he's developed this relationship with who he's paid to represent him and rather than with the court should that be the case necessarily maybe not but i think it's practically speaking that's what happens when the most i soon that's assume response you have to be green itself which says because you have consequences including deportation be because you know argument ends up being because there is that because there's not a finality to the language either even in between the plea agreement or the rule of an colloquy but what else could a court do to you or your or preclude prejudice i think in this situation the language could have been much more direct could be like right and you go well for them right and perhaps we're talking about native speaking people when we're talking about that but but i think there is there was a language issue there's a language barrier in talking about  prevail if you want to withdraw your plea but you have to get on i mean rather than have you're wife that's why it would have been my it would've been my advice to put a client directly only communicate with the court but that wasn't the advice given in this situation you wish to plea even if the consequences were automatic quotation that might be sufficient under the rule eleven amendments but what the court did in addition to that was say in correctly and contrary to the law that no one including your attorney or me or the government's attorney can predict with certainty the effect of your conviction on your immigration status that is incorrect but in effect that's pretty much believe it also could be the case for example what if the government decided not to press forward with our troops so no one can predict that you don't you love your government we've had cases where that's happened and the fact they've been mediated with someone from government as a side you know what because of the particular extenuating circumstances here we're not going to go forward yes sir but that doesn't change the fact that the string quits and the dia and the same thing happen in a race you in the third  i'm not aware of a case like that your honor but what i would say about the fact that the court said that are you willing to plea even if it results in automatic removal that's a statement  the the mr said that he would because he worked it out with his attorney but when he's told that nobody can tell him what the immigration consequences will be when  i can't tell you for certain exactly what's going to happen i can't tell you if the sun's going to come up tomorrow necessarily but it's as close to a certainty it's seems pretty certain that there will be an automatic don't know if i just don't know have we have found and i guess you haven't found either any case that says that there's prejudice on this some mischief as you agreed that he would be subject to remov l and he would agree to the plea even if it possibly was automatic removal but his calculation of the chances of whether he was going to be subject to automatic removal had a lot to do with the court saying nobody can tell saying that nobody can tell you that nobody can give you advice to dish issue when the supreme court has said that this is something that's clear that's a mystery action it doesn't certainly chair the deficiency of defense counsel when we hear from mr irene that will get mr back on the thank you thank you had hoped for and then they attempt to withdraw here somebody who attempts to withdraw before he got sentenced and despite the fact that the sentence here was remarkably media that's correct and great from his perspective the spite that he still wishes to withdraw and in effect won't roll the dice that's correct that's that's what he wants to do i don't know why he would want to do that it certainly does not make sense good judgment very at the sentencing hearing addressed that specific issue and said mr this is a sixteen defending case everybody was convicted the two or three defendants who went to trial were convicted there were many defendants all pleaded guilty in judgment very made an assessment of the case after presiding over all the  don't stand a pretty good first of all you should not have moved to withdraw your guilty plea that was mis advice secondly you would not have sit a good chance if you proceeded to trial mr vaio so clearly judgment very on was aware of that and i don't know what's going through mr fazio's mind maybe he doesn't like the hard places so he's trying out the rock i believe that the government and one of his pleadings in response to the motion of the guilty plea indicated that that's what mr fossett was doing but as for his motivations or his reasons for so doing i don't know but i would like to address the issue of the language barrier and a judgment very had the opportunity to observe mr fazio on a number of occasions in court and specifically found that  well so there's simply no support in the record indicating that mr fazio has some kind of inability to understand linguistically what was going on i believe that even if  not testify i was not the trial assistant i was not the prosecutor but i have prosecute a number of cases and i've litigated motions with drug guilty police post plea pre sentence in seventy three times and every time a defendant when he said i understand what's going on i'm willing to plead guilty even if it means i automatically partition from the united states is usually a nice response that you know i'm not familiar with the court system i do what my attorney tells me to do if he tells me to that is why i believe mr fazio did not testify you know i just just out of curiosity i know i think we're all aware that certain drug offenses are going to mean for someone who's not a citizen it's going to mean  going and the courts have used the word presumptive you know almost mandatory but they've never come out and said this is a certainty you know it's a fee to complicate it the courts have never said that it end  to roll the dice and then he goes to trial he's convicted and then maybe when he's in jail there's a change in procedure and policy now he's already served six years based upon counsel's certain advice as opposed to i don't want to say indefinite i mean because he admitted that he had been in it he admitted in several pleadings that he had been informed of the possibility of on removal in this case you know granted mr l castors advice was was optimistic in that he said you stand a chance of not being the ported but then we have to look at what the district court that in this case now when a district court did the rule  district courts are required to tell a defendant the wonder stand that if you are not a citizen of the united states and this will other possible penalties you are facing a plea of guilty may subject you to deportation exclusion or voluntary departure and fazio two thousand two thousand and ten two thousand and two thousand and ten that the that he was going to get the order but instead he does come forward with this statement saying you know these still wish to plead guilty even if it means automatic rule from the united for there is one point i would like to go to that you know one of the issues involved in this case deals with the collateral rights waiver and there were some news articles over the weekend indicating that the department of justice may be changing its policy on that i have not received official word or not but if it does i will advise this court if there is a policy change concerning whether or not the car the fact this case that i don't know ok i don't know but just what is the gist of what you are here in the eastern district i can't speak for those districts as well but if there is a policy change i will notify the court and if the court winds additional briefing i've been more than happy to provide the court with whatever response to the dia we have not yet enforce the waiver of the collateral rights so no no that's macquarie found and i can understand judgment based point of view because the direct appeal was dismissed based upon the he has a real concern about how he communicates in english and one of the issues that he was having was his ability to confidently represent what he's thinking but here you can also have an very direct and simply worded we call a quick so he might have to explain that but if this is whom he has problems with english he could easily have an interpreter and we understand that he requested record at the moment for it your honor but i saying that that's the court has posed the question as to why why he didn't testify and the only explanation that i can offer is between advice and counsel and his belief that he did not have confidence in his own ability to communicate that maybe with what is that that is not in the record that that that may be so you are right and i mean i think you have done would have been at the evidence you're hearing he's not going to testify he's going to have his way here the attorney is going to testify the reason he's not going to testify is because he doesn't understand the language and is concerned that he would not he would misapprehend questions that would be i was not counsel at that time but i don't disagree with that your honor i think that would have been a more appropriate approach to in terms of like explaining everything to the court as to how he felt the other thing is we can only address the conversation that he had with the court but i don't know