in this case and first i want to apologize to this panel your staff the clerk's office opposing counsel for my terrible mistake with  and i don't know what else to say i'm sorry they're not heard well and i want to thank you for the opportunity to be here today so thank you very much may it please the court counsel the district court granted her certificate of appeal ability quote with respect to the application of lea to the facts of this case including whether the defendant's plea agreement has did a positive effect the court attributed to it that's why we're here today lee which was issued by the supreme court last year held that a defendant adequately adequately prove adequately proved that preponderance of the evidence a reasonable probability that but for his counsel's erroneous of that us he would have rejected a guilty plea where the and the surrounding circumstances show deportation was the determine if he she and his decision to accept the plea and it was not irrational this is probably the language that was new in lee it was not irrational to reject the plague the place where there was some chance of avoiding deportation however remote here in this particular case  not correct the court said ok defense counsel said he is a permanent resident of the united states for some time the court inquired possibility of deportation defense counsel said possibility the court said ok very that immigration that that had vast to the court and what was said in court about possibility is a is wrong and  it's a it's very similar to this court's decision and i think this called swaby how i think i'm pronouncing that correctly the swaby case where the defendant pleaded guilty to certain deportation consequences here these are absolutely one hundred percent certain deportation consequences congress has to find drug trafficking as an aggravated felony under the definitions of aggravated felony section one what your problem is well it would be except what your conscience well let me be clear about that this case involves a claim of ineffective a sense of counsel extending to the advice contest that those words are in there what we do contain what he understood was that it was a possibility that he be deported not that he was first so are going to be deported if he signed this document doesn't that make a difference regardless of the immigration consequences that the police may entail even if the even if there's a comma after in tail even if the consequence is the defendant's automatic that sentence is what makes this is a tough case is because what she decides is what assess if it is death that's what makes it tough for your client but absolutely that's it that's what that's the whole controversy that's and that's part of that is what the chief justice said the told the court or by the court during the plea that it was a certainty that he would be deported no he was told the opposite was a day that the court said you also also say the court asked the lawyer it's a possibility of deportation then and the lawyer said possibility i don't think this is a card case defined deficiency the issue is going to be want to prejudice and that's  and so the issue is where this prejudice is a stamp and my point is is that part of the contemporaneous evidence your honor is is it includes ok the negotiations that did take place between defense for years and defense counsel and the u s attorney's office redrafting the plea agreement to give this false hope to my client that he could pursue these various kinds of relief and there were negotiations there were grass back and forth but there's only one plea that's correct but it but it doesn't but it doesn't change it the only is one plea agree but it's still there were negotiations leading to it and there were drafts back and forth and they go she ations but then there's only one agreement that's all there is one agreement but the other it and it says what it says what it says it what it says and he says in the last sentence even if i'm pleading guilty even live i'm leaving the country even if that she does that outweigh the other i guess that's the issue is that one sentence outweigh everything all the other every judge back time and if the consequences are automatic remove these insisted on playing guilty he got a is banished from his family for the rest of his lot and that's what the supreme court talks about in the st cyr case this sometimes it's more important to stay with the family than it is the length of the sins and and that's that's the law for me and this court cited it in the that very language so so i get what the court is saying but here we have a situation i'm just asking you questions that's all i understand the argument but that but that one provision shouldn't override every thing else in the case that the record is clear that mack hot hired this war your because she held herself out as an immigration specialist she has a radio show that she does with immigration issues it's clear that she didn't g sad when when his defense lawyer actively actively communicated to him take the deal you get a chance to stay she even says that she says i told him that so is is that the  paragraph nineteen it's in all of them because that's supposed to be the catch all but by putting that paragraph in here there's that excuse the ineffective assistance of counsel and the false assurances to be able to stay in the united states there are plenty i have read this morning factor on or to sit defend its decision making as a contemporaneous circumstance as to where they've had been given accurate immigration advice it would accepted the player taken the case to trial via i mean there's no case law on that and to try to make that extension it isn't shouldn't be the public policy of the united states it shouldn't be that you could they did that a that a single sentence in a border plate plea agreement cancels out all of the other contemporaneous evidence the council negotiated out of the final version of the plea agreement various waivers and various forms of relief she negotiated out what's called voluntary departure well aggravated felons are eligible for volunteer departure she negotiated an asylum well ag aggravated fellows aren't eligible for asylum particularly if they wait more than a year to father claim she negotiated out withholding withholding is not available to my client because it's a particular serious crime she not can't cheat she she she wrote out cancellation of removal well he's not eligible for cancellation of removal because you can't be convicted of an aggravated felony she wrote out suspension of deportation from the plea agreement point is is that these things defense counsel did that are in the record prior to the tax he pleaded guilty all show that his decision to plead guilty there determined to factor one the chance to get less time although that's a good thing are not the determining factor was he had a chance to stay in the united states after resurface tat i think you are i certainly am i was i went past apologi so for some reason i don't have swaby in front of me i have read a couple of times when was it decided limited issue swaby was decided in two thousand and seventeen your honor and the language i think you're looking for says  that conviction for a broad range of crimes can we had to have or some aggression consequences including automatic removed from the united states defendant understands that no one including his attorney or the court can predict with certainty the effects of a conviction on immigration status they say well the key what i think is the crux of this case is that this defendant cannot claim he was the type of defendant who would seek to avoid removal at all costs that's the type of defendant th addressed this is a case where the defendant is facing overwhelming evidence of guilt he's getting significant benefits from the plea agreement for him to claim that it would be rational to go to trial he has to say i'm the sort of person who despite overpowering evidence of guilt significant benefits in the plea agreement i'm going to go to trial anyway because immigration consequences matter to me that much on the prejudice i think it i think  it does and the the key point that lee is lee is addressing a defendant who is the i would accept these consequences because immigration matters to me that much and yet this colloquy said when asked the district judge personally addressed him and said you may be deported as a result of this plea and he says yes and then he signs a plea agreement that says that automatic removal could be a consequence and he is pleading guilty even if that is true and so for a defendant to say i agree the automatic removal could be a consequence here and i am nevertheless pleading guilty and yes i understand i may be deported that defendant cannot come back in a twenty to fifty five file a declaration that by the way doesn't even discuss mention or knowledge his  agreements and then say well i'm the sort of person who despite all this evidence against me and despite the significant benefits and they are significant benefits that he got from the plea i would have gone to trial ple they repeatedly said possibility i know what the paragraph not being says after it says may but during the conversation with the defendant in that court at that point you may cure that this was an you know knowing plea if they said possibility three times right two points about that the first is that this is not as an swaby where the government was saying look  colloquy corrects any missa device so there if the idea was well the attorney told you that you might be deported if you're in fact facing mandatory removal does the  or so that was the main issue and suavity she or the issue is this defendant is saying against a backdrop that's not presence why dear arkansas of overpowering evidence of guilt and significant benefits to the police that i am the sort of person who would push those aside and go to trial for the chance of avoiding removal because immigration consequences matter to me that much heure agreement he might as well take a chance that trial i don't think so because this defendant can't say i'm the sort of person who doesn't care about my sentence all i care about is the immigration consequences that's the type of defendant that the supreme court is considering and we is is the guy who says you know what even if you double my son's i want to stay in the united states so much that i'll take the small chance that i might be acquitted at trial and deported for pleading guilty and that's at appendix age sixty five he never goes back and says well you know i know i said in my plea agreement that i would plead guilty even if i were facing automatic removal but i take that back and as judge king pointed out under this court's opinion and the master this court has said in the absence of extraordinary circumstances the sworn truth of statements made during a ruhleben colloquy is conclusively established in the district court should cases that say that when you're analyzing prejudice the defendant cannot turn his back on his statements that he made in his plea colloquy and what makes this case i think different from both arkansas and swaby is the defendant is trying to say that he is the person who would go to trial regardless which can't be reconciled with what he said at the plea and the really is not a conceivable defense to the charges here this defendant was caught red handed with a got an agreement that made the where the government took out the language that he was waiving right to discretionary relief such as the convention against torture which conceivably if he could may get out factually would be something he could seek relief fund or but the key point is under levy the supreme court has said look there may be some defendants for whom the immigration consequences are so important that they will take these super long shot chances but when you come into court and you say i am pleading guilty even if that would result in an automatic removal you just can't be that person  led or whatever by the district court and i think you give his statement before the havey is court little short shrift i mean he says if i had known that by pleading guilty of be deported from this country i would have asked for a jury trial and tried to win my case even if the chance of winning might be small and i might get prison time more prison time at least i would have had a chance even if small i would have also asked mr m try to get a different plea agreement and would not get deported at least she could try i've never been in trouble like this before but it's he says in this statement that he would have gone to trial and this goes to your to the argument i thought you were  paragraph of the clause in the plea agreement would the government still be making in light of swaby light of the supreme court case and in light of this declaration and also the statements that he was supporting statements he had per his relatives didn't have that clause arguably you could say well there should have been an evidentiary hearing on this point but in this case because the defendant made under oath with the statement yeah i know i could be deported and four and twenty five that i reviewed understood my plea agreement that the defendant can't then come in and under law master and say i know i said all these things under oath but now here's my declaration promotes is the likely to say otherwise is to have a defendant like this defendant get a short sentence complete a sentence have no significant risk from blowing up the pulley i mean like well i want the benefit now  swapping is it in tension with that or a very it can be reconciled i think ultimately they can be reconciled but to the extent to the extent there is a conflict though i think that leaves the supreme court statement and weak courts ok but i would like to just focus on it mcmaster master the master sorry and i just want to be sure i understand what the government's position is if we take out the even if clause is it the government's position that what was said in this plea agreement without the even if clause that and with all the other evidence in the case would require would would make master would require us to honor the plea agreement and the defendant would lose i just don't see that because it doesn't seem to me that is directly in the language you read me from mr doesn't seem to me to cover that situation and we can then go on and talk about the even if right well so maybe i think it helps to put it more put it in concrete terms the defendant say i know i'm chasing really strong evidence and i know this plea deal is going to get me a lot of benefits but nevertheless immigration matters to me so much i want to go to trial and let's suppose all the defendant said is i'm pleading guilty even though i may be deported as a result of the plea that would be pretty hard on its face to save you know really you're the sort of person who would it but that's what's well but sloppy is a defendant who did not the court said look the defendant's wabi the courts had had some reasonable arguments if you want to trial swaby was not a case where and remember i think all these things have to be taken in conjunction you have to all goes to prejudice and it doesn't much but that's what we're talking saying neither are satisfied well i think that the case of beal and the the performance prog the case would be easier with further factual findings that haven't happened because there hasn't been an evidentiary hearing i don't want to throw this defense lawyer  bus here and there's a whole bunch of disputes about so she says that you know it's funny when consulted with her associate read as he ran says didn't the family says after the sentencing that she told them that the defendant would not be removed and she says that she did these kinds of facts ironing that out would make the performance pronk easier to analyze but i think the judge trying to cut to the chase here and under the prejudice pran the defendant's assertions in the police agreement and at the  it impossible for him to say that he is the type of defendant who cares about immigration consequences so much that he would double the sentence have an additional count and not have had that opportunity to make some limited arguments you did and he had an opportunity to argue for a sentence yes for twelve months and he got twenty four on the mandatory minimum would have been sixty five years w years exactly and i mean these the language in this plea agreement may not solve every problem but an n twenty two fifty five but in a case where the evidence is overpowering and sort of funny he's getting significant benefits the language you know needs to have some work to do and it does here because the only way out for this defendant despite that background and claim the going to trial would have been rational and we didn't disturb padilla statement that going to trial has to have been rational if that language doesn't address the point of the defendant who comes in and claims well actually i care so much about my immigration consequences that i would run headlong into much worse const much worse outcome a trial for me that language has to be able to cabin that kind of a claim that you're making claim well but you know i would emphasize to the court that the year is the combination of things that you don't always see or frequently do not see which is the significant benefits the overwhelming weight of the evidence against the defendant and him saying it's still rational for me to go to trial and i have said that i would plead guilty even if it leads to automatic removal that's just a pretty peculiar set  circumstances for a defendant who making that kind of claim it takes a defendant who you know i assume he's figuring well i'm not going to actually have to do that extra time he was only twenty eight years old at the time of the plea i mean i could understand your argument a little more if he was much older and facing a significant amount of time but at the age of twenty eight and he says it was that important to him i don't think you can say it's just not rational to think that he would rather take a chance than be deported that's old enough to get through colloquy i had him when the court and his lawyer at the qual at the plea colloquy said that it was a possibility that he would be deported that that wasn't accurate that was sure he would be deported it didn't exhaust the universe and as far as like a convention against torture claim he would understand i'm sorry what does that mean it didn't  so he could raise a claim for a convention against torture and an immigration proceeding and defeat a removal order but the point is that the the judge and the the lawyer have set forth the range of that there is this possibility out there and you can compare it to a prediction about sentencing you know we're not going to blow up please prediction about mandatory minimum sentencing if somebody in a plea colloquy was told even though they were facing a mandatory minimum of five years they were told during the  evidence of conviction received otherwise significant benefits from the plea in this case and says i would have gone to trial court wouldn't accept as rational decision the fact that there was that when when he agreed well i may face the mandatory minimum but i'm still going to plead guilty and then to have him come into court and say well but i would have gone to trial because if you had told me i definitely would get the mandatory minimum i'm the person does i guess it doesn't even completely human the supreme court rejected him is your prejudice argument it is not your honor he had no bona fide defense not even a weak one so he stood to gain nothing from going to trial but more prison time and no rational defendant charged with it deportable offense in facing overwhelming evidence of guilt to proceed to trial rather than to take a plea deal with a shorter prison interest in avoiding immigration consequences there was nothing like this language of i'm going to plead guilty even if it leads to my automatic removal and then there's footnote four and only that expressly endorses the precedent that asked does that affect your decision about whether you want to plead guilty or not lee answered yes your honor and then when the judge inquired how does it affect your decision we responded i don't understand and then turned to his counsel who gave him incorrect advice so that is quite different from this case we did not contemplate that and this case a scenario like this case i mean the supreme court also described the defendant in the levy as presenting unusual circumstances it was not a blanket rule that you could turn your back on what you said i see my red light is on and i don't want to wear out my welcome millennia is on a jury you find out what you got a sweetheart deal i mean that's the way you have to deal with it you have to deal with good looking family no prior criminal history he can testify he knows what a jury will do but if he knew he was going to be deported for sure why not rosa dash for a chance to stay with your family if that your number one priority which is why you hire them or you say she's an immigration lawyer which is why she worked so hard to remove that immigration language from the plea agreement because that was the determining factor and is no doubt about it there's nothing in this in the record this is i took the deal because i was getting less time nothing about it number two i got to go back to this plea agreement paragraph nineteen we cannot read paragraph nineteen in a vacuum it has to be writ in terms of what was overall sense the plea colloquy which is only a chance that you're going to be deported and this this one said it really bothers me the defendant understands that no one including the defense attorney of the district court can predict to a certainty the affected the defendant's conviction on the defendant's immigration status that is one hundred percent nonsense and i don't know why the district attorney's nonsense i nonsense you can absolutely one hundred percent guarantee that if you are convicted of a drug trafficking crime and you are not a citizen of the united states you will be deported now when counsel talks about the convention against torture about mechanics where he's born because he actually like an american he does dumb things like an american and he's he's got is families in america i mean he's an american except he was born in mexico and those are facts that are that are before there before the court also so my point is he is not he is not substantially different from mr lee he had a weak case but he had a chance and he was deprived of that opportunity he just deprived of the opportunity