counsel in this case because he plead guilty due to the incorrect and objectively unreasonable advice that was provided by howard greenberg namely that as long as he pleaded guilty avoided jail kept his head law he would avoid are insufficient to cure ineffective assistance of counsel this is a position that's been taken by the fourth circuit the fifth circuit and as of a few weeks ago the eighth circuit the second point is that judge once he made his decision upon an incorrect factual determination that mr superville was subject to the ten year mandatory minimum she wasn't and that belief provided the hearing at one point judge weinstein said he was appalled that we were even here because you know he had given  days in jail and i was facing ten years next and finally judge weinstein incorrectly credited greenberg's testimony over that of our clients we know that that was incorrect in light of what we've learned from the decision which we supplemented twenty different finding and there was different different factual scenario there why it seems clearly or is that which is what i'm saying is in light of the testimony that was given before judge prescott which is the same testimony that was given before almost identical test me for judge weinstein he didn't take into consideration certain things he called them learned counsel that determination your honor is suspect judge weinstein situation and all the years he's been doing it as it turned out that was an incorrect statement when a right way to do this would be to go back judge weinstein and say there's new evidence we have this other evidence from these proceedings in front of judge prasco we'd like to offer them to you to see whether this will change your because right now you're having one trial judges finding which you want to use against this trial judge is finding in we don't know what the record was before judge roscoe well the transcripts there you are and certainly that is an how can we second guess judge weinstein's factual finding some credibility findings based on what might have happened in front of a different judge on a complete what might have been a completely different record we just don't know  asking to reverse soley on the basis of judge pressed his decision and you say that's that's a supplemental letter that weinstein makes a finding that in essence that even if your client had been told would be deported instead of would be deported he still would have gone to trial now why is that clearly erroneous why he didn't credit that he didn't credit our client's sworn statement that he would have gone to trial had he been told he would have been deported but why so why is that clearly erroneous because that's not the standard judge the cruel defense attorney has an obligation set forth by the supreme court to provide correct advice that he must get assuming era were persuaded that he would have insisted on going to trial given the warnings including the the magistrate judge the district judge the plea agreement he i think he would have gone to jail he would have taken the plea case may result in your debt deportation now the best evidence that presumptively mandatory and it's said that no one else can predict with certainty what would happen you know what's the best evidence  mean there are instances when someone is subject to mandatory deportation who is not board i mean it's one of the problems with saying with with doing a plea allocution in saying you will be deported i would be reluctant to say i got to because i don't know that that's been fact going to happen but you know honor sometimes there's i forget the terminology you make an application to the government particularly if you've been cooperating sometimes the government likes not to deport you so that's why i'm loath the saying that a judge must say you will be deported actually judge want the best evidence to show to support the position the judge weinstein may have flipped on this is that he's changed his own warnings all orders and so this is not the fact that he could be deported meanie i was definitely going to be poor this is an incorrect statement of the time that he took his plea actually your honor it was because based on this is the same two charges that he pleaded guilty and whether the air as the legal consequence of his plea with the actuality of his deportment that's what you're confusing the fact that he was removable as a matter of law did not guarantee his so he was we were issued but the fact that he was removeable didn't mean he would be removed so a lot of years ago thank you even when you were subject to mandatory deportation the government may elect not to deport you isn't that a attempting to claim name that the one year period began to run in july of two thousand and seventeen when he was taken into immigration custody and that at that time is when he determined that he could be subject to deportation but as your honour's have pointed out and the district court found there are a number of ways in which the defendant knew long before that as early as february of two thousand and fourteen the time of his plea that he could be subject to deportation as a result of his conviction it was clear during the  judge effectively said to him as a result of pleading guilty you could be subject to removal from the united states and denied citizenship and denied permission to be readmitted to the united states and the defendant stated under oath that he in fact understood those consequences even before the magistrate judge stated that to him in a written plea agreement it was it was abundantly clear that that would be a potential consequence and that not only could deportation be a consequence of his plea but that he agreed that he was willing to go forward with that even if a consequence was automatic removal and so as early as february of two thousand and fourteen he was aware that he was seventy four even if we agree that the twenty five motion news on time what about the the alternative is really not subject to the one year limitation it's not subject to the one year limitation your honor but i think that the idea is that the defendant should have been diligently pursuing his rights and if in fact  the potential of deportation in february of two thousand and fourteen and chose not to file a motion regarding same until three years later arguably it could be said that he was not diligently pursuing his rights well arguably it could be s  there is nothing in the record that would serve that the defendant would not have an effective assistance to say you could be deported in the current state of affairs at the time that the defendant was considering his  option it was not an incorrect statement to say that he could have been deported as a result of the command authority deportation yes for the reasons that your honor stated previously which is that again while he could be removed from the united states there are circumstances under which he might not be and it is accurate to say to a criminal defendant that as a possibility that defendant would then way that possibility and determine whether or not to take a plea or to go to trial is hard to decide the issue anyway right whether there was error i think that the district court declined to determine whether or not there was deficient performance and instead went straight to the prejudice analysis and under that analysis determined that there was nothing in the record to show that the defendant would not have continued to that the defendant would have gone to trial what about the case before judge how do you respond to that argument that it has no relevance to the case at bar here in first because as the as the court noted there is no record here before this court regarding what went on before judge press but even still even still in this case the district court made specific credibility findings with respect to the defendant's testimony about what his client seeing what his attorney told he did reference the mandatory minimum but at the time that the defendant was considering taking a plea he was in fact facing a ten year mandatory minimum in addition i just want to address a point that was made regarding the defendant eligibility for safety valve relief again at the time of the plea in two thousand and fourteen the defendant would not have been aware that he would have been eligible for safety valve relief and so as far as he knew he was facing a ten year mandatory minimum i think judge weinstein's decision to advise the the time sure john on that you are on that issue it goes right to the heart of why he would need a lawyer right in this case he exercised reasonable diligence he relied on his own attorney gave him incorrect advice and sought a second opinion i'm not sure how much more diligence mr superville could have exhibited between that point and again the warnings in both the plea agreement and before magistrate judge going judge weinstein all were not inconsistent with what mr greenberg and other attorney had told him that yes there was a possibility that he could be deported but not that he would be deported so again that's that's issue as a timely so when he found out about it when he knew that he would be the specific pages of judge press case transcripts so they are available for the court if the court wishes to look at it now you asked the question on the government was it incorrect it is a defense position that even at the the completion of their supervisor you know they're there they're not managed they're not immediately because there's a process but then there is no relief under the immigration law for somebody who's facing mandatory deportation