he was convicted of conspiracy to commit credit card fraud and in february of two thousand and fifteen he was placed into immigration removal proceedings based upon that conviction he has no other criminal convictions of any kind he's since been ordered removed by the immigration courts and that decision was upheld by the board of immigration appeals shortly after he was more why isn't it that the counsel gives an individual before they plead guilty and especially in this case you can see from the trant i want you to focus on the edge of this especially in this case was given very the specific advice as to the immigration consequences and both of the advice both types of advice he was given that if there was a sentence given less than one year he wouldn't have any adverse immigration of facts and also that he would he would be able to have some sort of deportation offense in the future based upon waivers and would be able to either get a new permit resins status or complete permits not with the district courts that that's correct the thing about waivers he was just look you're going to be you're going to be convicted of a felony i can't tell you what's going to happen but there is a likelihood and it's ask not once but twice that's a very good quote that's a very good point you bring up your honor the plea transcript has a district court judge that because he's convicted of a felony he is going to face immigration consequences that's just legally incorrect the crime being a felony has absolutely nothing to do with it's the loss amount and it's the type of crime fraud so the so that roger is even better than the courts at the floor so low the court said the floor so low in its advice that they were felony that's what you're going to be and you're going to face immigration consequences well i mean area end of story why doesn't that just solve the problem with instead of well you know if there's a certain loss amount you're going to do this and he's doing a mental calculus on loss amount that's not even factored into us you're convicted of a felony going to face immigration consequences and not once but twice do you understand you understand what i'm saying to you yes yes yes and under oath i presume because most defense ruhleben admonishments are are there for just general bare bones bottom level  i know that i know that the judge took a little extra time i mean the defendant should not plead guilty if he doesn't understand that seems like it's so use to say that no matter what the miscommunication occurred between this and scowls it's another good example likely face immigration consequences likely face deportation is legally incorrect just like telling someone because you're being convicted of a felony you're going to face that's that's incorrect his attorney gave morse more pointed more specific advice then that prior to the plea hearing that meets mr relied upon i'm not saying that you i think would be unreasonable to say that you can't look at what the judge said and way that and consider it under the totality of the circumstances as far as prejudice goes i think that's reasonable but i think it is a consideration and something to look at in the totality of the circumstances as to whether this individual suffered prejudice as a whole i think it's fair to look at that but i don't think  advice given by the judge just roys his ability to show prejudice i mean he was they were obviously aware that there was going to be an immigration issue and they took substantial steps to try and mitigate that issue so you got you have the former counsel saying less than a year sentence were good if that doesn't work out because if the timing of your permanent residen you're in a better position then you would have been and it's unclear what exactly you mean by that but if you're in a more better position and if that doesn't work you'll be able to file waivers a specific affirmative immigration defense as a write in the plea transcripts and you'll be able to defend your deportation i mean these are very this is a very specific thought out planned out process that they are trying to achieve through this plea agreement ok and when he's sentenced to less than a year and then it's like sorry was wrong that doesn't work my bad bad advice prejudiced him he entered into a plea agreement that he thought was going to bring him a bit of leverage on that benefit was destroyed sorry let's all jump around this for a second where's the evidence that he would not have taken the plea and or ended up in exactly the same position if he had known and we i mean it worked out very well for him so i didn't read when it worked out very well for him but it couldn't save him from as the judge informed him from the deportation  years the guideline range it's unclear because of something transcription available but somewhere like twelve months eighteen months where's the evidence that he would have done something different had he got what you think you should have got either from the judge or as counselor yes great question so in my opinion you have to look at the once again the totality of the circumstances ok the fact that he made this such a big issue that they talked about it a lot of these pleas hearing transcripts come back it's just the drug saying something defense counsel doesn't say anything that is the typical case they took pages of the transcript here discussing the immigration consequences and whether he had discussed them with with mr super solder not and like i said they the transcript shows a clear plan of attack that was formulated in order to combat this immigration issue using this guilty plea and all of it was wrong he have done differently had he had the knowledge altered and where is the evidence of that in the record here in his in his affidavit he says that he would not have entered into a plea agreement that knew that he knew made him an aggravated and like i said we're not talking about he goes to trial if he goes to trial mandatory minimums ten years in the maximum is twenty years we're talking year so i don't think like i said if you look at all the facts of the taliban i don't think it's unreasonable to think that someone who has a mother here or five sisters here or just got his green card made obviously this big deal out of this with his counsel would have tried to give another they thought they got the right plea agreement they did it they were wrong will hear from the government please the court my name is matthew hagan's and i represent the united states in this case the question here is simple has the appellant demonstrated that the district court abused its discretion by denying the opponents petition for to immigration consequences was given the appellant cannot show prejudice under strickland because he's not demonstrated any doubt as to his guilt second after the alleged mis advice the district court unambiguous a reasonable person entering into a guilty plea who is advised by a district court that he is subject to a high likelihood that he will be deported by a very strict ins authorities having been given contrary advice his lawyer told him otherwise his lawyer said look we're good if the sentence is under way you know we're going to be good it's going to have no consequences and he thought the judge was just mouthing things she has to match at  quick yes your honor and again assuming that that that the question i'm asking is did the judges statement in open court overwhelm the advice that he believes he got in private from his attorney and he believed and how can we judge that i think at a minimum your honor it put him on notice that there was a disagreement between the district judge and his counsel as to his departed billeted and also put him on notice of that disagreement in two thousand and two that's thirteen years before he files his corn notice petition it put him on notice of that potential disagreement at a time when he could have still withdrawn his guilty plea citing ineffective assistance of counsel under strickland instead he listened to the district court's colloquy he listened to his counsel thank the district court for advising him of the significant consequence of deportation he listened to the district court ask him under oath twice if he understood the potential consequences of his plea and he proceeded to enter his plea and it's only thirteen years later once the very likely consequence of deportation has actually come to fruition that he now files this core notice petition if if we were in a twenty to fifty five situation or a direct appeal situation i think this argument might be a very different argument but we're not in those circumstances returning to the prejudiced point your honour's the record demonstrates that the appellant was desperate to avoid a trial in this case he was indicted in december of two thousand and one the trial was set for about four months later in march at the plea which was only two weeks before the set trial date a conference that was set it appears from the record at the a palace request the counsel stated to us to the court that his client was going to accept the plea and that the appellant was exploring the possibility of a cooperation agreement with the government the court said basically that's fine if you're going to do that and needs to happen before the trial date and not unreasonable position given that there were several other co defendants also scheduled for trial the counsel asked could we please extend the schedule to allow us to explore those negotiations in the court said no you can plead or we can go to trial in march plea later that same day now the fact that he was considering and exploring a cooperation agreement makes it even less likely that he would have pursued a case to trial and pursuing a cooperation agreement in all likelihood would have required him to plead guilty to an offense most likely one of the offenses charged in the indictment any of which would have qualified him for the portability had he gone to trial i think it is fair for the court to conclude from this record that he would have lost he confessed to the core facts of the government's case not once not twice but three separate times he first confessed in june two thousand and one to a radio shack corporate investigator he acknowledged that confession again was i apologize as calculated during the plea conference it was twelve to eighteen months at the end in reality it was fifteen to twenty one was i believe in the draft plea agreement that was submitted it was fifteen to twenty one i don't think there's any dispute in the record that the the range calculated at the plea conference twelve to eighteen months was a good reason to believe he could be under a year well it's important to bear in mind that this occurred in two thousand two an era when the guidelines were mandatory this is before the booker decision and as the court stated that the police conference it's very unlikely that i'll be able to depart from the sentencing guidelines in your case it would require some kind of extraordinary case for me to be outside of the twelve to eighteen months range if this sentencing were occurring today i agree the appellant might reasonably expect i might get under twelve months but at that time in two thousand and two it would have been unreasonable as the district court found in denying the core notice petition it would have been reasonable for him to conclude i'm going to get less than a year in prison because the floor of his sentence under the guidelines  felony i agree that it did not change the appellant's view as to his evaluation of his to portability that does not change the fact that the district court did everything in its power to warn him if you proceed with this plea in likelihood you will be deported that is what the ins will do and i submit at at best interpretation of that record for the power at minimum it puts him on notice that there is something wrong with the evaluation of his the portability between the district judge handling his case and his counsel that puts him on notice of the core problem and of his potential strickland claim and that's in two thousand and two that's thirteen years before he district court below yes we can see for the purposes of this case that he's suffering a continued legal injury as a as a as a work under the consequences of his two thousand and two conviction   again just to wrap up on the prejudice point he acknowledged that confession after making it again in august two thousand and one he acknowledged it a third time in november two thousand and one that's the government's appendix at one and this is not the type of case where there's disputed confession a confusing confession a post arrest confession that might get thrown out on some kind of for the moment are fifth amendment grounds three separate times he acknowledged the core facts of the government's case and so he cannot prove prejudice under strickland in the sense that he would have successfully navigated the rigors of a trial if he can't prove prejudiced under strickland he can't prove entitle me to relief under quorum no at five fifty nine us at three seventy four footnote fifteen there were numerous states including kentucky which was at issue with the case that said hey don't need to sign this responsibility to defense attorneys we got our forms we got our plea is and it goes over this possibility supreme court rejected that they put the onus on the defense attorney not at the police hearing before the police hearing and they assigned a pretty big burden to him i mean it's something you know they recognize the seriousness of the situation so i would say that that you know if this supreme court ignoring that day and so it wasn't vindicated if anything it just made it worse because it was he thought he was good for so long that it has been a long time between when he finished his probation and getting less than a year and when he bright indicated his attorneys advised grooved essentially to him or one could argue it proved to him that he i didn't take it like that i'm sorry yes all right thank you