a benefit that it did not have mr roach as attorney michael evans told him that the plea agreement anticipated sentence of less than a year in custody would be helpful under immigration law would be helpful or might be helpful he said your honor that the sentence with the sentence would be helpful your honor we're in the record can we look to find the precise wording that was used   understand it is an advice if you are not in the radar in federal custody all situation will be to your benefit so take this deal because it has the promise that you won't have to serve any federal time and therefore the immigration authorities respectfully your honor everyone believed at the time the plea agreement was signed everyone thought that it was most likely that mr roger would serve time in custody that is what mr ev thought that is what mr roach i thought they all anticipated a sentence from six to twelve months to be sure it was an unanticipated result at the end that that the judge sentenced him to a probationary sentence they have been unanticipated in some sense but it was certainly appropriate disposition and it's there's nothing about the probationary sentence that was wrong so it isn't possible there was a possible benefit going into the process if they accepted the plea agreement yes yes your hon but it wasn't an anticipated benefit it wasn't a benefit that was advertised it was not the benefit that was advertised by mr evans i more or less the everything would be helpful under one factor that's no your honor for fraud offenses that involve a lot over ten thousand dollars like count one of the plea agreement they are always an aggravated felony the sentence is completely irrelevant it's one hundred percent always an aggravated felony so far from helping him to plead remit actually guarantee that this offense would be an aggravated felony which make made to him permanently deportable from the united states and deprive him of essentially any legal avenue of being able to stay in the country with his family so could you address the apprehension this element of it so you would have to show that he would have been able to negotiate a more favorable deal that's exactly right your honor as this court just last year made clear  rodriguez vega he would have to show that it would be reasonably probable that he could have negotiated a plea agreement that lack those adverse immigration consequences in rodrigues bay got this court found that the petitioner had made that showing by starting to various plea agreements i think about five plea agreements that that particular u s attorney's office and that handled the prosecution had agreed to negotiate to that lack the adverse immigration consequences and this is not entirely  attorney's office they have different policies at different times even if you can make an argument that they should have found an alternative plea just as good for them to have accepted we have no no way to know if that would have been something that the u s attorney's office would have accepted or not and you know supplying other plea agreements where they've done now is doesn't really help on the speculative aspect of that argument well your honor that is precisely the evidence of this corpora cited are were presented to the district court in this case mr evans tried to get the deal that was a misdemeanor deal he tried to do for level reduction right as i understand it in the united states from his office why isn't it just is perhaps a stronger inference that this was the best deal that they were going to provide in this idea that they would have done any deportations safe deal we have no basis to find your honor the deal  that that council here has proposed that would have mitigated those consequences the only practical difference would it would not have changed his guidelines if the only practical difference would have been that it would not have had one hundred dollars of a special assessment it wouldn't affect anything other than just that hundred dollars your honor a misdemeanor is a much bigger ask in this case as is a four level reduction in the guidelines in for that and i would point out too that actually neither of those  declaration from a long time federal public defender that stated that she had she had been in the office had been negotiating with the u s attorney's office she had been in the office for years and that she believed under the factors of this case that she would have been able point me to the language in the case that you're relying upon to support your argument that presentation of other plea agreements satisfy your burden because it appears in that case the  referenced a prior plea agreement that was actually presented to her as opposed to just representational plea agreements for that district do you agree with that characterization of  i do agree that there was discussion of a prior plea agreement in that case but they did discuss other plea agreements offered by that u s attorney's office and i'm looking forward civically your honor if i can find the cite i believe it's on page seventy eighty eight of the federal reporter and specifically seven hundred seventy seven eighty nine and specifically footnote seven is the compendium of plea agreements or of cases in which more favorable pleas had been offered so this case falls squarely right well your honor i don't believe it was a more favorable plea agreement it was a plea that would have stipulated to or move away if i recall correctly i thought there was something  the payout seven eighty five when she when she rejected a plea agreement required her to stipulate her attorney obtained a revised plea agreement that did not include the stipulation for removal so there was in not advising her that that plea also would lead to an aggregate was an aggravated felony conviction and it was on the stipulated removeable part listen to this that the lesson that the sticking point at the time yeah so there was the first plea agreement your honor that was to that included a stipulation removal mr rodriguez bigger rejected that then there was a second plea agreement that did not have a stipulation removal but was nonetheless an aggravated felony offense apparently the attorney did not understand that it was an aggravated felony offense evans had affirmatively mis advised defendant regarding immigration consequences the district court heard testimony from mr evans and heard testimony from defendant and ultimately made a factual finding that defense counsel had not affirmatively miss advised defendant regarding immigration consequences on appeal defendant seeks to reverse that order and argues that the petition for quorum notice nobis should have been granted based on the evidence below but the evidence demonstrates that the district court did not clearly err in making the factual findings considering disputed evidence and finding that there was no merit to defendants petition for quorum notice i how can we really characterize this as anything but mis advice when as i understand it what mr evans said there is no dispute factual dispute here he he is essentially saying this is going to provide you some benefit if you accept the pl and the plea deal didn't provide any any immigration benefit as it happened because the ultimately was a probationary plea that then a fit of not being in federal custody then arise but where is where can you identify the benefit in this plea agreement that mr evans told mr roach to accept your honor let me there are two parts that question and the first premise that you said was that there's no factual dispute over what was said and let me come back to that in a minute and first address the second part of your question which i said there's no factual dispute on the question i asked i realize there are some factual disputes perhaps about how the evidentiary hearing played itself out in the testimony but on the issue of the benefit i don't think there's a factual dispute well there's the factual dispute is over what the miss advice was and are human is that defendant characterizing this advice as something different in his petition and everything up until the point that he was cross examined evidentiary hearing so setting aside what that claim was initially if we're looking at what the second claim is a sign with regard to the helpfulness of the plea agreement the benefit was a real one and it was as your honor suggested in the question it is a pragmatic benefit which was that having a plea agreement in which the defendant was allowed to argue for a minimal role the government conceded that he was entitled to a minor role reduction and that the parties would leave open other factors for argument meant that it reduced it allow defendant to seek a prepared probationary sentence reduced the chance the defendant would be placed into custody as in fact he did receive a probationary sentence and that meant the defendant would not fac immigration hold which would mean the defendant would have been immediately placed in removal proceedings upon his release from custody plea deal was not for both sides to argue for a probationary sentence the plea deal was contemplating custodial t potentially so if the advice is take this plea deal because it will provide you with immigration benefit because you're going to spend a year or less and maybe if you're lucky even less time than that and that's not much of a benefit unless by chance you get a probationary sentence but but that is potentially helpful your honor and up and the possibility to seek that probationary sentence is a real benefit what defense counsel faced here was a defendant who had committed a fraud offense with a loss of well over ten thousand dollars and who  confessed to that offense this was an aggravated felony through and through and what defense counsel tried to do was to try to mitigate the chance that the fed it would be removed as much as possible by negotiating a plea agreement in which he had the best chance of seeking a probationary sentence and in the record defense counsel mr evans testified that he did want to seek and it was his practice to seek probationary sentences for the very reasons we're discussing in that it is a real pragmatic benefit he also discussed another benefit potentially which was the idea that having a sentence of under a year could potentially provide a benefit under the under the statute because there is a chance that this offensive could have been characterized as a theft offense for example which if there was a sense of greater than a year would have also fallen would have been another way that it could have been characterized as an aggravated felony so there was also some benefit under the statute but the government certainly more clear and direct benefit here was a pragmatic one but one that was very real and had a clear benefit for the defendant importantly the district court here was also applying the standard for kwan and not the more recent standard under under the two thousand and ten decision in patea the supreme court held that defense attorneys have a duty to provide accurate advice to their clients about immigration consequences but as this court knows in china as the supreme court held that cannot be applied retroactively so for defendant to prevail here he must fall under the more stringent standard of kwan and kwan in this court's decision two thousand and five says that an attorney cannot affirmatively miss advise a defendant about immigration consequences and under that standard the district court did not clearly error in denying the petition council would you address the prejudice aspect in the event that one or more of the judges on the panel that's not  the lack of prejudice if even if we have if we think there was in effect of assistance of counsel lidge is argued that there is no question there's two points here that the government believes that there is evidence in the record that can allow the court to find that there was no prejudice but as a government asserts in its brief the prejudiced argument is not actually an argument that was fully briefed by the parties in the court below and the government would ask for an opportunity to further address that in and further develop the record in the court below if the court is seeking to reverse based on a prejudice argument i thought the district judge did ask the parties if they were going to address the prejudice question at the evidence rehearing and it was addressed it was fully discussed was well it was discussed and part of the defendant race at some time and the district court did address the prejudice argument but in some ways i believe appellate have mischaracterized the record here a little bit up until the first evidentiary hearing when the court initially issued its first order granting the motion to dismiss prior to the evidentiary hearings defendant filed its motion for relief or judgment or a motion for reconsideration and in that the defense said you were the court should not have raised prejudice this was not an issue that was raised by the parties and it has not been addressed by either party the government in a poll in responding to that said fence right this was not an issue that been ribbon raised by the parties the government is seeking to address a narrow legal claim and if the court wishes to address prejudice we would want to develop the record further at the at the in the the district court there was a discussion about what evidence would be allowed through the declarations of defendant's counsel and this is discussed a little bit in the reply brief on pages fifteen and sixteen where defendant a s that what happened is that the court said it understood that issues of prejudice were outside the record but would be allowing it that mischaracterizes that it's taken out of contest and taken out of context and  mischaracterized what the court said what the court said was that it was going to allow a declaration in from the defense counsel and that declaration was going to address the very specific question of whether defense counsel had approached the u s attorney's office with a better seeking  better disposition not whether all of these plea agreements and the policy of the u s attorney's office with providing more favorable plea agreements generally in these types of situations the council spoke a lot about rodriguez vega but i think the more instructive case here is the is the chan case that defendant relies on in their brief to talk about what a potentially more beneficial death disposition could be the general argument is that defendant could have pled only to count two of the information and not pled to count one count one of course is the only count that has a loss attached to it so it would be the government's argument that this is the more serious charge and would have likely been the charge of the government would have required the defendant to plead to as it's typically the case the government requires defendants to plead to the most most serious charge that counsel rodriguez they get this contained that foot no which references other  cases so yes why is why doesn't that support counsel's argument rodriguez vega is an alien smuggling case chan is a fraud case in chan which chance said it is that the parties agreed in the that there was a loss of six hundred five dollars the last amount was six hundred five dollars but agreed to a greater restitution amount the government would not have agreed to such a low loss amount here because the loss amount was the specific offense characteristic that was driving the sentence so for the government it would have been important to include in the factual basis of the plea agreement that the loss was ninety thousand dollars or eighty nine thousand dollars and for that reason there would have really been no way to get around the bottle your honor i want to make one point very clear and that's the distinction between the legal benefit that was advertised by mr evans and the accidental benefit of having serving no time in custody first of all mr evan said this will help you under immigration law so he advertised it as a legal benefit not merely a benefit that was temporary that was fleeting and that could end at any time that you can fly under the radar hopefully we have no no idea of knowing and if immigration comes knock knocking at your door too bad that's not what he said he said that this will help you under immigration law in other words that you will have a leg to stand on immigration court that you will be able to present your case that you will have you know some some ability legally  to argue that you're entitled to stay in the country and i think that's a very significant distinction really what mr evans did in this case was he gave mr roach a false sense of security an idea that protection wouldn't necessarily be complete but that he would the plea agreement would provide him with some legal protection some legal help and being able to stand united seriously would he go he ended up getting that level of not hundred percent comfort but he ended up not being in federal custody and therefore not on the federal radar screen and so he did get some benefit well your honor respectfully it was not a legal benefit it's not a legal benefit legally matter because he because that's not what was advertised your honor and i think again there's a very simpson if you can distinction between being able to you know having kind of a happenstance and temporary fleeting benefit that could end at any moment and having a benefit under the law  to go back to renegotiate a plea or to go to trial which let your ultimate what do you want ultimately well you are asking that the conviction be vacated and if the government does desire to press charges again